Opinion
No. 56907.
September 20, 1978.
Appeal from the 196th Judicial District Court, Hunt County, Hollis D. Garmon, J.
No appearance for appellant.
No appearance for appellee.
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
OPINION
This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.
Petitioner was convicted of the offense of robbery by assault, on his plea of guilty to the court in Cause number 10,199, and was sentenced to a twenty (20) year term of imprisonment on October 7, 1970. No appeal was perfected.
Petitioner filed his application for writ of habeas corpus in the trial court, contending that the indictment upon which he was tried was fatally defective since it failed to allege or describe the property taken. The trial court entered its findings of fact and conclusions of law recommending the application be denied.
Initially, we note that the indictment in the case at bar alleges that on or about February 19, 1970, the petitioner, Ben Elick Cannady:
"(D)id then and there unlawfully and wilfully make an assault upon the person of Pauline Taylor hereinafter styled injured party, and did then and there by the said assault and by violence to the said injured party, and by then and there putting the said injured party in fear of life and bodily injury and by then and there using and exhibiting a firearm, to-wit: .32 caliber revolver did then and there fraudulently take from the person and possession of the said injured party, Corporeal personal property then and there belonging to the said injured party; without the consent and against the will of said injured party, and with the fraudulent intent then and there on the part of the said defendant to deprive the said injured party of the value of same, and with the intent to appropriate the same to the use and benefit of the said defendant; Ben Elick Cannady;" (emphasis supplied)
Petitioner contends that the failure of this indictment to properly describe the property taken renders the indictment fatally defective, and he relies on Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App. 1970) and Wilson v. State, 171 Tex.Crim. 391, 356 S.W.2d 928. In Mankin this Court held that robbery is only an aggravated form of theft, and that a description of the property taken was essential to the validity of the indictment, relying on Holland v. State, 110 Tex.Crim. 384, 10 S.W.2d 561, and Wilson v. State, supra. It was further held that the failure to give Any description of the corporeal personal property was a fatal defect, which could be raised for the first time on appeal.
Since Mankin was decided, this Court has rendered numerous other opinions holding that all the essential elements of a robbery indictment under Art. 1408, V.A.P.C. (1925) must be included in the indictment, otherwise that indictment is rendered fatally defective. See Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App. 1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App. 1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App. 1976). See also Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App. 1977), and Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App. 1976).
Additionally, this Court has held that fatally defective indictments may be challenged by way of post-conviction habeas corpus. See Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App. 1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App. 1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App. 1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App. 1975); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App. 1977); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App. 1977).
For the reasons stated, we are of the opinion that the indictment in the case at bar is fatally defective. See Mankin v. State, supra. Thus, the relief prayed for is granted, and the conviction in Cause number 10,199 is reversed, and the prosecution in this case is dismissed.
It is so ordered.
VOLLERS, J., dissents for the same reasons as in Ex parte Canady, 563 S.W.2d 266 (Tex.Cr.App. 1978).