Watts v. State

587 S.W.2d 159, 1979 Tex. Crim. App. LEXIS 1632

Opinion

OPINION

KEITH, Commissioner.

Appellant was indicted on a two-count indictment, the first charging burglary of a habitation and an attempt to commit rape under V.T.C.A., Penal Code, Sec. 30.02(a)(3). The second count charged attempted rape. Appellant entered a plea of nolo contendere and there was no recommendation from State’s counsel as to his punishment. He executed a waiver of jury trial and a stipulation as to the evidence.

The trial court found him to be guilty on count one and assessed his punishment at confinement for fifteen years. Count two was dismissed.

Although he did not file a motion to quash the indictment, appellant’s sole ground of error is a contention that the indictment was fundamentally defective in count one because such count “fails to allege a culpable mental state.” His sole authority is Holcomb v. State, 573 S.W.2d 814 (Tex.Cr.App.1978).

We reproduce, in parallel columns, the pertinent parts of the indictment in Holcomb, supra, and this case:

State’s counsel argues that our decision in Holcomb that the indictment was fundamentally defective because it omitted the necessary culpable mental state allegations was incorrect and should be overruled. Counsel argues that the two cases relied upon in Holcomb are readily distinguishable.¹

Counsel also argues that the presence of the word “unlawfully” preceding the word “enter” distinguishes Gonzales and Winton from Holcomb.2 We disagree and decline the invitation to overrule Holcomb.

One of the elements necessary to establish an offense under V.T.C.A., Penal Code, Sec. 15.01(a),³ is that the accused, “with specific intent to commit an offense,” does an act, etc. The bald conclusory allegation that he entered the habitation and did “attempt to commit the felony of RAPE” is insufficient, as a matter of law, to charge a crime. Drye v. State, 14 Tex.App. 185, 191 (1883); Brinster v. State, 12 Tex.App. 612, 613 (1882); Williams v. State, 12 Tex.App. , 400 (1882). See also Dovalina v. State, 564 S.W.2d 378, 385 (Tex.Cr.App.1978) (concurring opinion).

We reaffirm our holding in Holcomb, supra, that an indictment under V.T.C.A., Penal Code, Sec. 30.02(a)(3) must include an allegation of a culpable mental state; and, since none was included in the indictment in this cause, the indictment was fundamentally defective. V.T.C.A., Penal Code, Sec. 6.02(a) and (b).

Since the indictment if fundamentally defective, the judgment is reversed and the prosecution under this indictment ordered dismissed.

Opinion approved by the panel.

1 . We cited and footnoted the allegations in the indictments in Ex parte Gonzales, 557 S.W.2d 790 (Tex.Cr.App. 1977), and Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). See 573 S.W.2d at 815 nn. 3 and 4, respectively.

2 . “What was overlooked in the Holcomb opinion was the decisive difference in allegation of ‘unlawfully enter’ and mere allegation of ‘enter.’ ”

3 . “(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”