
    Ex parte George Monroe HYETT.
    No. 66761.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 28, 1981.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, V.A.C.C.P.

The petitioner contends the felony information to which he pleaded guilty on May 23, 1980 is fundamentally defective because it fails to allege any day on which the offense occurred, does not show the offense was anterior to the filing of the information or that the offense was not barred by the statute of limitation. He further urges that there is no allegation where the offense charged occurred, and that the requirements of Article 21.21, V.A.C.C.P., have not been met.

The felony information reads as follows: “In the Name and by the Authority of the State of Texas:
“NOW COMES the undersigned District Attorney, in and for the 23rd Judicial District Court of Matagorda County, Texas, and presents in and to said Court, at the December-June term A.D. 1980, thereof, that George Monroe Hyett, hereinafter styled Defendant, duly accompanied by Defendant’s attorney of record, in open court, and prior to arraignment herein, was duly advised by the Court of Defendant’s right to request this case can be presented by Indictment, or in the alternative, charged by Information; and the Defendant admitted in writing the receipt of said explanation, that same was then and there fully explained, and clearly understood; whereupon accused waived being charged by Indictment, and requested this case be presented by Information, said accusation being a felony, other than a capital offense; and in behalf of said State, the undersigned District Attorney further presents in and to said court, at said term, before the making and filing of this Information: Did then and there knowingly and intentionally manufacture a controlled substance to-wit: Methamphetamine against the peace and dignity of the State.

The felony information was filed on May 23, 1980. On the same date the judgment reflects that the appellant entered a guilty plea before the court and waived trial by jury. Punishment was assessed at five (5) years’ imprisonment. Sentence was pronounced on the same date. No appeal was taken.

When petitioner’s habeas corpus application containing the aforementioned allegations about the information and also claiming ineffective assistance of appointed counsel was presented to the trial court, it found the allegations to be without merit. The record was forwarded to this court.

Article 1.141, V.A.C.C.P., provides:
“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.”

Under this statute when a defendant waives the right to be tried upon an indictment and agrees to be tried upon an information, the prosecution is not required to also file a complaint. Chappie v. State, 521 S.W.2d 280 (Tex.Cr.App.1975); Washington v. State, 531 S.W.2d 632 (Tex.Cr. App.1976).

Article 21.21, V.A.C.C.P. (Requisites of an Information), provides in part:

“An information is sufficient if it has the following requisites:
íí(l) ⅜ * ⅜
“(2) That it appears to have been presented in a court having jurisdiction of the offense set forth;
ii(g) * * *
“(5) It must appear that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed;
“(6) That the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation;
“(7) That the offense be set forth in plain and intelligible words;
(i(8) ⅜ ⅜ ⅜
4<(9) ⅜ ⅜

See and cf. Article 21.02 (Requisites of an Indictment). Article 21.23 (Rules as to Indictment Apply to Information).

With regard to appellant’s contention that the information fails to allege the place where the offense charged was committed, we agree that Ex parte Hunter, 604 S.W.2d 188 (Tex.Cr.App.1980), is dispositive of such contention. There the felony information, though not a model pleading by any means, showed that it was presented by an assistant district attorney of Harris County to a district court in that county and with the term “then and there” being utilized as reference the court found the felony information sufficient. While we are dealing with a form apparently used as a waiver of indictment and a felony information in one instrument, we conclude the same reasoning applies and there is a compliance with Article 21.21(5), V.A.C.C.P.

As to the failure to allege the day of the alleged offense, we have a more serious question.

It has been stated that the date of the commission of the offense must be distinctly alleged and it must be a date certain. State v. Randle, 41 Tex. 292 (1874); Mealer v. State, 66 Tex.Cr.R. 140, 145 S.W. 353 (1912).

In Hodge v. State, 164 Tex.Cr.R. 69, 297 S.W.2d 138 (1957), it was said the State’s accusatory pleading ought to be so clear and definite the accused is placed on notice not only of the offense with which he is charged but the date it was alleged to have been committed.

And it has long been held that the time of the commission of the offense is a matter of substance and not amendable. Drummond v. State, 4 Tex.App. 150 (1878); Huff v. State, 23 Tex.App. 291, 4 S.W. 890 (1887).

