(dissenting).
I respectfully dissent to the majority disposition of this application.
The majority opinion states that the attack is upon the form of the indictment and upon the sufficiency of the evidence, neither of which may be raised collaterally in a habeas corpus proceeding after the conviction has become final.
I think that the holding of this court as enunciated in the case of Ex parte Daniels, 158 Tex. Cr. Rep. 2, 252 S.W. 2d 586, wherein the indictment for theft set out two prior convictions but showed that the second conviction was for an offense committed prior to the first conviction - — the court holding that the second conviction could not constitute a basis for prosecution of the accused as a third offender— is authority for holding that this court may, where the attack is leveled by habeas corpus, examine and consider the form of the indictment. If the majority opinion correctly reflects the law of this state, then the majority should overrule the Daniels case, for, to me, it is- diametrically opposed to the majority holding.
To me, Ex parte Bush, 166 Tex. Cr. Rep. 259, 313 S.W. 2d 287, is authority for this court to consider evidence where complaint is raised by habeas corpus rather than by appeal.
Although the majority holds that Ex parte Puckett, 165 Tex. Cr. Rep. 605, 310 S.W. 2d 117, does not sustain the applicant’s contention, I disagree. Puckett holds that a federal conviction used for enhancement purposes under Art. 63, P. C., *339must be for an offense which is denounced by the laws of Texas as a felony. How, then, can this court hold that an Arizona conviction, based on an information, is denounced as a felony in Texas?
I think the burden was with the State to prove the prior conviction for enhancement. This it did not do. Our statutes also say that a felony conviction must be had on an indictment returned by a grand jury. Regardless of procedure, due process may be raised any time.
I would grant the writ.