holding that absent fundamental error, one who fails to appeal when placed on probation waives his right to review
How later courts described this case
- holding that absent fundamental error, one who fails to appeal when placed on probation waives his right to review
- holding that one who fails to appeal when placed on probation waives his right to review
Written by the judges who cited it.
The opinion
ODOM, Judge
(concurring).
I concur in the opinion of the majority that the question of whether the indictment fails to allege an essential element of the offense may be considered as may be the question of whether the defect renders the indictment fundamentally defective.
Were the question of the value of the property merely a question of notice, the defect would have been waived. But as we stated in Shane v. State, 513 S.W.2d 579 (Tex.Cr.App.1974), involved is not merely a question of notice, but rather, an essential element of the offense alleged. If the charging instrument as drafted fails to allege some essential element, then no offense is alleged and no conviction may rest thereon.
Likewise, in American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), we stated:
“If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered thereon. If it does not so allege, then it is utterly insufficient and any conviction based thereon is void. A void conviction may be challenged at any time . . . .”
See also Articles 27.08 and 27.09, V.A.C.C. P., and the discussion thereof in American Plant Food Corporation, supra.
I therefore concur.