Ex parte Perez

OPINION

ROBERTS, Judge.

Perez seeks habeas corpus relief from a final conviction for aggravated rape, alleging that he was prosecuted on a fundamentally defective indictment. The indictment alleged that on or about August 6, 1974, he “did then and there unlawfully, by force and threats, and without the consent of

A_ F_ P_, ravish and have sexual intercourse with A_ F_P_, a female not then and there the wife of the said Bernardo Morin Perez, and the said Bernardo Morin Perez did compel submission by A_ F_P_to said ravishment and sexual intercourse by threatening to inflict death and serious bodily injury to the said A_F_P_”

A culpable mental state is an essential element of the offense of aggravated rape. North v. State, 598 S.W.2d 634 (Tex.Cr.App.1980); Stidham v. State, 590 S.W.2d 502 (Tex.Cr.App.1979); Banks v. State, 586 S.W.2d 518 (Tex.Cr.App.1979). The failure of an indictment to allege such an element renders it fundamentally defective, and habeas corpus relief will be granted. Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977) (indictment alleged “did then and there unlawfully attempt by force and threats to have sexual intercourse without the consent of Melonee Randall, a female not his wife and hereafter styled the Complainant, by choking her and beating her with his hands”).

The relief requested is granted. The applicant is ordered released from any restraint in his liberty imposed by the indictment, judgment, or sentence in cause 7322 of the 23rd Judicial District Court of Wharton County.