From Casetext: Smarter Legal Research

Ex Parte Herrera

Court of Criminal Appeals of Texas, En Banc
Dec 10, 1980
608 S.W.2d 683 (Tex. Crim. App. 1980)

Opinion

No. 66218.

December 10, 1980.

Appeal from the 49th Judicial District Court, Webb County, Ruben Garcia, J.

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

Before the court en banc.


OPINION


This is a post conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P. The applicant was convicted in 1979 in cause number 17,354 in the 49th District Court of Webb County for the offense of murder.

The applicant contends that the trial court did not have jurisdiction to try the cause because of fundamental error in the indictment in which an impossible date for the commission of the offense was alleged.

The date of the offense was alleged to have been committed "on or about the 10th day of November A. D. 19 8 and anterior to the presentment of the indictment. . . ."

Many cases have held that an indictment is fundamentally defective if it alleges that the offense was committed on an impossible date. See Ex parte Millard, 587 S.W.2d 703 (Tex.Cr.App. 1979), and Barnes v. State, 42 Tex.Crim. R., 59 S.W. 882 (1900). It is impossible that appellant could have committed the offense in "19 8 ".

The relief sought is granted. The applicant is ordered discharged from custody in this cause.


Summaries of

Ex Parte Herrera

Court of Criminal Appeals of Texas, En Banc
Dec 10, 1980
608 S.W.2d 683 (Tex. Crim. App. 1980)
Case details for

Ex Parte Herrera

Case Details

Full title:Ex parte Luis HERRERA, Appellant

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Dec 10, 1980

Citations

608 S.W.2d 683 (Tex. Crim. App. 1980)

Citing Cases

Rodriguez v. State

Appellant has adequately demonstrated that he cannot make the bail set in the two cases, although the ability…

Gibson v. State

We take judicial notice of the indictment pursuant to Rule 201. Because it fails to state a year in which the…