Ex Parte Clark , 1979 Tex. Crim. App. LEXIS 1443 ( 1979 )

OPINION

ROBERTS, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to the provisions of Article 11.07, Vernon’s Ann.C.C.P.

On March 7, 1975, appellant, after pleading guilty, was convicted for the offense of credit card abuse in Cause No. C-7411609HP. See V.T.C.A., Penal Code, Section 32.31(b). Punishment was assessed by the court at two years’ confinement. No appeal was taken. The record reflects that appellant has since successfully completed this sentence and has been discharged therefrom.

Appellant is presently serving a sentence for a conviction for unauthorized use of a vehicle. See V.T.C.A., Penal Code, Section 31.07. He was convicted for this offense on December 7, 1976, after pleading guilty. The court assessed his punishment at six years’ confinement. We affirmed this conviction in an unpublished per curiam opinion delivered October 5, 1977. See Clark v. State, No. 55,030, delivered October 5, 1977.

On October 23, 1978, petitioner filed his application for writ of habeas corpus challenging the validity of his prior conviction for credit card abuse (Cause No. C — 74— 11609HP), the sentence for which he has successfully completed.

On October 31, 1978, the trial court, pursuant to Article 11.07, § 2(c), supra, entered findings of fact and conclusions of law in which the court found that petitioner’s indictment for the credit card abuse offense was fundamentally defective and that his conviction therefor was void; the court further recommended that although petitioner was not presently confined due to this conviction, he should, nevertheless, be granted relief in light of the serious collateral consequences which must necessarily result from this conviction.

It is clear that a fundamentally defective indictment may be challenged by writ of habeas corpus under Article 11.07, supra. Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978). Moreover, because of the serious collateral consequences arising from a felony conviction, the doctrine of mootness does not prohibit a collateral attack by writ of habeas corpus brought after the petitioner has successfully served the sentence for the felony conviction. Ex parte Harp, 561 S.W.2d 180 (Tex.Cr.App.1978).

In the present case, the indictment which petitioner now challenges alleges that he committed the offense of credit card abuse by:

“. . . receivpng] an American Express Credti Card # 013-091 — 217—3— 800A with intent to use it, without the effective consent of the cardholder.”

We hold that this indictment fails to charge an offense of credit card abuse under any theory embodied in Section 32.31, supra; therefore, petitioner is entitled to the relief requested. See also Ex parte Walters, supra.

Accordingly, appellant’s conviction in Cause No. C-74r-11609HP for the offense of credit card abuse is void and the prosecution under this invalid indictment is ordered dismissed.

The relief sought is granted.