Ex parte Gonzales

557 S.W.2d 790

Opinion

OPINION

DALLY, Commissioner.

A post conviction application for writ of habeas corpus has been filed pursuant to the provisions of Art. 11.07, V.A.C.C.P. The petitioner was convicted for the offense of burglary of a habitation; punishment is imprisonment for 99 years.

The petitioner alleges that the indictment is fatally defective in that it fails to allege a culpable mental state. The indictment alleges that the appellant: “ . . did then and there enter a habitation without the effective consent of John Nelson, the owner, and therein attempted to commit and committed theft; . . . ”

The indictment in this case is substantially the same as that quoted in Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977), and relief must be granted as it was in Ex parte Winton, supra,¹ because the indictment which fails to allege a culpable mental state is fundamentally defective.

The relief prayed for is granted; the conviction is set aside and the indictment is ordered dismissed.

1 . The indictment in Ex parte Winton, supra, alleged that Winton: “ . . . did then and there enter a building without the effective consent of Gary Minshew, the owner, and therein attempted to commit and committed theft . . ."