Ex Parte Elliott

746 S.W.2d 762, 1988 Tex. Crim. App. LEXIS 38, 1988 WL 13049

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1988
• Docket: 69964
• Status: Published

Opinions

OPINION

W.C. DAVIS, Judge.

This is an application for a writ of habeas corpus pursuant to Art. 11.07, V.A. C.C.P. Applicant was convicted of the offense of gambling promotion, V.T.C.A., Penal Code, § 47.03(a)(2), and sentenced to a seven-year term of confinement in the Texas Department of Corrections with a five-thousand dollar fine. Applicant has since been released on parole after serving a part of his sentence but remains “in custody” for purposes of this application.¹

Applicant asserts that the indictment in cause number 349,395-B was fundamentally defective as it did not allege that applicant received or recorded “a bet or offer to bet.” See § 47.03(a)(2), supra. We agree and grant the requested relief.

Initially, we note that if the indictment in the case at bar is fundamentally defective, so as not to charge an offense against the laws of Texas, such indictment may be challenged in a post-conviction writ of habeas corpus. Ex parte Bartmess, 739 S.W.2d 51 (Tex.Cr.App.1987); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr. App.1975). The indictment in the present case states in pertinent part that applicant did:

intentionally and knowingly receive and record and offer to bet, over the telephone, on a sporting event, to-wit: a football game played between the Pittsburg (sic) Steelers and Cleveland Browns on November 22, 1981, from a person known only to the Grand Jury as Player 77.

It is further presented that in Harris County, Texas, JACK FENNER ELLIOTT, hereafter styled the Defendant, heretofore on or about NOVEMBER 22, 1981, did then and there unlawfully intentionally and knowingly receive and record and offer to bet, in person, on a sporting event, to-wit: a football game played between Pittsburg (sic) Steelers and Cleveland Browns on November 22, 1981, from a person known only to the Grand Jury as Player 77.

To be valid, an indictment must charge each essential element of the offense sought to be charged. See Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley, supra. It is obvious that the above-mentioned indictment fails to allege that applicant received or recorded “a bet or offer to bet.” Instead of alleging applicant received or recorded an offer to bet, the indictment alleged that he did “receive and record anci offer to bet ... on a sporting event.”² The indictment in the case at bar, when read in its logical order, alleges that applicant “received and recorded and offered to bet on a sporting event.” Read in this logical fashion, the indictment does not allege that the applicant “received and recorded a bet or offer to bet,” which would be necessary to allege gambling promotion under § 47.03(a)(2), supra. See Adley ¶. State, 675 S.W.2d 240 (Tex.App.1984), Odom v. State, 628 S.W.2d 804 (Tex.Cr.App.1982); Rush v. State, 576 S.W.2d 628 (Tex.Cr.App.1978). The bet or offer to bet is an essential element of the offense of gambling promotion and therefore must be pled and proved. See Smith v. State, 658 S.W.2d 172 (Tex.Cr.App.1983); Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1983); Adley, supra; Odom, supra; Rush, supra. The post-action phrase, "... on a sporting event, to-wit: a football game played between the Pittsburg (sic) Steelers and the Cleveland Browns on November 22, 1981, from a person known only to the Grand Jury as Player 77,” does not furnish the fatal omission. The act of receiving or recording a sporting event or football game is simply not a violation of the gambling promotion law. Section 47.03(a)(2).

A bet, as defined by V.T.C.A., Penal Code, § 47.01(1) is an agreement that, depending on chance, one stands to win or lose something of value. In the instant case, absent an allegation in the indictment that the applicant received a bet or offer to bet, or that he recorded a bet or offer to bet, the indictment fails to state a violation of the gambling promotion laws. Therefore, it is fundamentally defective.

The application for writ of habeas corpus is granted, and the prosecution under the indictment in trial court cause number 349,-395-B is hereby dismissed. A copy of this opinion shall be sent to the Board of Pardons and Paroles.

MILLER, J. concurs in the result.

1 . Art. 42.18, § 2(a) V.A.C.C.P., Vernon (1988) statutorily defines parole as a release of a prisoner from imprisonment, but not from the legal custody of the State. In addition, Art. 42.18, § 8(a), V.A.C.C.P., which went into effect September 1, 1987 and effectively replaced a similar provision in repealed Art. 42.12, § 15(f)(3), states in pertinent part:

Every prisoner while on parole shall remain in the legal custody of the State and shall be amenable to conditions of supervision ordered by the board.

Moreover, the fact that applicant is no longer actually confined in the penitentiaiy is not dis-positive of his standing before us, since during his term of parole he is "in custody" and "confined” in terms of statutory construction. See Art. 11.21, V.A.C.C.P. See also Ex parte Henderson, 645 S.W.2d 469 (Tex.Cr.App.1983); and Ex parte Peel, 626 S.W.2d 767 (Tex.Cr.App.1982). See and compare Ex parte Renter, 734 S.W.2d 349 (Tex.Cr.App.1987).

2 . The act of "offering to bet” is not an offense denounced by § 47.03(a)(2).