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Ex Parte Davis

Court of Criminal Appeals of Texas, En Banc
Jul 18, 1979
583 S.W.2d 794 (Tex. Crim. App. 1979)

Summary

In Ex Parte Davis, 583 S.W.2d 794, 795, n. 2 (Tex.Cr.App. 1979), Judge Clinton, writing for the Court, noted "That the writer no longer agrees with the original Minix opinion, as explicated in my dissenting opinions in Minix on State's motion for rehearing and today in Landry on appellant's motion for rehearing, is of no moment.

Summary of this case from Ex Parte Porter

Opinion

No. 62090.

July 18, 1979.

Appeal from the 183rd Judicial District Court, Harris County, Joseph M. Guarino, J

Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.


OPINION


This is a post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P. Petitioner was convicted of forgery by passing as proscribed by V.T.C.A. Penal Code, § 32.21(a)(1)(B) and (b). He now contends that the indictment charging the offense was fundamentally defective in that it did not allege that the writing purported to be the act of another "who did not authorize that act." We have examined the indictment. While it sets out the writing in its entirety and otherwise states every other element of the offense, the indictment does, indeed, fail to include the statutory phrase "who did not authorize that act" or to use other words conveying the same meaning or the sense of the statutory words. He relies in part on the original panel opinion in Minix v. State, 579 S.W.2d 466 (Tex.Cr.App. 1979).

See Article 21.17, V.A.C.C.P.

Today, in Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., opinion on appellant's motion for rehearing), the Court reaffirms the holding in Minix, just as it did on State's motion for rehearing in Minix, itself, April 25, 1979; it also overrules a second motion for rehearing in Minix. That an indictment for forgery which fails to allege that the writing purporting to be the act of another "who did not authorize that act" is fundamentally defective is thus settled. Petitioner is entitled to relief.

That the writer no longer agrees with the original Minix opinion, as explicated in my dissenting opinions in Minix on State's motion for rehearing and today in Landry on appellant's motion for rehearing, is of no moment. The Court en banc has clearly declared the law and I must and do defer to its judgment.

Accordingly, the writ is granted, the conviction in Cause No. 258,506 is vacated and set aside and the indictment in that cause is dismissed. Therefore, petitioner is released from custody and every manner of restraint in his personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

Articles 11.07 and 11.64, V.A.C.C.P.; Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App. 1977).

It is so ordered.

DOUGLAS, J., dissents.


Summaries of

Ex Parte Davis

Court of Criminal Appeals of Texas, En Banc
Jul 18, 1979
583 S.W.2d 794 (Tex. Crim. App. 1979)

In Ex Parte Davis, 583 S.W.2d 794, 795, n. 2 (Tex.Cr.App. 1979), Judge Clinton, writing for the Court, noted "That the writer no longer agrees with the original Minix opinion, as explicated in my dissenting opinions in Minix on State's motion for rehearing and today in Landry on appellant's motion for rehearing, is of no moment.

Summary of this case from Ex Parte Porter
Case details for

Ex Parte Davis

Case Details

Full title:Ex parte Willie DAVIS

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Jul 18, 1979

Citations

583 S.W.2d 794 (Tex. Crim. App. 1979)

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The Court of Criminal Appeals has held that a forgery indictment which fails to allege that the writing…

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After Landry, Judge Clinton found himself constrained to follow Minix. In Ex Parte Davis, 583 S.W.2d 794,…