An indictment to be sufficient must give day, month and year of the commission of the offense. Hess v. State, 528 S.W.2d 842 (Tex.Cr.App.1975); Hill v. State, 544 S.W.2d 411 (Tex.Cr.App.1976); 1 Branch’s Anno.P.C., 2nd ed., § 452, p. 454. Failure of an indictment to allege the date of the commission of an offense constitutes fundamental error. Hess v. State, supra.

It has been frequently said when an “on or about” date is alleged as the date of the commission of the offense the time mentioned must be a date anterior to the presentation of the indictment and not so remote that prosecution is barred by the statute of limitation. Under sueh circumstances, the State is not bound by the date alleged, but conviction may be had upon proof that the offense was committed any time prior to the return of that indictment that is within the period of limitation. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960). See Article 21.02(6), V.A.C.C.P.

We are not here confronted with an “on or about” allegation but with no allegation as to the time of the commission of the offense, which is fundamental error.

The petitioner is entitled to the relief requested. We need not pursue or request an evidentiary hearing on the claim of ineffective assistance of counsel.

The conviction in trial cause number 5839 is hereby set aside and the petitioner ordered released. A copy of this opinion shall be furnished to the Texas Department of Corrections.

It is so ordered.

790 Tex. 610 SOUTH WESTERN REPORTER, 2d SERIES COURT OF CRIMINAL APPEALS OF TEXAS PER CURIAM OPINIONS (UNPUBLISHED) Title * Number County Offense White, Ex parte.66758 Ochiltree Habeas Corpus Hunt, Ex parte.66394 San Saba Disposition Date Relief Granted Remanded Habeas Corpus The above cases were handled by the Court En Banc McCrary.57349 Hunt Murder With Malice Affd. The above case was handled by Panel No. 3, Second Quarter, 1979 Wilson .66056 Harris Arson Affd. Lewis, Ex parte.65963 Harris Habeas Corpus (Bail) Dism. The above cases were handled by Panel No. 1, Fourth Quarter, 1980 Hill .66588 Ortega .66428 Hegger.66357 Dallas El Paso Harris Affd. Affd. Affd. Conrad.66425 Grimes.66426 Grimes .66427 Griffin .66506 Thomas .66578 Sullivan .66469 Burglary of a Building Aggravated Perjury Obtaining Hydromor-phone by a Forged Prescription (Prior Conviction) Harris DWI Affd. Harris Aggravated Robbery Affd. Harris Aggravated Robbery Affd. Harris Robbery Affd. (Revocation of Probation) Harris Bond Forfeiture Dism. Nueces Burglary of a Abated Habitation (Prior Conviction) The above cases were handled by Panel No. 1, First Quarter, 1981 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 Chase.66470 Lubbock Burglary of a Affd. 1/14/81 Habitation (Revocation of Probation) The above case was handled by Panel No. 2, First Quarter, 1981 Legris.66417 Dallas Murder Affd. 1/14/81 Brussard .59725 Harris Theft Over $200 Affd. 1/14/81 (Prior Conviction) Evans.66395 Harris Appeal From an Order Affd. 1/14/81 Denying Bail Downs .66422 Harris DWI Affd. 1/14/81 Brown .66423 Harris Robbery Affd. 1/14/81 • The title of each case is the name of the indicated appellant versus the State, unless otherwise indicated.

