I wholeheartedly agree that this case fits the teachings of Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App. 1980), like a glove.
The Legislature, in defining the offense of aggravated kidnapping, placed two requisite mental states into the language of the statute: the offender must act intentionally or knowingly in abducting his victim and the abduction must be done with the specific intent to effectuate one of the six enumerated purposes. See V.T.C.A., Penal Code, § 20.04. In fact, compared to the aggravated robbery statute, the Legislature was even more explicit in defining aggravated kidnapping, because the general culpable mental states of intentionally and knowingly, which are set out in the kidnapping statute, were repeated in the aggravated kidnapping statute, whereas in the aggravated robbery statute the specific elements of the robbery statute, which includes a general culpable mental state, were not reiterated.
For the above reasons, I agree with the applicant and the majority that the original indictment in this cause, which attempts to allege the offense of aggravated kidnapping, is void as a matter of law for failure to allege a culpable mental state.
Recently, Judge Roberts, speaking for this Court in Crawford v. State, 624 S.W.2d 906 (Tex.Cr.App. 1981) (On Court's Motion for Rehearing), in perspicuous language, in commenting on the jurisdictional features of an indictment, stated the following:
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We should not lose sight of the reason why the failure of an indictment to allege all the elements of an offense will result in a reversal, even though it be noticed for the first time on appeal (or even later, by way of habeas corpus). It is because a valid indictment or information is the only means by which the trial court can obtain jurisdiction over the person of the defendant. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Cr.App. 1980). If the trial court does not obtain personal jurisdiction, its acts are void. Id. at 528 n. 5. These defects can be raised for the first time in this court because they are jurisdictional, and they may not be waived. Lackey v. State, 574 S.W.2d 97, 100 (Tex.Cr.App. 1978). From these principles it follows that an indictment which fails to allege an offense is not valid, fails to confer jurisdiction, renders the judgment of the trial court void, and is subject to [collateral] attack . . . (emphasis added).
For a person to be validly convicted of a lesser included offense,1 it first must be shown that he was originally charged by a valid indictment or information for a greater crime. E.g. Art. 4.06, C.C.P. If the original indictment or information for the greater crime is valid, that indictment or information gives the trial court jurisdiction over not only the greater offense alleged but also jurisdiction over any and all lesser included offenses. Thus, if the indictment in this cause originally had been a valid indictment, the trial court could have proceeded to judgment on any lesser included offense of the main offense, including but not limited to the lesser included offense of kidnapping. See Ex parte McClelland, 588 S.W.2d 957 (Tex.Cr.App. 1979); and Crawford v. State, supra. However, it should follow that if a trial court never obtained personal jurisdiction over the defendant, by way of a valid indictment or information, any subsequent judgment rendered, including but not limited to one rendered for committing a lesser included offense of the main charge, is null and void. See Ex parte McClelland, supra, and Carpenter v. State, 551 S.W.2d 724 (Tex.Cr.App. 1977).
I would, therefore, hold that as the original indictment in this cause is void, the trial court never obtained jurisdiction over the applicant. As the trial court never obtained *Page 915 jurisdiction over applicant, it had no authority to enter a judgment finding the applicant guilty for committing the lesser included offense of kidnapping. "Such judgment [as here] has been characterized as a dead limb upon the judicial tree, which may be chopped off at any time, capable of bearing no fruit to plaintiff but constituting a constant menace to defendant." See Freeman and Tuttle, A Treatise On The Law OfJudgments, (5th Edition 1925).
A conviction for committing a lesser included offense of the main charge, if predicated on a void indictment, is but a branch of the dead limb. The branch which binds the appellant to the penitentiary is rightfully ordered chopped off, for he is being unlawfully confined by virtue of an invalid judgment of conviction. I, therefore, agree with what my Brethren state in their majority opinion on this point.
However, I firmly disagree that this Court should not address what I say is or should be the law, to-wit: "It must first be shown that he was originally charged by a valid indictment of information for a greater crime in order for him to be validly convicted of a lesser included offense." Why not discuss the issue? Here, appellant was convicted of a lesser included offense to a greater crime. The majority implies, by its omission of any discussion, that when the offense was reduced to the lesser included offense of kidnapping, the indictment still had life. Such reasoning, if that be what it is called, is amazing to say the least and, if true, should be indelibly imprinted upon the entrance way to the front of our building for all mankind to observe. However, mark me "dissenting" to such inscription.
This indictment was void from the beginning. No! It never breathed life. It is nothing more than a branch of a dead tree, see supra. We should not leave the door open for any sort of experimentation by some of our more enterprising members of the Bench and Bar because the open door, in my view, will more closely become a trap door for some poor soul who might chance to practice experimentation in one of the trial courts of this State.
I, therefore, respectfully concur in the result the majority reaches, but dissent to its failure to discuss what I feel should be discussed. Not only should we chop off the dead branch, but we should eradicate from the premises the entire dead tree2 before some innocent member of the Bench or Bar injures himself through an act of experimentation.