OPINION ON COURT’S OWN MOTION FOR REHEARING
HOLLAND, Judge,
delivered the opinion of the Court, in which McCORMICK Presiding Judge, and KELLER, PRICE and WOMACK Judges, joined.
This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Tex.Crim. PROC.Code ANN. § 11.07 (Vernon 1994). Applicant files this writ attacking his conviction for attempted capital murder in which the jury assessed punishment, enhanced by two prior felony convictions, at life imprisonment. Tex. Penal Code Ann. § 12.42(d) (Vernon 1994). Applicant claims he is entitled to a new trial because one of the two prior felony convictions used to enhance his punishment was subsequently held to be void. Relying on our decision in Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981), we initially granted applicant relief. Ex parte Patterson, No. 72,866 (Tex.Crim.App. Sept.17,1997) (unpublished) (per curiam). The judgment was vacated and the cause remanded to the trial court for a new sentencing hearing. We withdrew this opinion on our own motion and granted rehearing to reexamine our holding in Ex parte Nivens in light of the 1985 amendments to Article V, Section 12(b) the Texas Constitution and Article 1.14(b) of the Code of Criminal Procedure.
I. Facts
On March 4, 1993, applicant was convicted of attempted capital murder in Cause No. F-91-1447-B in the 158th Judicial District Court of Denton County [hereinafter “primary offense”]. No appeal was taken from this conviction. The conviction was affirmed. Patterson v. State, No. 2-93-214-CR (Tex.App.—Fort Worth, delivered Oct. 26, 1994, pet. ref d). Nine months later, on December 7, 1993, applicant filed a post-conviction application for writ of habeas corpus attacking his conviction in Cause No. C74-4581-J which was used to enhance his punishment in the present case.1 Applicant claimed the information in the prior burglary conviction was fundamentally defective because it failed to allege the required elements of burglary. Specifically, the information did not allege that entry onto the premises was accomplished “with the intent to commit a felony or theft.”2 See Tex. Pen.Code Ann. § 30.03(a)(1) (Vernon 1994). The 3rd District Court recommended denial of habeas relief and entered findings of fact and conclusions of law accordingly.
On April 20, 1994, this Court held the burglary conviction was void due to the fun[18]*18damental defect in the information. Ex parte Patterson, No. 71,833 (Tex.Crim.App. April 20, 1994) (unpublished) (per curiam). Relying on Ex parte Cannon, 546 S.W.2d 266 (Tex.Crim.App.1976) we observed that the information’s allegation that applicant intended to “exercise control over the property,” was insufficient to allege the crime of theft and could not support his conviction. Applicant’s conviction was set aside and the information dismissed.
On May 23, 1997, applicant filed this post-conviction application for writ of habeas corpus claiming entitlement-to a new trial in the present cause because the conviction in Cause No. C74-4581-J was used to enhance his punishment. We initially granted applicant habeas relief under our decision in Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981). Relying on Nivens, we held that applicant’s failure to object to the use of the prior conviction to enhance his punishment did not prevent him from attacking the subsequent conviction in a post-conviction habe-as application. On September 17, 1997, we withdrew this opinion and granted rehearing so that we could reexamine our decision in Nivens in light of the 1985 amendments requiring an accused to object to defects of substance or form contained in the charging instrument prior to the date of trial.
II. Charging Instrument Defects Prior to 1985
Since our decision in Nivens, the legislature amended Article V, Section 12 of the Texas Constitution and Article 1.14(b) of the Code of Criminal Procedure to change the effect of a defect of substance. Prior to the 1985 amendments, the Texas Constitution treated a charging instrument’s failure to allege all elements of the offense as a fundamental defect that deprived the trial court of jurisdiction. Studer v. State, 799 S.W.2d 263, 266-67 n. 4 (Tex.Crim.App.1990); see also Fisher v. State, 887 S.W.2d 49, 54 (Tex.Crim.App.1994). Without jurisdiction, any judgment the trial court entered was rendered void and could be attacked at any time. The error could be raised for the first time on appeal, or in a post-conviction application for writ of habeas corpus. See Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985); Ex parte Banks, 542 S.W.2d 183, 184 (Tex.Crim.App.1976). The penal code’s recidivist statute extended the ability to collaterally attack the validity of a conviction to prior convictions used to enhance punishment. Tex. Penal Code Ann. § 12.42 (Vernon 1994); see Ex parte Howeth, 609 S.W.2d 540, 541 (Tex.Crim.App.1980). Based upon this right, we recognized in Nivens that defense counsel’s failure to object at trial to the use of the prior conviction later held to be void due to a fundamental defect did not prevent the defendant from attacking the subsequent conviction by way of habeas application. Id. at 184.
In Hill v. State, 633 S.W.2d 520 (Tex.Crim.App.1982) (opinion on motion for reh’g), however, we held that the failure to object to the use of an “infirm” prior conviction to enhance punishment prevented the defendant from subsequently attacking the conviction on that basis.3 We later distinguished the holding in Hill from that of Nivens, Howeth,4 and Garcia5. In Ex parte White, 659 S.W.2d 434 (Tex.Crim.App.1983) this Court recognized that an objection was necessary in Hill because, unlike convictions rendered void due [19]*19to a fundamental defect in the charging instrument, convictions based on an “infirm” prior conviction properly charge an offense and invoke the trial court’s jurisdiction once presented. Id. at 435. An examination of Article V, section 12 of the Texas Constitution indicates that this jurisdictional distinction recognized in White did not survive the 1985 amendments.
