542 SW2D 179 - Ex Parte Jones

¶1OPINION

ONION, Presiding Judge.

¶2This is an application for writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P.

¶3Petitioner was indicted by the Harris County Grand Jury for four separate offenses of robbery by assault under the old Penal Code in trial court cause nos. 195,-054^195,057.1 On August 27,1973, petitioner entered a plea of not guilty in cause no. 195,057 and was convicted by a jury, being sentenced to a twenty-five (25) year term of imprisonment. Thereafter, petitioner en*180tered pleas of guilty to the other three pending indictments and was assessed three 25 year sentences for those offenses.

¶4Petitioner filed notice of appeal in all four cases, and the records were transmitted to this court.2 On appellate review of these convictions this court affirmed three of the convictions by per curiam, unpublished opinions on February 4, 1976. However, we reversed the conviction in trial court cause no. 195,057 due to a fatally defective indictment. See Jones v. State, 535 S.W.2d 184 (Tex.Cr.App.1976).3

¶5Subsequently, petitioner filed his application for writ of habeas corpus with the trial court pursuant to the provisions of Article 11.07, supra, challenging the validity of the convictions in cause nos. 195,054-195,056, claiming that the indictments in those cases were also fatally defective for the same reasons set out in our opinion in Jones v. State, supra. The trial court entered findings of fact and conclusions of law recommending that this application for writ of habeas corpus be granted and that the convictions be set aside and the indictments dismissed.

¶6We are in complete agreement of the trial court’s findings. The indictments for robbery by assault in the three challenged convictions are fatally defective under this court’s prior opinions in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Sellers v. State, 536 S.W.2d 564 (Tex.Cr.App.1976); Jones v. State, supra.

¶7Furthermore, it is well settled that fundamentally defective indictments may be challenged by way of post-conviction writs of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

¶8For the reasons above stated, the writ of habeas corpus is granted, and the convictions in cause nos. 195,054,195,055 and 195,-056 are set aside and said indictments are ordered dismissed.

¶9. In two of the causes petitioner was indicted as Royal Cleaver Jones.

¶10. The records in cause nos. 195,054-195,056 were received in this court on October 29, 1975. However, the record in cause no. 195,057, the case in which the petitioner entered his plea of not guilty to the jury, was not filed in this court until January 19, 1976. The delay was apparently due to the court reporter’s delay in completing the statement of facts of the jury trial.

¶11. Appellant’s court-appointed counsel on appeal filed frivolous appeal briefs in all four of these cases, and thus the question of the defective indictments was not raised in any of these cases before this court. This court discovered the defective indictment pursuant to our authority to review the records for error in the “interest of justice.” See Article 40.09, § 13, Vernon’s Ann.C.C.P.