Bavousett, Corey Shawn

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-94,310-01

EX PARTE COREY SHAWN BAVOUSETT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 26,081 IN THE 1A DISTRICT COURT FROM TYLER COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to aggravated assault with a deadly weapon (count one) and deadly weapon in a penal institution (count two), and was sentenced to eight years’ imprisonment. Applicant did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

In his application, Applicant alleges, among other things, that his indictment was defective.

Applicant contends that the location alleged in the indictment was the incorrect location and not located within Tyler County, and his name was misspelled. The trial court recommends granting relief on this ground and vacating Applicant’s conviction. We disagree.

“If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post-conviction proceeding.” TEX . CODE CRIM . PROC. art. 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). A claim that the indictment was fundamentally defective “may be cognizable in a writ of habeas corpus, but only if it alleges that the indictment is so deficient that it fails to vest the trial court with jurisdiction.” Ex parte Reedy, 282 S.W.3d 492, 502 (Tex. Crim. App. 2009). Here, although the location of the offense alleged in the indictment was incorrect, the correct location was located within Tyler County. Had Applicant objected to the indictment prior to pleading guilty, the indictment could have been amended to allege the proper location of the offense and to correct the spelling of Applicant’s first name. The defects that occurred here are defects of form or substance, and Applicant should have objected prior to pleading guilty. Because he did not, and his other claims are without merit, relief is denied.

Filed: January 11, 2023 Do not publish