Henderson v. State

600 S.W.2d 788, 1979 Tex. Crim. App. LEXIS 1484

• Court: Court of Criminal Appeals of Texas
• Decided: June 13, 1979
• Docket: 57855
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for escape. V.T.C.A., Penal Code Sec. 38.07. Punishment was assessed at one year in jail.

We are confronted at the outset with a fundamentally defective complaint and information. These allege in relevant part that appellant did:

“. . . intentionally and knowingly escape from the custody of Gary Godsey, when he, the said defendant, had been arrested under circumstances which reasonable [sic] showed that he had been guilty of a breach of the peace.”

Sec. 38.07(a), supra, provides:

“A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.” (Emphasis added.)

The elements of escape are that a person (1) escape (2) from custody (3) after having been arrested for, charged with or convicted of an offense. Garcia v. State, Tex.Cr.App., 537 S.W.2d 930.

V.T.C.A., Penal Code Sec. 1.03(a) provides:

“Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.”

There is no statute creating an offense of “breach of the peace”¹ in this jurisdiction, nor is it alleged that such an offense has been created by ordinance. The complaint and information therefore fail to allege that appellant had been arrested for an offense. Because they fail to allege this element of the offense of escape, they are fundamentally defective and cannot support a prosecution. Ex parte McCurdy, Tex.Cr.App., 571 S.W.2d 31.

The judgment is reversed and the prosecution ordered dismissed.

Before the court en banc.

1 . Although Art. 14.01, V.A.C.C.P., authorizes an arrest for breach of the peace, it also authorizes an arrest for being in a suspicious place. Neither of these constitute an offense under the laws of this State such as to fulfill the essential element of escape under Sec. 38.07, supra.