OPINION
This is a post conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P. In Cause No. F79-12531-RJ below, petitioner was initially charged with aggravated kidnapping1 but, according to a Nunc Pro Tunc Order entered by the trial court, by written motion the State was permitted to abandon the aggravation allegation; whereupon petitioner pleaded guilty to and the trial court found him guilty of what it characterized as "the lesser included felony offense of kidnapping."
Petitioner contends the indictment and the judgment of conviction for kidnapping are fundamentally defective in that a requisite culpable mental state is not alleged. We agree and grant relief.
A person commits the offense of kidnapping "if he intentionally or knowingly abducts another person;"2 one commits the offense of aggravated kidnapping "if he intentionally or knowingly abducts another person" with one of the proscribed accompanying mental states3 — in this instance "with intent to terrorize. . ."4 When the State abandoned the latter feature of aggravation, the indictment still did not allege that appellant "intentionally or knowingly" abducted Lynne. Thus, the indictment never alleged one or the other culpable mental state expressly required to be stated as an essential element common to both offenses.
In these circumstances it is enough to cite Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App. 1980) and grant relief. We need not address here the broader theory posed elsewhere that "it must first be shown that he was originally charged by a valid indictment or information for a greater crime" in order for one "to be validly convicted of a lesser included offense," Teague, J., concurring.
Accordingly, the writ is granted, the conviction in Cause No. F79-12531-RJ is vacated and set aside and the indictment in that cause is dismissed. Therefore, petitioner is released from custody and every manner of restraint in his personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.
It is so ordered.
"unlawfully, then and there with intent to prevent the liberation of Lynne . . . and without her consent, did restrain said Lynne . . . by holding her in a place by using deadly force, to-wit: a shotgun, . . . with intent to terrorize the said Lynne. . ."
To be noted immediately is that a culpable mental state prescribed by V.T.C.A. Penal Code, § 6.02, is not alleged.