Donald Ray Lewis v. Raymond K. Procunier, Director, Texas Department of Corrections

REAVLEY, Circuit Judge:

Donald Ray Lewis brings this 28 U.S.C. § 2254 attack upon his 1974 Texas conviction for aggravated robbery and 50 year prison sentence. The district court granted the writ on the ground that counsel’s failure to appeal the variance between the indictment and jury charge cost Lewis an automatic reversal and that assistance of counsel therefore failed to satisfy constitutional requirements. We reverse and dismiss.

Donald Lewis and his brother Lawrence were tried together for violation of Section 29.03 of the Texas Penal Code (Aggravated Robbery), which provides in part:

A…