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604 S.W.2d 193

Ex parte Billey

Court of Criminal Appeals of Texas

Decided September 10, 1980

Court of Criminal Appeals of Texas · decided 1980-09-10

Cited by 1 later decisions — most recently March 1981

1 state decisions

Key passage — most relied on by later courts

““... then and there, with intent to exercise control over the property of Fred E. King enter a building which was not open to the public, without the effective consent of Fred E. King the said owner.””

quoted by 1 later decision, including Ex parte Lightfoot

Relies on Ex Parte Cannon · Bullard v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1980-09-10

View the full empirical analysis of this case →

¶1OPINION

DOUGLAS, Judge.

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

¶3Appellant was convicted in 1976 of burglary of an automobile. After finding the two enhancement allegations true, the court assessed punishment at life.

¶4He now challenges the indictment of one of the convictions used for enhancement. That indictment reads that Billey did:

“. . . then and there, with intent to exercise control over the property of Stanley Sobaski, break and enter a motor vehicle, without the effective consent of Stanley Sobaski, the owner.”

¶5He contends that because the indictment fails to allege that he entered the vehicle “with the intent to commit any felony or theft” it fails to allege an offense against the State.

¶6Following the case of Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1977), the relief is granted.1

¶7Because the error relates only to the punishment assessed and because the trial court assessed the punishment, we need only remand for a new hearing on punishment. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976).

¶8The requested relief is granted.

¶9. This writer dissented in Ex parte Cannon, supra, because the indictment there, just as in the case at bar, sufficiently alleged, in essence, the elements of the intended theft.

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