Ex Parte Chance

Court of Criminal Appeals of Texas

Ex Parte Chance

601 S.W.2d 356

CourtCourt of Criminal Appeals of Texas

DecidedJuly 9, 1980

Docket64306

StatusPublished

Cited by11 cases

This text of 601 S.W.2d 356 (Ex Parte Chance) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ex Parte Chance, 601 S.W.2d 356 (Tex. 1980).

Pincite

Opinion

OPINION

PHILLIPS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

On August 16, 1979 petitioner was convicted of burglary of a building in Cause No. 27,752 in the 27th District Court of Bell County. Petitioner urges that his conviction must be set aside because the indictment in the cause alleges an impossible date. The trial court has filed findings of fact and conclusions of law supporting petitioner’s claim. We agree that petitioner is entitled to relief.

The indictment was filed on June 20, 1979. It alleges that petitioner committed the offense on December 25, 1979. An indictment that alleges an impossible date is fundamentally defective. Ex parte Legg, 571 S.W.2d 930 (Tex.Cr.App.1978); Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964); Warner v. State, 74 Tex.Cr.R. 209,167 S.W. 1109 (1914, Opinion on Motion for Rehearing).

Although the record indicates that the State attempted to amend the date alleged in the indictment on the day of trial, it was without authority to do so. This Court has long held that the alleged date of the commission of the offense is a matter of substance, and cannot be amended. Kirkendall v. State, 78 Tex.Cr.R. 168, 180 S.W. 676 (1915); Mealer v. State, 66 Tex.Cr.R. 140, 145 S.W. 353 (1911, Opinion on Motion for Rehearing); Huff v. State, 23 Tex.App. 293, 4 S.W. 890 (1887); Drummond v. State, 4 Tex.App. 150 (1878). See Art. 27.08, V.A.C.C.P.

The relief sought is granted. The indictment and conviction in Cause No. 27,752 are set aside, and the prosecution is ordered dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

PHILLIPS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

On August 16, 1979 petitioner was convicted of burglary of a building in Cause No. 27,752 in the 27th District Court of Bell County. Petitioner urges that his conviction must be set aside because the indictment in the cause alleges an impossible date. The trial court has filed findings of fact and conclusions of law supporting petitioner’s claim. We agree that petitioner is entitled to relief.

The indictment was filed on June 20, 1979. It alleges that petitioner committed the offense on December 25, 1979. An indictment that alleges an impossible date is fundamentally defective. Ex parte Legg, 571 S.W.2d 930 (Tex.Cr.App.1978); Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964); Warner v. State, 74 Tex.Cr.R. 209,167 S.W. 1109 (1914, Opinion on Motion for Rehearing).

Although the record indicates that the State attempted to amend the date alleged in the indictment on the day of trial, it was without authority to do so. This Court has long held that the alleged date of the commission of the offense is a matter of substance, and cannot be amended. Kirkendall v. State, 78 Tex.Cr.R. 168, 180 S.W. 676 (1915); Mealer v. State, 66 Tex.Cr.R. 140, 145 S.W. 353 (1911, Opinion on Motion for Rehearing); Huff v. State, 23 Tex.App. 293, 4 S.W. 890 (1887); Drummond v. State, 4 Tex.App. 150 (1878). See Art. 27.08, V.A.C.C.P.

The relief sought is granted. The indictment and conviction in Cause No. 27,752 are set aside, and the prosecution is ordered dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

601 S.W.2d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-chance-texcrimapp-1980.

Opinion

Related

Cite This Page — Counsel Stack