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McCUTCHEON v. ESTELLE

No. 72-2123.

483 F.2d 256 (1973)

Harry Walter McCUTCHEON, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.

United States Court of Appeals, Fifth Circuit.

Rehearing and Rehearing Denied November 5, 1973.

Attorney(s) appearing for the Case

Crawford Martin, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Harry H. Walsh, Texas Dept. of Corrections, Huntsville, Tex., for petitioner-appellee.

Before GEWIN, BELL and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 5, 1973.

SIMPSON, Circuit Judge:

This appeal requires that we review a judgment below granting McCutcheon's petition for the writ of habeas corpus. We reverse for reasons we will state.

In 1962, a jury in Harris County, Texas, convicted the petitioner, Harry W. McCutcheon, of assault with intent to rob. The indictment alleged two prior felony convictions for enhancement purposes under Vernon's Ann.Texas...

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