Ex Parte Millard

587 S.W.2d 703, 1979 Tex. Crim. App. LEXIS 1513

• Court: Court of Criminal Appeals of Texas
• Decided: June 6, 1979
• Docket: 61495
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is a post conviction habeas corpus application brought pursuant to Article 11.-07, V.A.C.C.P.

On April 12, 1977, petitioner was convicted of aggravated robbery in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. At the punishment stage of the trial, a jury found the allegations of two prior convictions alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(d), to be true, and petitioner was sentenced to life.

In this habeas corpus application, petitioner contends the conviction must be set aside because one of the prior convictions used to enhance his punishment is void. Specifically, he contends his prior conviction in cause number C-71-9595-LH is void because the indictment in that case is fundamentally defective. That indictment alleged in relevant part that appellant did:

“. . . by force, threats and fraud attempt to break and enter a house there situate and occupied and controlled by Farrel K. Baker without the consent of the said Farrel K. Baker and with the intent then and there on the part of him, the said Frank Roger Millard fraudulently to take from said house corporeal personal property therein being, and belonging to the said Farrel K. Baker from the possession of the said Farrel K. Baker without the consent of him, the said Far-rel K. Baker and with the intent to deprive the said Farrell K. Baker the owner of said corporeal personal property of the value thereof, and with intent to appropriate the same to the use and benefit of him, the said Farrel K. Baker, and the said Farrel K. Baker then and there, in carrying out said design to break and enter said house with the intent aforesaid did punch hole in vent of said house, with the intent then and there to so enter .” (Emphasis added)

The trial court recommended that relief be denied because no objection on this ground was raised when proof of the prior conviction was presented during the 1977 trial. It is established however, that a collateral attack may be brought against enhancement of punishment that is based on a void prior conviction. See, e. g., Ex parte Swinney, Tex.Cr.App., 499 S.W.2d 101.¹ It is also established that an indictment must allege all essential elements of the offense. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751, and authorities cited there.

The indictment in the prior conviction, set out above, was intended to allege attempted burglary under the 1925 Penal Code. The emphasized portion, however, reveals that the name of the owner of the property was alleged where petitioner’s name should have been alleged. It alleges that the owner of the house and property committed the acts alleged, and that the intent was to appropriate property for the use and benefit of the owner. Thus, the indictment fails to allege the elements of the crime of theft, as was essential in an indictment for burglary with intent to commit theft under the former penal code. Alexander v. State, 126 Tex.Cr.R. 495, 72 S.W.2d 1073. See also, Ex parte Valdez, Tex.Cr.App., 550 S.W.2d 88; Weaver v. State, 132 Tex.Cr.R. 253, 103 S.W.2d 974; Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988. We hold that the indictment for attempted burglary in cause number G-71-9595-LH in Criminal District Court No. 5 of Dallas County is therefore void.

Because one of the prior convictions used for enhancement of punishment in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County is void, and because the punishment stage in the trial of that case was decided by a jury, the conviction must be set aside. Hickman v. State, 548 S.W.2d 736. Accordingly, the conviction in that cause is set aside and petitioner is remanded to custody to answer the indictment pending against him in cause number F77-1427-IK in Criminal District Court No. 4 of Dallas County. A copy of this opinion will be sent to the Department of Corrections.

It is so ordered.

DOUGLAS, J., dissents.

1 . We are not unaware of our decision in Ex parte Gill, Tex.Cr.App., 509 S.W.2d 357, which held that failure to object to admission of evidence of a prior conviction on grounds of denial of counsel at the revocation of probation in a prior conviction used for enhancement “constitutes a waiver of the claimed rights” (id., at 359) to assistance of counsel. At issue here, however, is not some right that can be waived, but the very power of the trial court to have heard the 1971 case, for the indictment, if fundamentally defective, deprives the trial court of jurisdiction over the case. See, e. g., Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598; cf. Drumm v. State, Tex.Cr.App., 560 S.W.2d 944.