Ex parte Lewis
| Decision Date | 22 December 1976 |
| Docket Number | No. 53481,53481 |
| Citation | 544 S.W.2d 430 |
| Parties | Ex parte Bob LEWIS. |
| Court | Texas Court of Criminal Appeals |
This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.
Petitioner was convicted of the offense of aggravated assault with a deadly weapon on March 14, 1975, and granted a six year probated term. On May 18, 1976, the probation was revoked. No appeals were taken.
Petitioner filed his application for writ of habeas corpus with the trial court, alleging that the information 1 upon which petitioner was convicted was fundamentally defective since the information failed to allege the name of a complainant and since there was no allegation that the accused caused or threatened to cause harm or injury to another as required under V.T.C.A., Penal Code Sections 22.01 and 22.02.
The information in petitioner's case, omitting the formal parts, alleges:
'Bob Lewis, who is hereinafter styled defendant, on or about the 12th day of March, A.D., 1975, and before the making and filing of this Information, in the County and State aforesaid, did then and there intentionally and knowingly use a deadly weapon to-wit: a firearm, that in the manner of its use and intended use was capable of causing death and serious bodily injury.'
The trial court has recommended that the writ be granted since the information is fundamentally defective, and the State's brief concedes that error of fundamental dimensions has occurred. We agree, noting that it is fundamental that the name of the complaining witness is a necessary requisite to a valid indictment or information. See Articles 21.02, 21.07, and 21.21, V.A.C.C.P. We are also in agreement that the information in the case at bar fails to properly allege that the appellant caused or threatened to cause harm or injury to another as required by the provisions of Sections 22.01 and 22.02, supra. See Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975).
Furthermore, it is apparent that petitioner may challenge fundamentally defective indictments by way of a post-conviction application or writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Huggins v. State, 544 S.W.2d 147 (1976).
For the reasons stated, the relief is granted, the...
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State v. Pierce
...a complaining witness in the information itself. Appellee, in the trial court and in his appellate brief, relied upon Ex parte Lewis, 544 S.W.2d 430 (Tex.Cr.App.1976). Lewis held that a felony information 2 charging aggravated assault with a deadly weapon was fatally defective for failure t......
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Fisher v. State
...Spain, 589 S.W.2d 132 (Tex.Crim.App.1979) (indictment failing to allege culpable mental state fundamentally defective); Ex parte Lewis, 544 S.W.2d 430 (Tex.Crim.App.1976) (indictment that did not allege victim's name fundamentally defective); Saunders v. State, 528 S.W.2d 843 (Tex.Crim.App.......
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Ex parte Amador, PD-1072-09.
...Id. at 889. 24 Tex. Penal Code § 21.08(a). 25 Wallace v. State, 550 S.W.2d 89, 91 (Tex.Crim.App.1977). 26 Id. 27 See Ex parte Lewis, 544 S.W.2d 430, 431 (Tex.Crim.App.1976); see also Fisher v. State, 887 S.W.2d 49, 55 n. 8 (Tex.Crim.App.1994) (citing Lewis for the proposition that the absen......
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Pringle v. State
...statements therein. We cannot agree. An information is fundamentally defective if it fails to name a complainant. Ex Parte Lewis, 544 S.W.2d 430, 431 (Tex.Crim.App.1976). However, the information in the record of this cause names Barbara Laase as complainant and is therefore sound. Appellan......
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Table of cases
...parte Johnson , 876 S.W.2d 340 (Tex.Crim.App. 1994), §15:04 Ex parte Jones , 957 S.W.2d 849 (Tex.Cr.App. 1997), §14:130 Ex parte Lewis , 544 S.W.2d 430 (Tex.Crim.App. 1976), §16:24 Ex parte Lewis , 892 S.W.2d 4 (Tex.Cr.App. 1994), §14:90 A-526 Texas DWI Manual Ex parte Lucke , 742 S.W.2d 81......
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Charging Instruments
...Witness One case has suggested that an information is fundamentally defective for failure to name a complainant. [ Ex parte Lewis , 544 S.W.2d 430 (Tex.Crim.App. 1976).] However, another court has held that since the o൵ense of DWI does not require a “victim,” the information is valid withou......
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Charging Instruments
...Witness One case has suggested that an information is fundamentally defective for failure to name a complainant. [ Ex parte Lewis , 544 S.W.2d 430 (Tex.Crim.App. 1976).] However, another court has held that since the o൵ense of DWI does not require a “victim,” the information is valid withou......
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Charging Instruments
...Witness One case has suggested that an information is fundamentally defective for failure to name a complainant. [ Ex parte Lewis , 544 S.W.2d 430, 431 (Tex.Crim.App. 1976), no pet.] However, another court has held that since the offense of DWI does not require a “victim,” the information i......