Ex Parte Barnes

Annotate this Case

547 S.W.2d 631 (1977)

Ex parte Rickey Van Buren BARNES.

No. 53933.

Court of Criminal Appeals of Texas.

March 9, 1977.

*632 Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Art. 11.07, Vernon's Ann.C.C.P., in which petitioner sought to set aside his felony conviction in Cause No. 6967 in the 213th Judicial District Court of Tarrant County. The convicting court has recommended that relief be granted and we agree.

On October 4, 1976, the petitioner was convicted under an indictment charging him with the offense of attempting to obtain a controlled substance by fraud. The conviction resulted from a guilty plea, and punishment was assessed at imprisonment for three (3) years; however, imposition of sentence was suspended and probation was granted.

The disposition of this case is governed by Moore v. State, 545 S.W.2d 140 (Tex.Cr. App., decided October 13, 1976, State's Motion for Rehearing overruled on January 26, 1977). There we held that the criminal attempt provisions set forth in V.T.C.A., Penal Code, Sec. 15.01, do not apply to the Controlled Substances Act (Art. 4476-15, Vernon's Ann.Civ.Stat.). The indictment in the instant case attempts to allege an offense in almost the identical language as that found in Moore v. State, supra. As such, the instant indictment does not allege an offense and the conviction based thereon is void.

The relief requested by habeas corpus application is granted, the conviction is set aside and the indictment ordered dismissed.

It is so ordered.

DISSENTING OPINION

DOUGLAS, Judge, dissenting.

For the reasons stated in the dissenting opinion of Moore v. State, 545 S.W.2d 140 (Tex.Cr.App., 1976), the judgment should be affirmed.

PHILLIPS, J., joins in this dissent.