Harry Walter McCutcheon v. W. J. Estelle, Director, Texas Department of Corrections

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 Penal Code, Article 63. The two prior felony convictions were both proved to the jury, which returned a verdict of guilty with enhancement. 1 As required by the enhancement statute, McCutcheon was…