Sheeley v. State

530 S.W.2d 108, 1975 Tex. Crim. App. LEXIS 1177

Opinions

OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. The punishment, which was enhanced pursuant to Sec. 12.42(c), Y.T.C.A. Penal Code, was assessed by the jury at ninety-nine (99) years. This appeal followed.

Appellant contends that the indictment is fatally defective because it does not conclude with the phrase “Against the peace and dignity of the State.” An examination of the indictment reveals that appellant is correct, the concluding phrase being absent.

Art. 5, See. 12, Vernon’s Ann.Texas Constitution, provides in part:

“All prosecutions shall be carried on in the name and by authority of the State of Texas, and shall conclude: ‘Against the peace and dignity of the State.’ ”

Art. 21.02, Vernon’s Ann.C.C.P., provides that an indictment must conclude with the phrase “Against the peace and dignity of the State.” Under an unbroken line of authorities it has long been held that the omission of this concluding phrase in an indictment renders the same fatally defective. See Reese v. State, 139 Tex.Cr.R. 593, 141 S.W.2d 949 (1940); Herring v. State, 160 Tex.Cr.R. 597, 273 S.W.2d 421 (1954); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). See also the other authorities listed under Art. 5, Sec. 12, Note 4, Vernon’s Ann. Texas Constitution, and Art. 21.02, Note 59, Vernon’s Ann.C.C.P.

The indictment being fundamentally defective, the judgment is reversed and the prosecution ordered dismissed.