*1 strument merely described as a “club” is made,
instrument specifically designed, adapted for the purpose inflicting serious bodily injury or death. Alexander Reisner cf. (Tex.Cr.App.1982); Tatom v. judgment is reversed and remanded instructions enter a acquittal. Jay JOHNSON, Alfred
Appellant. No. 69073. Texas, Criminal Appeals of En Banc. Jay pro Alfred se. May Huttash, Atty., Robert State’s and Alfred Rehearing Denied July Walker, Austin, Asst. Atty., State’s
State.
OPINION
ONION, Presiding Judge. is a post-conviction corpus habeas proceeding brought provisions under the V.A.C.C.P. Appellant pro se application writ of habeas in the trial corpus court. hearing evidentiary was held. The trial controverted, judge found no un- facts legality resolved material applicant’s confinement and recommended relief be denied. The forwarded this court. Applicant illegally contends he is con- fined in the forgery by pass- virtue a conviction for ing in Cause No. in the 208th Dis- County, trict of Harris that at the his conviction on time of *2 402
the in unpublished per opinion. trial court was without over an curiam The the cause as he had of the convict- basis reversal ed of State, the same and that conviction offense defective indictment. McFarland v. was pending Ap- in the of Criminal 605 904 S.W.2d peals. that question There be at the time 1978, 17, On was April applicant indicted of appellant’s second conviction in the trial 278,097 for forgery by passing in Cause No. court his first conviction for the same of- in County Harris in the 230th District fense, final, was pending on Court. upon Trial was had this indictment appeal in Appeals. the Court of Criminal 3, on October 2 and the Following 1978. 44.11, V.A.C.C.P., 1965, Article in effect jury’s verdict, guilty punishment was as- at appellate the time of the transfer the (7) sessed im- by years’ at seven record, provided part: in 20, 1978, prisonment. On October sentence the filed “Upon appellate being was and imposed appeal giv- notice of was Appeals, in all fur- the Court Criminal en. was The record ordered transferred to court, except the trial proceedings ther in 19, the Court on Appeals July of Criminal as 44.04 as to bond provided by It was received this court and in Article shall proceedings 28, filed August given 1979 and our suspended be until the and arrested 62,428. Cause No. is ment 9, 1979, On was July applicant re-indicted ” (Em- court.... by received forgery passing same by offense supplied.) phasis 298,435 Cause 208th No. the said District Two prior felony Court.1 convictions were the trial court was Obviously alleged punishment. enhancement new trial without a prior This was 10 the order days in Cause the No. dismiss indictment Cause 278,097 appellate No. rec- transferring 278,097 appellate after record had ord. Ybarra, in this court. See v. (Tex.Cr.App.1982); Page 629 943 S.W.2d first was pending While the State, (footnote 1) (Tex. 532 # S.W.2d 341 court, appeal appel- appears that State, v. 503 Cr.App.1976); Montes S.W.2d lant No. filed in the trial court Cause State, 241 Carrillo 278,097 “Original of Time Motion Out (Tex.1972). 12,1979. for New Trial” on On October granted. same The date motion was a sponte granted the court sua Whether then moved to State indictment or it took such action new trial whether it was Cause No. dismissed. upon request applicant motion transcript A was forwarded supplemental result. Cf. would not call for a different to this court. (Tex.Cr. Wilson The was without App.1978). court The in- enhancement paragraphs ap jurisdiction. attempt re-try dictment in Cause were aban- No. there pellant while upon doned and on by same conviction for the outstanding was an plea guilty entered a applicant Once offense on was by passing before court to forgery only by acquired jurisdiction, it is court 298,435. charged in No. Punishment jurisdiction is of this that court imprisonment. at years’ assessed three ex rel. court. State restored to district pronounced same date. Sentence Hatten, (Tex.Cr. Vance v. appeal was taken. App.1974). panel On June the second first conviction in our It of follows appellant’s reversed No. 278,097) 62,428 (Trial applicant No. conviction of Cause No. 278,097. No. it was a ment of Cause indictment reflects re-indict- requirements must jurisdictional must be set aside. See Ybarra v. “All action, supra. or the court’s other satisfied dismissal, void. ‘There are three prayed appli The relief absolutely necessary seem to be facts that cant granted.2 The Clerk of the court of the court or as furnish the questions: dictional *3 a copy of this opinion. First, jurisdiction must have second, subject-mat- person;
McCORMICK, Judge, dissenting.
ter; and, third,
the particular
to render
As
majority, applicant’s
noted
Otherwise,
pros-
rendered.
original
278,-
Number
void,
ecution
as also the
097 was reversed because of fundamental
added)
(Emphasis
Emery
ment.’
error in the indictment.
then
The Court
State, supra.
juris-
has
‘If
no
fundamentally
concludes that since the
de-
diction, it
no further with
proceed
should
fective
ap-
indictment case
pending
to
it
case other than
for want
peal
Court,
the trial court’s action on
power
to hear and determine the con-
the new indictment
case,
In
troversy.
any
such
order
jurisdiction,
“Once this court has acquired
entered,
decree
other than
of dismiss-
one
it is only by judgment of this court that
al,
added).”
(Emphasis
is void.’
jurisdiction
court,”
is restored to the district
Although
proper
this is
case
opines
majority. But,
how
this
which to
ab-
re-examine
rule
jurisdiction
Court restore
which
any
sence
element
the offense from
held did not exist?
In reversing Cause
indictment fails to invoke the trial court’s
Number
the Court held that
jurisdiction,
dramatically
up
it
point
does
trial
court was without
due to a
said,
such need. As
Wendall
Oliver
Holmes
fundamental
defect
“It
revolting
have
better reason
the prosecution.
dismissed
ma-
Today the
a rule of law than that so it was laid down
jority concludes that even though the trial
Henry
in the time of
IV.
It is still more
court never had
Num-
revolting
grounds upon
if the
which it was
ber
and even
since,
laid down
vanished
long
have
court’s action in Cause Number
persists
rule
from blind limitation
void,
null and
the trial court was without
Law,
past.” Holmes,
Path
to act Cause Number
(1897).
10 Harv.L.Rev.
So
because of the “outstanding conviction.”
pleading
with the archaic rules of
continues to
follow.
illogical
Such an
points again
conclusion
need
this Court to re-examine its
I dissent.
position
regard
de
fective
position
indictments. That
is ex
CAMPBELL, J.,
joins in this dissent.
pressed
Judge
Odom’s concurring opinion
Cannon,
parte
(Tex.
Ex
rules
of courts to
proper invocation of
“jurisdiction”
Judge
is found.
Odom said:
2. Even if the
had
first conviction
final
See Article
V.A.C.C.P. Wilson v.
conviction,
pending
Williams,
(Tex.
parte
rather
Ex