Polk v. State

547 S.W.2d 605 (1977)

Woodrow POLK, Jr. v. The STATE of Texas, Appellee.

No. 51255.

Court of Criminal Appeals of Texas.

March 9, 1977.

*606 Ebb B. Mobley, III, court appointed, Longview, for appellant.

Odis R. Hill, Dist. Atty., and Alvin G. Khoury, Asst. Dist. Atty., Longview, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

BROWN, Commissioner.

Appeal is taken from a conviction for indecency with a child. Punishment was assessed by the jury at seven years.

At the outset, we note that appellant contends the court erred in overruling his motion to quash the indictment based upon the fact that the indictment failed to allege an element of the offense, namely, "intent to arouse or gratify the sexual desire of any person."

In the recent case of Victory v. State, Tex.Cr.App., 547 S.W.2d 1 (Decided January 21, 1976, State's Motion for Rehearing overruled, November 3, 1976), we were faced with the identical question, and held that the court erred in failing to grant the motion to quash for the reason that the indictment was defective for failure to allege such culpable mental state.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J., dissents.