Ex parte Eldridge
| Decision Date | 01 November 1978 |
| Docket Number | No. 58265,No. 3,58265,3 |
| Citation | 572 S.W.2d 716 |
| Parties | Ex parte George ELDRIDGE |
| Court | Texas Court of Criminal Appeals |
Before ROBERTS, ODOM and DAVIS, JJ.
This is a post-conviction habeas corpus application. See Art. 11.07, Vernon's Ann.C.C.P Appellant contends that the felony information used to commence the prosecution against him is fundamentally defective. The trial court has recommended that the relief requested be granted. We agree and grant the requested relief.
The information constitutes an attempt to charge appellant with the offense of unlawful possession of a firearm by a felon. V.T.C.A., Penal Code, Section 46.05. That statute provides:
Thus, the elements of the offense are:
(1) a person
(2) who has been convicted of a felony
(3) involving an act of violence or threatened violence to a person or property
(4) who possesses a firearm
(5) away from the premises where he lives.
A reading of this information reveals that it omits the fifth of these elements: there is no allegation that the firearm was possessed away from the premises where appellant lived.
An indictment or information which does not allege all of the elements of the felony charged does not invoke the jurisdiction of the district court. Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Carpenter v. State,551 S.W.2d 724 (Tex.Cr.App.1977). Since the information in this case fails to allege the necessary element that the firearm was possessed away from the premises where appellant lived, it does not charge a felony offense.
The information is also defective in failing to allege that the rape alleged to have been previously committed was a felony involving an act of violence or threatened violence. This is an essential element, since some felonies including rape can be committed with or...
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