Zachery v. State
Decision Date | 08 June 1977 |
Docket Number | No. 55088,55088 |
Citation | 552 S.W.2d 136 |
Parties | Norman James ZACHERY, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Appellant waived trial by jury and entered a plea of guilty before the court to the offense of attempted rape. Punishment was assessed at imprisonment for ten (10) years.
At the outset we are confronted with a fundamentally defective indictment which requires review as unassigned error "in the interest of justice" under Article 40.09, Sec. 13, Vernon's Ann.C.C.P.
V.T.C.A., Penal Code, Sec. 21.02, provides:
V.T.C.A., Penal Code, Sec. 15.01, defines criminal attempt as follows:
V.T.C.A., Penal Code, Chapter 6, provides for culpability generally. Section 6.02 provides:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.
"(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged."
It is clear from a reading of the definition of the offense of rape in Section 21.02 that it does not itself prescribe a culpable mental state, but one is nevertheless required by Section 6.02 because Section 21.02...
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Ex parte McWilliams
...fails to allege that element, the indictment is fundamentally defective and will not support a conviction. See, Zachery v. State, Tex.Cr.App., 552 S.W.2d 136. We find that petitioner's indictment for aggravated rape fails to allege an offense and that the conviction based thereon is void. T......
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Johnson v. State
...to stop and render aid); West v. State, 567 S.W.2d 515, 516 (Tex.Crim.App. [Panel Op.] 1978) (criminal trespass); Zachery v. State, 552 S.W.2d 136, 137 (Tex.Crim.App.1977) (attempted rape); Tew v. State, 551 S.W.2d 375, 376 (Tex.Crim.App.1977) (unlawful possession of firearm by felon); Ex P......
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Porter v. Estelle
...double jeopardy, see Tatum v. State, 534 S.W.2d 678, 680 (Tex.Cr.App.1976), a fundamentally defective indictment, see Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977), the trial court's assessment of a greater punishment after conviction on retrial, see Lechuga v. State, 532 S.W.2d 581, 5......
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Schlang v. Heard
...mental state is a fatal defect in the charging instrument. Ex parte Rogers, 589 S.W.2d 132 (Tex.Cr.App.1979) (en banc); Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977); Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr.App.1976). Thus, the second ind......