Ex parte Parker

564 S.W.2d 767, 1978 Tex. Crim. App. LEXIS 1122

• Court: Court of Criminal Appeals of Texas
• Decided: April 19, 1978
• Docket: No. 58331
• Status: Published

Opinion

OPINION

PHILLIPS, Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Art. 11.07, V.A.C.C.P.

Petitioner was convicted of the offense of robbery by assault under the Old Penal Code in Cause No. 198259 using a prior conviction alleged for enhancement under Art. 62, V.A.P.C. and was sentenced to a mandatory life term in the Department of Corrections. The appeal in that conviction was affirmed in an unpublished per curiam opinion. See Parker v. State, No. 49,736 (Tex.Cr.App.1975).

Petitioner filed an application for writ of habeas corpus in the trial court, alleging that the indictment for robbery by assault was fatally defective for failing to allege “ownership of the property”.

In reviewing the record before this Court and the indictment in this cause, we are in agreement with the petitioner that the indictment for robbery by assault is fatally defective for the same reasons as set out in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App.1977).

A petitioner may challenge fundamentally defective indictments by way of post-conviction application for writ of habe-as corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Jones, 542 S.W.2d 179 (Tex.Cir.App.1977); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

The relief prayed for is granted and the prosecution under this indictment is ordered dismissed.