Ex parte Cannon

• Citation: 546 S.W.2d 266
• Decision Date: 12 May 1976
• Docket Number: No. 51046,51046
• Parties: Ex parte James Earl CANNON.
• Court: Texas Court of Criminal Appeals

Page 266

546 S.W.2d 266

Ex parte James Earl CANNON.

No. 51046.

Court of Criminal Appeals of Texas.

May 12, 1976.

On State's Motion for Rehearing Nov. 10, 1976.

State's Second Motion for Rehearing Denied Feb. 23, 1977.

Barry P. Helft, Dallas, for appellant.

Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

Petitioner was convicted of the offense of burglary of a habitation on his plea of guilty before the court, and assessed a five year term of imprisonment on June 27, 1974. No appeal was perfected in the cause.

Petitioner filed his application for writ of habeas corpus with the trial court alleging that his indictment in this case was fundamentally defective because it did not contain allegations in the state's pleading that appellant 'willfully, knowingly, and intentionally' committed said offense. In other words, petitioner's pro se complaint charged that the indictment failed to allege a culpable mental state. See V.T.C.A. Penal Code, Sec. 6.02(d). The trial court denied the writ, finding that petitioner had waived any complaint to the indictment since no objection had been raised at trial.

In addition to petitioner's pro se complaint that the indictment fails to allege a culpable mental state, petitioner's attorney has filed a brief which also points out that this indictment for burglary of a habitation fails to allege that the entry onto the premises was accomplished 'with the intent to commit a felony or theft.' See V.T.C.A. Penal Code, Section 30.02(a)(1).

Initially, we note that if the indictment in the case at bar is fundamentally defective, so as not to charge an offense against the laws of Texas, said indictment may be challenged in a post-conviction habeas corpus case. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975). The indictment in the present case reads as follows, to-wit:

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled, sworn and charged to inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court, --- of Dallas, County, at the JANUARY Term, A.D., 1974, that one,

JAMES EARL CANNON

hereinafter styled Defendant, on or about the 23 day of April in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.

It is obvious that the above-mentioned indictment fails to allege that petitioner entered the habitation 'with the intent to commit a felony or theft'. The allegation in the indictment that the petitioner intended to 'exercise control over the property' is not sufficient to allege the crime of theft. Under V.T.C.A. Penal Code, Section 31.03, theft is defined, for our purposes, as occurring when a person 'exercises control over the property, without the owner's effective consent.'

The indictment in the case at bar, if read in its logical order, alleges that appellant 'unlawfully entered a habitation without the effective consent of Robert N. Smith, the said owner, with the intent to exercise control over the property of Robert N. Smith'. Read in this logical fashion, the indictment does not allege that the appellant intended to 'exercise control over the property without Robert N. Smith's consent' which would be necessary to allege theft under V.T.C.A. Penal Code, Section 31.03. See Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975). The intent with which entrance was made is an essential element of the offense of burglary and therefore must be pled and proved. See Lowe v. State, 163 Tex.Cr.R. 578, 294 S.W.2d 394 (1956); Marquis v. Benfer, 298 S.W.2d 601 (Tex.Civ.App.--San Antonio 1956, writ ref'd n.r.e); Green v. State, 437 S.W.2d 558 (Tex.Cr.App.1969). See also Williams v. State, 505 S.W.2d 838 (Tex.Cr.App.1974); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).

The indictment being fundamentally defective, and not alleging an offense against the laws of Texas, same is insufficient to support a conviction, and therefore this conviction is void. See Standley v. State, supra; Ex parte Roberts, supra.

Petitioner's pro se complaint that the indictment fails to allege a culpable mental state need not be reached at this time since the indictment is fundamentally defective for other reasons.

The petition for writ of habeas corpus is granted, and the indictment in trial court cause number C--74--5617--PK is hereby dismissed, and petitioner is ordered released from custody.

It is ordered.

ODOM, Judge (concurring).

I concur in the majority's disposition of this habeas corpus action filed pursuant to Article 11.07, V.A.C.C.P.

