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600 S.W.2d 331

Ex Parte Bailey

Court of Criminal Appeals of Texas

Decided June 11, 1980

Court of Criminal Appeals of Texas · decided 1980-06-11

Cited by 10 later decisions — most recently January 1994

8 state decisions

Key passage — most relied on by later courts

““Initial attention is given to the fourth ground of error claiming that Section 19.-02(a)(3) is unconstitutional for vagueness and indefiniteness. The infirmity is contended for on the theory that the Section fails to show what culpable state of mind is required in the commission of the ‘act clearly dangerous to human life that causes the death of an individual.’ The novel contention has not heretofore been decided and, to resolve it, the enactment must be considered with other sections of the penal code, to which the rule of strict construction does not apply. Section 1.05 “From the consideration of these Sections together, it logically follows that because Section 19.02(a)(3) is silent as to, and does not plainly dispense with, the culpable mental state required for the underlying felony committed or attempted, Section 6.02(b) mandates that the culpable mental state shall, as specified in Section 6.02(c) be one of intent, knowledge or recklessness. Upon the establishment of the underlying committed or attempted felony embracing the requisite mental state, Section 19.02(a)(3) then declares that an act which is committed in the course and furtherance of, or in immediate flight from, the underlying committed or attempted felony and which is clearly dangerous to human life and causes death, shall constitute murder. Thus, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the ac”

quoted by 1 later decision, including Lugo-Lugo v. State

“The indictment sets forth all the elements of the statute. We have held, since Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), that only those indictments which fail to set forth an offense will be considered fundamentally defective and susceptible to challenge the first time in a post-conviction writ of habeas corpus. [Citations omitted.]”

quoted by 1 later decision, including Berghahn v. State

Relies on Standley v. State · Lucero v. State · Ex Parte Seaton

Good law ✅— No negative treatment on recordhow we know

Decided 1980-06-11

View the full empirical analysis of this case →

¶1OPINION

DOUGLAS, Judge.

¶2This is an application for writ of habeas corpus. Article 11.07, V.A.C.C.P.

¶3Bailey was charged with murder under V.T.C.A., Penal Code, Section 19.02(a)(3), which reads as follows:

“(a) A person commits an offense if he:
“(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in the furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”
The indictment states the following facts:
“And the Grand Jury aforesaid do further present in and to said Court at said term that RONALD CRAIG BAILEY, hereinafter referred to as the Defendant, on or about March 27, 1974, did then and there unlawfully commit and attempt to commit a felony, namely, Injury to a Child, and in the course of and in furtherance of the commission and attempt, the Defendant did commit and attempt to commit acts clearly dangerous to human life which did cause the death of Deandra Clark, hereafter styled the Complainant, namely, beating and bruising the Complainant, a child less than fifteen years of age, with a belt and by some manner and some means, instruments, and weapons unknown to the Grand Jury.”

¶4Bailey contends that his indictment is fundamentally defective because it fails to allege a culpable mental state. We disagree.

¶5The indictment sets forth all the elements of the statute. We have held, since Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), that only those indictments which fail to set forth an offense will be considered fundamentally defective and susceptible to challenge for the first time in a post-conviction writ of habeas corpus. Ex parte Valdez, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Seaton, 580 S.W.2d 593 (Tex.Cr.App.1979); Ex parte Sharpe, 581 S.W.2d 183 (Tex.Cr.App.1979). No claims that petitioner was deprived of adequate notice can be raised in an action under Article 11.07, V.A.C.C.P.

¶6The word attempt includes intent. See Lucero v. State, 502 S.W.2d 750 (Tex.Cr.App.1973). The indictment here is not fundamentally defective.

¶7Petitioner’s requested relief is denied.

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