Ex parte Kirby, 68834
| Decision Date | 10 November 1981 |
| Docket Number | No. 68834,68834 |
| Citation | 626 S.W.2d 533 |
| Parties | Ex parte Laverne Ray KIRBY. |
| Court | Texas Court of Criminal Appeals |
This is an application for writ of habeas corpus filed following a conviction for delivery of marihuana in cause 3803 in Criminal District Court No. 1 of Tarrant County.
Petitioner bases his application on the contention that the indictment in his case is fundamentally defective in that it failed to allege the required culpable mental state for delivery of marihuana. Initially, the State responded by conceding the defect and urging that relief be granted. The trial court ruled in its findings of fact that the indictment omitted any allegation of intent or knowledge and also recommended that relief be granted. Although the State has urged a re-examination of the jurisdictional requirements for the charging instrument in a criminal case, we agree that the indictment contains a fundamental defect and that the conviction is void.
Section 4.05(d) of the Controlled Substances Act provides that a person commits an offense if he "knowingly or intentionally" delivers marihuana. The indictment charging the petitioner under this section alleges in pertinent part:
"that Laverne Ray Duke Kirby hereinafter called Defendant, in the county of Tarrant and State aforesaid, on or about the 19th day of December 1974, did then and there deliver to M. DeLaFlor marihuana of more than one-fourth of an ounce."
The indictment is fundamentally defective for failing to allege a culpable mental state. Goss v. State, 582 S.W.2d 782 (Tex.Cr.App.); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.). Such an indictment does not allege any offense against the law and is utterly insufficient to invoke the jurisdiction of the trial court. Any conviction based on judicial action without jurisdiction is void and challengable by way of post-conviction application for writ of habeas corpus. Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.); Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.).
Although the State concedes that the defect renders the conviction void, it is argued that "the trial court obtains subject matter jurisdiction so long as the charging instrument substantially charges a crime within the court's jurisdiction...." Additionally, it is proposed that if the indictment appears to charge a felony offense, then the court has jurisdiction even though the indictment contains a defect in its pleading.
This argument, however, fails to recognize the distinction between jurisdictional defects and insufficient notice of the offense charged. In short, jurisdiction cannot be "substantially" invoked. It either attaches or it does not. It encompasses the power and authority of the court to determine all essential questions in the case. Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App.). Jurisdiction must be invoked by properly and completely alleging an offense against the laws of Texas and the test is not to be applied by hindsight. In other words, a defect in the charging instrument...
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Lowery v. Estelle
...subsequent order purporting either to reinstate the cause or enter judgment thereon is void ab initio, Garcia at 528; Ex Parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981). The defect cannot be waived, but can be raised at any point in direct or post-conviction proceedings, Kirby at 534; Ex......
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...Tex.Jur.3rd, Courts, § 46, p. 304. Jurisdiction cannot be "substantially" invoked; it either attaches or it does not. Ex parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981). "Furthermore, it is likewise axiomatic that where there is no jurisdiction, 'the power of the court to act is as absen......
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...notice of the charges contained in the indictment. For recent discussion on the jurisdictional aspects of an indictment, see Ex parte Kirby, 626 S.W.2d 533 (1981).4 A. (By Petty): We had sat there approximately thirty or thirty-five minutes when a Sheriff's officer drove past our location a......
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...our judgment in this case is void ab initio, and therefore properly challenged in this collateral attack. See Ex Parte Kirby, 626 S.W.2d 533, 534 (Tex.Cr.App.1981) (“judicial action without jurisdiction is void and challengable [sic] by way of a post-conviction application for writ of habea......
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...Wilson 588 S.W.2d 905 (Tex. Crim. App. 1979) 3:1440, 13:160 F Fann v. State 696 S.W.2d 575 (Tex. Crim. App. 1985) 6:740 Ex parte Kirby 626 S.W.2d 533 (Tex. Crim. App. 1981) - F - C-15 Table of Cases Name Citation Court Section 6:160, 6:1610, 6:1780, 6:2270, 9:580, 11:975 Feldman v. State 57......
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