Presented for this Court's consideration is whether the indictment is fundamentally defective. If the indictment fails to allege an offense against the laws of Texas, then it was insufficient to invoke the jurisdiction of the trial court, and the conviction was void and subject to attack at any time. On the other hand, if the indictment is merely duplicitous, fails to give sufficient notice of what acts are charged, or fails to allege sufficient facts to bar a subsequent conviction, then any complaint would be of nonjurisdictional defects, and be deemed waived by the failure to make timely objection. See American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598, 604.

Our attention should therefore be directed to the sufficiency of the indictment to allege an offense against the laws of Texas. Because such a defect, if shown, is jurisdictional in that it goes to the power of the trial court to hear the case and to enter a judgment of conviction against him, it may be asserted at any time.

It is fundamental in our system of government that sovereignty resides in the people and that the State may exercise only those powers given to it by law, and only in the manner and according to the forms authorized by law. Courts may exercise only those powers granted them, and even those powers may be exercised only when the power to act is properly invoked. These principles are stated in many decisions of the high courts of this State, some of which follow.

Chief Justice Cureton, speaking for the Supreme Court of Texas in Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, wrote:

"Judicial power' is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for a decision. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 47 S.Ct. 282, 71 L.Ed. 541; 11 Texas Jurisprudence, pp. 711, 712, Sec. 9, and cases cited in the notes.'

'Jurisdiction' refers to the exercise of this power. In Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, Chief Justice Cureton stated this truth thusly:

'Jurisdiction is power to hear and determine the matter in controversy according to established rules of law, and to carry the sentence or judgment of the court into execution. Banton v. Wilson, 4 Tex. 400, 402; Withers v. Patterson, 27 Tex. 491, 496, 86 Am.Dec. 643; Templeton v. Ferguson, 89 Tex. 47, 54, 33 S.W. 329: G.T. & W. Ry. Co. v. Lunn (Tex.Civ.App.), 141 S.W. 538, 541; Corpus Juris vol. 15, pp. 723 to 726; Swift & Co. v. Memphis Cold Storage Warehouse Co., 128 Tenn. 82, 158 S.W. 480, 485.'

The Court of Criminal Appeals, speaking through Judge Davidson in Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, said, '. . . jurisdiction means the power of the court to hear and to determine the case.'

Necessary to the exercise of its power, a court must secure jurisdiction to do so, which jurisdiction is of three parts. This truth was expressed in Parr v. State, 108 Tex.Cr.R. 551, 1 S.W.2d 892, quoting from Taylor v. State, 81 Tex.Cr.R. 347, 197 S.W. 196, as follows:

'There are three questions, as a general proposition, of jurisdiction: First, of the person; second, of the subject-matter, and, third, the power of the court to render the particular judgment it does render. Without a concurrence of these there can be no legal authority in the court to try the case or render a judgment.'

For additional statements of the meaning of jurisdiction, see Emery v. State, 57 Tex.Cr.R. 423, 123 S.W. 133; Farmers' Nat. Bank v. Daggett, Tex.Com.App., 2 S.W.2d 834, 839; Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674; 16 Tex.Jur.2d, Criminal Law, Sec. 191; 22 C.J.S. Criminal Law § 107.

The requirement of jurisdiction before action is fundamental to our system of government. In State v. Klein, 154 Tex.Cr.R. 31, 224 S.W.2d 250, a writ of prohibition to prevent an unlawful exercise of power by the District Court of Willacy County issued after reasoning founded upon the principle, 'For a court to act, it must have jurisdiction to do so. This is fundamental. 11 Tex.Jur., Courts, Sec. 9, p. 711; 12 Tex.Jur., Criminal Law, Sec. 111, p. 385.'

All jurisdictional requirements must be satisfied or the court's action, other than dismissal, is void. 'There are three facts that seem to be absolutely necessary to the jurisdiction of the court or as jurisdictional questions: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, to render the particular judgment rendered. Otherwise, the prosecution will be void, as also the judgment.' (Emphasis added.) Emery v. State, supra. 'If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is...