Opinion
No. 50537.
February 11, 1976.
Appeal from the 179th Judicial District Court, Harris County, R. W. Williford, J.
Lawrence T. Newman, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION ON APPELLANT'S MOTION FOR REHEARING
This is a conviction for robbery by assault with a firearm, wherein punishment, enhanced under Article 62, Vernon's Ann.P.C., 1925, was assessed at life, was affirmed in a per curiam opinion on November 19, 1975. On consideration of appellant's motion for leave to file a motion for rehearing the court agreed sua sponte that the motion should be granted and rehearing had in light of the indictment.
The indictment in the instant case contains the same fundamental defect as that found in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App. 1973), in that it fails to allege "to whom the property allegedly taken belonged." See also Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App. 1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App., delivered November 5, 1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App. 1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App., delivered November 5, 1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App., delivered November 5, 1975).
The appellant's motion for rehearing is granted, the order of affirmance is withdrawn, and the judgment is reversed and the cause remanded.