Chance v. State

563 S.W.2d 812, 1978 Tex. Crim. App. LEXIS 1037

• Court: Court of Criminal Appeals of Texas
• Decided: February 8, 1978
• Docket: 56914
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated promotion of prostitution. Trial was before the court upon a plea of guilty and punishment was assessed at seven years.

At the outset, we are confronted with a fundamentally defective indictment which requires review as unassigned error “in the interest of justice” under Art. 40.09, Sec. 13, V.A.C.C.P. See Zachery v. State, Tex.Cr.App., 552 S.W.2d 136.

V.T.C.A., Penal Code, Sec. 43.04(a), “Aggravated Promotion of Prostitution,” provides:

“A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” [Emphasis supplied.]

The indictment, omitting its formal parts, alleges that on or about June 16, 1974, appellant:

“did then and there unlawfully control and supervise and manage a prostitution enterprise that uses two prostitutes in that the said Defendant did then and there manage a call-girl operation using two prostitutes, to wit Renee Suzette Clark and Charlotte Boatwright.”

The definition of the offense set forth in Sec. 43.04(a), supra, prescribes the requisite mental state “knowingly.”

The indictment, having failed to allege an essential element of the offense, the culpable mental state “knowingly,” is fundamentally defective. Huggins v. State, Tex.Cr.App., 544 S.W.2d 147; Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Price v. State, Tex.Cr.App., 523 S.W.2d 950.

The judgment is reversed and the prosecution under the indictment is ordered dismissed.