Ex Parte Bailey

600 S.W.2d 331, 1980 Tex. Crim. App. LEXIS 1258

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1980
• Docket: 64611
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus. Article 11.07, V.A.C.C.P.

Bailey was charged with murder under V.T.C.A., Penal Code, Section 19.02(a)(3), which reads as follows:

“(a) A person commits an offense if he:

“(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in the furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”

The indictment states the following facts:

“And the Grand Jury aforesaid do further present in and to said Court at said term that RONALD CRAIG BAILEY, hereinafter referred to as the Defendant, on or about March 27, 1974, did then and there unlawfully commit and attempt to commit a felony, namely, Injury to a Child, and in the course of and in furtherance of the commission and attempt, the Defendant did commit and attempt to commit acts clearly dangerous to human life which did cause the death of Deandra Clark, hereafter styled the Complainant, namely, beating and bruising the Complainant, a child less than fifteen years of age, with a belt and by some manner and some means, instruments, and weapons unknown to the Grand Jury.”

Bailey contends that his indictment is fundamentally defective because it fails to allege a culpable mental state. We disagree.

The indictment sets forth all the elements of the statute. We have held, since Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), that only those indictments which fail to set forth an offense will be considered fundamentally defective and susceptible to challenge for the first time in a post-conviction writ of habeas corpus. Ex parte Valdez, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Seaton, 580 S.W.2d 593 (Tex.Cr.App.1979); Ex parte Sharpe, 581 S.W.2d 183 (Tex.Cr.App.1979). No claims that petitioner was deprived of adequate notice can be raised in an action under Article 11.07, V.A.C.C.P.

The word attempt includes intent. See Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973). The indictment here is not fundamentally defective.

Petitioner’s requested relief is denied.