Ex parte Page

563 S.W.2d 822

Opinion

OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P. Petitioner was convicted of the offense of unlawful delivery of a dangerous drug, diazepam. His punishment was assessed at two years, probated.

After reviewing the application for a writ of habeas corpus, the trial court made findings that the indictment was fatally defective under this Court’s holding in Henderson v. State, 560 S.W.2d 645 (Tex.Cr.App.1977).

An examination of the record indicates that petitioner was convicted for the offense of delivery of a dangerous drug, diazepam. He is entitled to relief in view of the fact that there is no longer any penalty provided for such offense. See Henderson v. State, supra; Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977); Riddle v. State, 560 S.W.2d 642 (Tex.Cr. App.1977).

A fundamentally defective indictment may be challenged by post-conviction writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1977).

For the reasons stated above, conviction of the trial court in Cause No. F-77-6038KL is set aside and the relief sought is granted.