III. Charging Instrument Defects After the 1985 Amendments
In Studer v.
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OPINION ON COURT’S OWN MOTION FOR REHEARING
HOLLAND, Judge,
delivered the opinion of the Court, in which McCORMICK Presiding Judge, and KELLER, PRICE and WOMACK Judges, joined.
This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Tex.Crim. PROC.Code ANN. § 11.07 (Vernon 1994). Applicant files this writ attacking his conviction for attempted capital murder in which the jury assessed punishment, enhanced by two prior felony convictions, at life imprisonment. Tex. Penal Code Ann. § 12.42(d) (Vernon 1994). Applicant claims he is entitled to a new trial because one of the two prior felony convictions used to enhance his punishment was subsequently held to be void. Relying on our decision in Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981), we initially granted applicant relief. Ex parte Patterson, No. 72,866 (Tex.Crim.App. Sept.17,1997) (unpublished) (per curiam). The judgment was vacated and the cause remanded to the trial court for a new sentencing hearing. We withdrew this opinion on our own motion and granted rehearing to reexamine our holding in Ex parte Nivens in light of the 1985 amendments to Article V, Section 12(b) the Texas Constitution and Article 1.14(b) of the Code of Criminal Procedure.
I. Facts
On March 4, 1993, applicant was convicted of attempted capital murder in Cause No. F-91-1447-B in the 158th Judicial District Court of Denton County [hereinafter “primary offense”]. No appeal was taken from this conviction. The conviction was affirmed. Patterson v. State, No. 2-93-214-CR (Tex.App.—Fort Worth, delivered Oct. 26, 1994, pet. ref d). Nine months later, on December 7, 1993, applicant filed a post-conviction application for writ of habeas corpus attacking his conviction in Cause No. C74-4581-J which was used to enhance his punishment in the present case.1 Applicant claimed the information in the prior burglary conviction was fundamentally defective because it failed to allege the required elements of burglary. Specifically, the information did not allege that entry onto the premises was accomplished “with the intent to commit a felony or theft.”2 See Tex. Pen.Code Ann. § 30.03(a)(1) (Vernon 1994). The 3rd District Court recommended denial of habeas relief and entered findings of fact and conclusions of law accordingly.
On April 20, 1994, this Court held the burglary conviction was void due to the fun[18]*18damental defect in the information. Ex parte Patterson, No. 71,833 (Tex.Crim.App. April 20, 1994) (unpublished) (per curiam). Relying on Ex parte Cannon, 546 S.W.2d 266 (Tex.Crim.App.1976) we observed that the information’s allegation that applicant intended to “exercise control over the property,” was insufficient to allege the crime of theft and could not support his conviction. Applicant’s conviction was set aside and the information dismissed.
On May 23, 1997, applicant filed this post-conviction application for writ of habeas corpus claiming entitlement-to a new trial in the present cause because the conviction in Cause No. C74-4581-J was used to enhance his punishment. We initially granted applicant habeas relief under our decision in Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981). Relying on Nivens, we held that applicant’s failure to object to the use of the prior conviction to enhance his punishment did not prevent him from attacking the subsequent conviction in a post-conviction habe-as application. On September 17, 1997, we withdrew this opinion and granted rehearing so that we could reexamine our decision in Nivens in light of the 1985 amendments requiring an accused to object to defects of substance or form contained in the charging instrument prior to the date of trial.
II. Charging Instrument Defects Prior to 1985
Since our decision in Nivens, the legislature amended Article V, Section 12 of the Texas Constitution and Article 1.14(b) of the Code of Criminal Procedure to change the effect of a defect of substance. Prior to the 1985 amendments, the Texas Constitution treated a charging instrument’s failure to allege all elements of the offense as a fundamental defect that deprived the trial court of jurisdiction. Studer v. State, 799 S.W.2d 263, 266-67 n. 4 (Tex.Crim.App.1990); see also Fisher v. State, 887 S.W.2d 49, 54 (Tex.Crim.App.1994). Without jurisdiction, any judgment the trial court entered was rendered void and could be attacked at any time. The error could be raised for the first time on appeal, or in a post-conviction application for writ of habeas corpus. See Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985); Ex parte Banks, 542 S.W.2d 183, 184 (Tex.Crim.App.1976). The penal code’s recidivist statute extended the ability to collaterally attack the validity of a conviction to prior convictions used to enhance punishment. Tex. Penal Code Ann. § 12.42 (Vernon 1994); see Ex parte Howeth, 609 S.W.2d 540, 541 (Tex.Crim.App.1980). Based upon this right, we recognized in Nivens that defense counsel’s failure to object at trial to the use of the prior conviction later held to be void due to a fundamental defect did not prevent the defendant from attacking the subsequent conviction by way of habeas application. Id. at 184.
