Watts v. State

¶1OPINION

¶2Appellant 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.

¶3The trial court found him to be guilty on count one and assessed his punishment at confinement for fifteen years. Count two was dismissed.

¶4Although 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).

¶5We reproduce, in parallel columns, the pertinent parts of the indictment in Holcomb, supra, and this case:

¶6State’s counsel argues that our decision in Holcombthat 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 Holcombare readily distinguishable.1

¶7Counsel also argues that the presence of the word “unlawfully” preceding the word “enter” distinguishes Gonzales and Winton from Holcomb.2We disagree and decline the invitation to overrule Holcomb.

¶8One 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. *161395, 400 (1882). See also Dovalina v. State, 564 S.W.2d 378, 385 (Tex.Cr.App.1978) (concurring opinion).

¶9We 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).

¶10Since the indictment if fundamentally defective, the judgment is reversed and the prosecution under this indictment ordered dismissed.

¶11Opinion approved by the panel.