Schmidt, Ex Parte Christopher John

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 2005
• Docket: AP-75,210
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,210 EX PARTE CHRISTOPHER JOSEPH SCHMIDT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 0263819-A IN THE 297^th JUDICIAL DISTRICT COURT

TARRANT COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to tex. code crim. proc. art. 11.07. Applicant was convicted of possession of tetrahydrocannabinol. Punishment was assessed at confinement for seven years. No appeal was taken from this conviction.

Applicant contends that the felony information in this cause was fundamentally defective thus rendering the subsequent conviction null and void.

The trial court has entered findings, supported by the record, recommending that relief be granted. Specifically, the trial court finds that Applicant was charged prior to December 1, 1985, with possession of "tetrahydrocannabinols". The trial court also finds that, at the time he was charged, a charging instrument that alleged possession of "tetrahydrocannabinols", without more, failed to allege a felony offense because the law prohibited possession of "tetryhydrocannabinols other than marihuana". See Few v. State, 588 S.W.2d 578 (Tex. Crim. App. 1979). Applicant is entitled to relief.

Relief is granted. The judgment in cause number 0263819 in the 297th Judicial District Court of Tarrant County is vacated, and the Applicant is remanded to the custody of the sheriff of Tarrant County to answer the charges.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, correctional institutions and parole divisions.

DELIVERED: June 29, 2005

DO NOT PUBLISH