PER CURIAM OPINIONS (UNPUBLISHED) Tex. 791 PER CURIAM OPINIONS (UNPUBLISHED) — Continued Title * Number County Wichita Flowers .66416 Sylvester .60336 Collin Johnson .66576 Harris Butler.66577 Harris Johnson .66191 Tarrant Offense Forgery (Prior Conviction) Burglary of a Habitation Bond Forfeiture Bond Forfeiture Robbery (Revocation of Probation) Disposition Affd. Dism. Dism. Dism. Dism. The above cases were handled by Panel No. 3, First Quarter, 1981 Smith .59056 Brazoria Delivery of Marihuana Affd. Kevil.64391 Travis Forgery By Possession Affd. Blue, Ex parte.66837 Travis Dallas Habeas Corpus Relief Granted The above cases were handled by the Court En Banc Washington ... 66344 Harris Medellin, Ex parte. .65937 Ector Appeal From An Order Denying Bail Habeas Corpus (Bail) Dism. Relief Denied The above cases were handled by Panel No. 1, Fourth Quarter, 1980 Jett.59978 Bexar Melton .65545 Bexar Moore.65546 Bexar Washington .. .65481 Dallas Biggins.66334 Dallas Rigales.59700 El Paso Philpot.59435 Harris Johnson .63557 Harris Lefall .65488 Harris O’Connor.66258 Harris Perry.66224 Lubbock Aggravated Robbery Affd. Burglary of a Vehicle Affd. (Revocation of Probation) Murder Affd. Burglary of a Vehicle Affd. (Revocation of Probation) Burglary of a Affd. Habitation (Prior Conviction) Theft Over $200 Affd. (Three Counts) Burglary of a Affd. Habitation Burglary of a Building Affd. (Habitual) Possession with Intent Affd. to Deliver Hydromor-phone Aggravated Assault Affd. (Revocation of Probation) Burglary of a Vehicle Affd. (Revocation of Probation) * The title of each case is the name of the indicated appellant versus the State, unless otherwise indicated. Date 1/14/81 1/14/81 1/14/81 1/14/81 1/14/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81

792 Tex. 610 SOUTH WESTERN REPORTER, 2d SERIES PER CURIAM OPINIONS (UNPUBLISHED) — Continued Title * Number County Offense Disposition White.66179 McLennan Burglary of a Building Affd. (Revocation of Probation) Trejo.65449 Nueces Burglary of a Building Affd. (Revocation of Probation) Woods .65538 Tarrant Robbery Affd. (Revocation of Probation) Tarrant.66177 Tarrant Aggravated Robbery Affd. The above cases were handled by Panel No. 3, Fourth Quarter, 1980 Melendez.66575 Bell Escape James.59673 Bowie Attempted Burglary (Habitual) Ross .59675 Dallas Burglary of a Building (Habitual) Roy.59867 Dallas Aggravated Robbery Roy.59868 Dallas Aggravated Robbery Henderson .... 66161 Dallas Possession of Heroin (Revocation of Probation) Gegas.59843 Harris Burglary of a Habitation (Prior Conviction) Bell.59845 Harris Burglary of a Building Langston .59851 Harris Murder (Habitual) Frederiksen ...62100 Harris Theft Over $200 Hunt.65640 Harris Murder Súchil.59793 Midland Murder With Malice Cantu .59808 Nueces Possession of Marihuana Garcia.59672 Taylor Murder The above cases were handled by Panel No. 1, First Ramazani .... 66625 Dallas DWI (Revocation of Probation) Payne.66619 El Paso Delivery of Marihuana Padilla .66623 El Paso Assault (Revocation of Probation) Watson.66624 El Paso Possession of Marihuana Packer .66594 Potter Burglary of a Building (Revocation of Probation) Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Affd. Quarter, 1981 Affd. Affd. Affd. Affd. Affd. * The title of each case is the name of the indicated appellant versus the State, unless otherwise indicated. Date 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81 1/21/81

PER CURIAM OPINIONS (UNPUBLISHED) Tex. 793 PER CURIAM OPINIONS (UNPUBLISHED) — Continued Title * Number County Offense Disposition Date Sandoval .66628 Potter Possession of a Fire- Affd. 1/21/81 arm by a Felon (Revocation of Probation) Walbey.66536 Refugio Possession of Affd. 1/21/81 Marihuana (Revocation of Probation) Sullivan .66593 Travis Theft Over $10,000 Affd. 1/21/81 (Revocation of Probation) The above cases were handled by Panel No. 2, First Quarter, 1981 Deckard.65814 Bexar Bond Forfeiture Affd. 1/21/81 The above case was handled by Panel No. 3, First Quarter, 1981 The title of each case is the name of the indicated appellant versus the State, unless otherwise indicated. 
      
      . With regard to the possession of a controlled substance, we hold that neither an indictment nor information must allege where within the county of the alleged offense the possession occurred. Ex parte Hunter, supra, and cases there cited.
     