Ex parte Roberts, 47975
| Decision Date | 19 December 1973 |
| Docket Number | No. 47975,47975 |
| Parties | Ex parte Benel ROBERTS. |
| Court | Texas Court of Criminal Appeals |
Ray J. McQuary, Rosharon, for appellant.
Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
This is an application for writ of habeas corpus in which the petitioner, an inmate in the Texas Department of Corrections, seeks relief from confinement.
Petitioner was convicted of the offense of 'willfully and mischievously injuring personal property', on his plea of guilty to the court, and assessed a ten year probated sentence on October 4, 1970. On August 18, 1971, petitioner's probation was revoked and he was sentenced to ten years in the penitentiary. No appeal was taken from either the original trial or the probation revocation.
Petitioner filed his application for writ of habeas corpus with the trial court, alleging numerous grounds of relief, one of which was that the indictment in this case was fatally defective. The trial court found that the indictment was so defective, and recommended that the writ be granted.
In view of our disposition of this case, we do not feel that it is necessary to give an extended discussion as to the merits of petitioner's claims. We are of the opinion that the allegation raised by the petitioner cannot, and should not, be raised by way of a collateral attack in post conviction habeas corpus proceeding after the conviction has become final.
In the case at bar, indictment alleged that the petitioner on October 12, 1969, did then and there:
'. . . unlawfully and willfully and mischievously injure certain personal property then and there over the value of fifty (50) dollars; the same being then and there an automobile then and there the property of Early Wesley by then and there breaking the back glass with a rock.'
There is authority for the proposition that such an indictment is fatally defective since it fails to allege the extent of injury and therefore does not allege an offense under Texas law. See Jones v. State, Tex.Cr.App., 377 S.W.2d 205. We agree with the trial court that the indictment was defective, but it is obvious that the indictment was not Void ab initio.
This court has continually ruled that a habeas corpus attack is a very limited remedy and only provides relief under certain circumstances. We have held that an inmate cannot attack the sufficiency of the evidence to support a guilty plea...
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Ex parte Cannon
...at the trial is insufficient to support the conviction provided some evidence has been introduced at the trial. See Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973), and Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974). In such an instance there is a possibility that some harm Sometime befo......
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Alexander v. McCotter
...this ground, that the alleged defect deprived the convicting court of jurisdiction as is necessary under Liner. See Ex parte Roberts, 502 S.W.2d 802, 803 (Tex.Crim.App.1974) (malicious injury to property indictment which is defective for failure to allege the extent of injury to the propert......
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...rule as to the necessity of an objection to complained of evidence has been applied by this Court in habeas corpus cases. Ex parte Roberts, Tex.Cr.App., 502 S.W.2d 802; Ex parte Kirby, Tex.Cr.App., 492 S.W.2d 579; Ex parte Kelly, Tex.Cr.App., 484 S.W.2d 773; Ex parte Kirk, Tex.Cr.App., 478 ......
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Ex parte Mattox
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