In Hill v. State, 633 S.W.2d 520 (Tex.Crim.App.1982) (opinion on motion for reh’g), however, we held that the failure to object to the use of an “infirm” prior conviction to enhance punishment prevented the defendant from subsequently attacking the conviction on that basis.3 We later distinguished the holding in Hill from that of Nivens, Howeth,4 and Garcia5. In Ex parte White, 659 S.W.2d 434 (Tex.Crim.App.1983) this Court recognized that an objection was necessary in Hill because, unlike convictions rendered void due [19]*19to a fundamental defect in the charging instrument, convictions based on an “infirm” prior conviction properly charge an offense and invoke the trial court’s jurisdiction once presented. Id. at 435. An examination of Article V, section 12 of the Texas Constitution indicates that this jurisdictional distinction recognized in White did not survive the 1985 amendments.
III. Charging Instrument Defects After the 1985 Amendments
In Studer v. State, 799 S.W.2d 263 (Tex.Crim.App.1990), after analyzing the amendments’ language and legislative histories, we recognized that the amendments changed the effect of a defect of substance. Now a defect of substance in a charging instrument does not automatically render a judgment void. Under the amended definition of the Texas Constitution, to constitute an indictment or information, an instrument must “chargfe] a person with the commission of an offense.” Tex. Const. Art. V, § 12(b)6 . Consequently, an indictment or information flawed by a defect of substance but which purports to charge an offense is not fundamentally defective and, in the absence of a pretrial objection, will support a conviction.7 Id. at 271-273; Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Crim.App.1990). It is only where an instrument fails to satisfy that requirement that it is void and incapable of invoking the court’s jurisdiction. The absence of jurisdiction renders the judgment a complete nullity and exempts the defendant from the rules of procedural default. Thus, a defendant’s failure to object as required by article 1.14(b) does not waive the defect because the judgment’s voidness is cognizable at anytime.
IV. Defect Resulting from Use of Void Judgment To Enhance Punishment
The question arises, however, when a void judgment is used to enhance a subsequent offense whether the new indictment contains a cognizable defect requiring an objection. See Tex.Crim. Proo.Code. Ann. § 1.14(b). We hold that the new indictment contains a cognizable defect when, as in this case, it relies on a void judgement (of conviction) to enhance.8 A cognizable defect is present under these circumstance not because the indictment for the new offense is automatically imputed as being void due to the presence of the void conviction used to enhance. Rather, a cognizable defect is present because the indictment’s reliance on the void conviction renders it voidable and subjects the enhancement portion of the indictment to being voided by the trial court.
In the present ease, the prior judgment (of conviction) used to enhance was void. Because the indictment for the new offense relied on this conviction to enhance, the indictment contained a cognizable defect and was voidable. The enhancement portion of the indictment was subject to being voided by compliance with the applicable rules of procedural default. As discussed above, the applicable rules for procedural default for indictments set out in Article 1.14(b) of the Code of Criminal Procedure require a defendant to object to any defects of substance or [20]*20form in the charging instrument prior to the day of trial. Applicant’s failure to object to the error in the enhancement portion of the indictment waived the error by procedural default. To the extent that this holding conflicts with Ex parte Nivens and its progeny, they are overruled.
V. Ineffective Assistance of Counsel Claim
Applicant contends that his trial counsel denied him the right to effective assistance of counsel. Specifically, he claims that his trial counsel was ineffective because he neither investigated the validity of the prior convictions nor objected to their use for enhancement.
The trial court has not entered findings of fact or conclusions of law. In light of our holding, we believe that applicant has alleged facts that, if true, might entitle him to relief. Therefore, we remand this matter to the trial court for resolution of the factual issues presented in accordance with Article 11.07, § 3(d) of the Code of Criminal Procedure. The trial court may order affidavits from trial counsel addressing whether counsel investigated the validity of the prior convictions alleged in the enhancement paragraph and his reasons for not objecting to the enhancement paragraph. If trial counsel’s actions were based on trial strategy, counsel should explain this strategy.
The trial court may also order a hearing. If the trial court elects to hold a hearing that court should first decide whether applicant is indigent: If the trial court finds that applicant is indigent, and applicant desires representation by counsel, the trial court will then, pursuant to the provisions of Article 26.04, V.A.C.C.P., appoint an attorney to represent him at the hearing. Following receipt of this information the trial court should make findings of fact as to trial counsel's effectiveness. The trial court should also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of applicant’s application for habeas corpus relief.
Since this Court does not hear evidence, Ex parte Rodriguez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex.Crim.App.1960), we will hold this application for a post-conviction writ of habeas corpus in abeyance pending the trial court’s compliance with this order. Resolution of the issues shall be completed by the trial court within 90 days of the date of this order.9 A supplemental transcript and the trial court’s supplemental findings of fact and conclusions of law shall be returned to this Court within 120 days of the date of this order.10
It is so ordered this the 10th Day of June, 1998.
MANSFIELD, J., joined with a concurring opinion.
BAIRD, J., delivered a concurring and dissenting note.
OVERSTREET, J., dissented.
MEYERS, J., delivered a dissenting opinion.