Ex parte Pullin

608 S.W.2d 935, 1980 Tex. Crim. App. LEXIS 1516

• Court: Court of Criminal Appeals of Texas
• Decided: December 23, 1980
• Docket: No. 64614
• Status: Published

Opinions

OPINION

W. C. DAVIS, Judge.

This is a post-conviction writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P. Petitioner contends that the information¹ under which she was convicted is fundamentally defective, in that it fails to allege all of the elements of the offense.

Petitioner was convicted of tampering with a witness. V.T.C.A. Penal Code, Section 36.06 provides:

“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:

******

(2) to withhold any testimony, information, document, or thing ...” (Emphasis added)

The information in the instant case alleged that petitioner,

“did then and there knowingly and intentionally coerce a witness or prospective witness in an official proceeding to withhold testimony and information by threat of violence ...”

We must agree with petitioner that the information lacks one element of the offense as set out ir Sec. 36.06, supra. The information fails to allege the specific culpable mental state, i. e., that the act was done “with intent to influence the witness.” We deem this specific culpable mental state to be an essential element of the offense.

We have previously held that where a necessary culpable mental state is not alleged in an indictment or information, such pleading is rendered void. See and compare Ex parte Nixon, 571 S.W.2d 32 (Tex.Cr.App.1978); Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976). If an indictment or information is fundamentally defective so as to not charge an offense, such pleading may be challenged in a post-conviction writ of habeas corpus. Ex parte Cannon, supra; Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.

1 . The record reflects that petitioner waived indictment and was convicted upon an information.