Ex Parte Patterson

902 S.W.2d 487, 1995 Tex. Crim. App. LEXIS 75, 1995 WL 379817

• Court: Court of Criminal Appeals of Texas
• Decided: June 28, 1995
• Docket: 71961
• Status: Published

Opinions

OPINION

MANSFIELD, Judge.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted following a plea of guilty of burglary of a building, in Cause No. CRA-14,569 in the 142nd Judicial District Court of Midland County. Applicant was sentenced to 5 years confinement pursuant to a plea agreement.

In this application for habeas corpus relief, Applicant contends the indictment upon which he was convicted is fundamentally defective for failing to allege the name of the person alleged to have committed the offense.¹ The indictment states in pertinent part:

THE GRAND JURY, ..., upon their oaths present in and to said court that Burglary of a Building hereinafter styled Defendant, on or about the 3rd day of January AD., 1988, ..., did then and there intentionally and knowingly enter a building not then open to the public without the effective consent of [complainant], the owner, and therein attempted to commit and committed theft.

The trial court finds that Applicant did not object to the indictment or file a motion to quash the indictment before he was convicted of the offense. This Court filed and set this application to determine whether the failure of the indictment to name the person accused is a fundamental defect.

Whether a particular charging instrument constitutes an indictment within the meaning of the law must be determined with reference to Article V, Sec. 12(b) of the Texas Constitution. Studer v. State, 799 S.W.2d 268 (Tex.Cr.App.1990). Art. V, Sec. 12(b) of the Texas Constitution provides as follows:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments, and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information invests the court with jurisdiction of the cause.

The trial court found that while the purported indictment in this case charges an offense, it does not charge a person with the commission of the offense, and therefore is not an indictment within the meaning of that term under Art. V, Sec. 12(b) of the Texas Constitution.

In light of our opinion in Cook v. State, (No. 375-94) delivered this day, the failure of the charging instrument in the present ease to charge a person with the commission of the offense renders it constitutionally invalid. Accordingly, the judgment of the trial court is vacated and the cause is remanded to that court with instructions to dismiss the prosecution in this cause.

WHITE and KELLER, JJ., dissent.

1 . Applicant also alleges that he was denied his right under Article 42.18, § 14(a), V.A.C.C.P. to a parole revocation hearing. We find this allegation has no merit and deny relief on this claim.