Ex Parte Tipton

617 S.W.2d 262, 1981 Tex. Crim. App. LEXIS 1074

Opinions

OPINION

ODOM, Judge.

This is an original application for a writ of habeas corpus. Art. 11.07, V.A.C.C.P. The petitioner is currently incarcerated in the Texas Department of Corrections.

The petitioner alleges that he is illegally restrained since the indictment under which he stands convicted and incarcerated is void. This indictment in Cause No. 12257 in the Twelfth Judicial District Court of Walker County alleges in pertinent part, that the petitioner did “knowingly and intentionally possess a controlled substance listed in Penalty Group No. 2, to wti [sic]: Hashish ...” (emphasis added.) An examination of “Penalty Group No. 2” of the Controlled Substances Act reveals no such drug as “hashish” listed. The indictment itself does not explain why “hashish” is a controlled substance.

The applicable law follows:

“To state the rule generally, we hold that in a prosecution under the Controlled Substances Act for the manufacture, delivery, or possession of a substance not specifically named in a penalty group but which is otherwise described in a penalty group, ... such description is an essential element of the offense which must be alleged in the indictment in order to state an offense.”

Ex parte Wilson, 588 S.W.2d 905, 908-09. The instant indictment, therefore, does not allege an offense against the State, is void and subject to collateral attack. See Taylor v. State, 610 S.W.2d 471; Ex parte Wilson, supra at 908-09; see also Crowl v. State, 611 S.W.2d 59, 60.

The indictment in Cause No. 12257 in the Twelfth Judicial District Court of Walker County is ordered dismissed and petitioner is ordered released from any restraint incurred by virtue of conviction under said void indictment. A copy of this opinion will be sent to the Texas Department of Corrections.

Relief ordered accordingly.