Ex parte Winton
Decision Date | 27 April 1977 |
Docket Number | No. 54508,54508 |
Citation | 549 S.W.2d 751 |
Parties | Ex parte Terry David WINTON. |
Court | Texas Court of Criminal Appeals |
This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.
On July 9, 1975, petitioner pleaded guilty to burglary and punishment was assessed at twenty years. No appeal was taken.
Petitioner attacks this indictment for failure to allege a culpable mental state.
It is fundamental that an indictment must allege all essential elements of the offense sought to be charged. See, e. g., Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 (1977); Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266 (1976); Rejcek v. State, Tex.Cr.App., 545 S.W.2d 164; Posey v. State, Tex.Cr.App., 545 S.W.2d 162; Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Ex parte Lewis, Tex.Cr.App., 544 S.W.2d 430; Willis v. State, Tex.Cr.App., 544 S.W.2d 150; Huggins v. State, Tex.Cr.App., 544 S.W.2d 147; Ronk v. State, Tex.Cr.App., 544 S.W.2d 123; Pickett v. State, 542 S.W.2d 868; Timms v. State, Tex.Cr.App., 542 S.W.2d 424; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Adams v. State, 540 S.W.2d 733.
V.T.C.A., Penal Code Sec. 1.07(a)(13) provides:
" 'Element of offense' means:
(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the offense."
V.T.C.A., Penal Code Sec. 6.02(a) and (b) provides:
V.T.C.A., Penal Code Sec. 30.02(a)(3), under which the State sought to bring this prosecution, provides:
This statutory definition of burglary does not plainly dispense with any mental element, and therefore one is required by Sec. 6.02, supra. See Day v. State, Tex.Cr.App., 532 S.W.2d 302, 305, n. 1; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844; contrast with Ex parte Ross, Tex.Cr.App., 522 S.W.2d 214.
Where a culpable mental state is an element of the offense, failure to allege this element renders the indictment fundamentally defective. Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432. The indictment here challenged is therefore fundamentally defective.
For the reasons stated, relief is granted; the conviction is set aside and the indictment is ordered dismissed.
For the reasons set forth in Davila v. State, Tex.Cr.App., 547 S.W.2d 606, I agree that the indictment is fundamentally defective, because it fails to allege a culpable mental state. I dissent solely on the ground that to permit a collateral attack upon a final judgment of conviction upon the ground of a defect in the indictment by omission of a material element is an undue expansion of the writ of habeas corpus. As to a...
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...It is fundamental that an indictment must allege all essential elements of the offense to be charged. See Ex parte Winton, 549 S.W.2d 751, 752 (Tex. Crim. App. 1977). As noted, this rule applies even if the element is one developed by case law and not specifically set out in the statute def......
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