Shaffer v. State

769 S.W.2d 945, 1988 Tex. App. LEXIS 998, 1988 WL 45158

• Court: Court of Appeals of Texas
• Decided: May 10, 1988
• Docket: No. 12-87-00212-CR
• Status: Published

Opinions

BILL BASS, Justice.

The trial court, sitting without a jury, convicted Gerald Milton Shaffer of the offense of robbery and assessed his punishment at thirty years’ confinement.

We reverse and remand.

Although the appellant brings three points of error, his first point warrants a reversal of the trial court’s decision. The appellant contends that the trial court committed reversible error by accepting the appellant’s, written waiver of a jury trial without the written consent of the State’s attorney. We agree. Article 1.15 of the Texas Code of Criminal Procedure provides that the appellant cannot be convicted of a felony without the verdict of a jury unless he waived that right in compliance with article 1.13. This article reads as follows:

The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him. (Emphasis added).

Tex. Code Crim.Proc.Ann. art. 1.13 (Vernon 1977).

This section not only requires the written waiver of the defendant, but also requires the written consent of the attorney representing the State. In this case, the State’s attorney failed to consent in writing to the appellant’s waiver of a jury trial.

In Hoobler v. State, 730 S.W.2d 755 (Tex.Cr.App.1987), the Texas Court of Criminal Appeals held that the failure to secure the State’s attorney’s written consent to the waiver of the defendant’s right to a jury trial was fundamental error requiring reversal. The court held that “[a] valid waiver of a jury is a prerequisite to a trial without a jury. The validity of the waiver is conditioned upon the State’s consent in writing. Before the waiver can become effective, the consent of counsel must be obtained.” Hoobler, 730 S.W.2d at 756.

In this case, Shaffer personally signed an affidavit waiving his right to a jury trial. However, the State’s attorney failed to sign his written consent. Although the record clearly shows that Shaffer orally agreed to waive a jury trial before the court and the State’s attorney orally concurred with the appellant’s decision, we are bound by the decision of the Court of Criminal Appeals in Hoobler. Appellant’s first point of error is sustained.

In his second point of error, Shaffer contends that there is insufficient evidence to establish the bodily injury required by section 29.02 of the Texas Penal Code. Bodily injury is defined as “physical pain, illness, or any impairment of physical condition.” Tex.Penal Code Ann. § 1.07(a)(7) (Vernon 1974). In Lewis v. State, 530 S.W. 2d 117, 118 (Tex.Cr.App.1975), the Court of Criminal Appeals found that the State sustained its burden in proving the element of “bodily injury” and concluded the evidence was sufficient to support the conviction where the victim related that in the course of forcibly taking her suitcase, the defendant twisted her arm and caused her “physical pain.” An examination of the record reveals that Shaffer struck the victim’s head with his fist two or three times, knocking her to the ground and scraping her knees. The victim testified that she suffered physical pain in her face, head, and knees. We find sufficient evidence to prove that the victim suffered bodily injury as a result of Shaffer’s attempt to steal her purse. Appellant’s second point of error is overruled.

In Shaffer’s third point of error, he contends that the trial court erred in enhancing his conviction from second degree to first degree robbery because the conviction used for this enhancement was based on a void indictment. Section 12.42(b) of the Texas Penal Code provides that a second degree felony can be enhanced to a first degree felony with proof of a prior felony conviction. The State enhanced the robbery conviction in this case by showing Shaffer’s conviction based on the first count of a two-count indictment from a Tarrant County Grand Jury in 1978. The first count charged theft of property with a value greater than $10,000. The second count charged theft of property with a value between $200 and $10,000. While the second count contained the language “with intent to deprive the owner of the property,” the first did not. The appellant contends that because the first count of the indictment, which the State used for enhancement, failed to allege this language, the indictment is fundamentally defective and cannot be used to enhance his conviction for robbery in this case. We agree.

In Smith v. State, 571 S.W.2d 917 (Tex.Cr.App.1978), the Court of Criminal Appeals held a fundamental defect in one count of an indictment may not be cured by incorporating allegations of another count by reference since each count of an indictment must definitely charge commission of a distinct offense. The court also held “that a theft indictment is fundamentally defective when it fails to allege that the defendant acted with intent to deprive the owner of property, an element necessary to every theft allegation.” Smith, 571 S.W. 2d at 919. Moreover, a conviction based on a fundamentally defective indictment cannot support the enhancement of a defendant’s punishment. White v. State, 587 S.W.2d 114 (Tex.Cr.App.1979). Because the State could not incorporate the necessary language from the second count to cure its omission in the first count, the conviction is void and the State was prohibited from using that conviction for enhancement. Appellant’s third point of error is sustained.¹

Judgment is reversed, and the cause is remanded.

COLLEY, J., concurs.

1 .Were we not required to reverse and remand this cause by reason of our ruling on Shaffer’s first point, we would reverse the judgment, but not the conviction, and remand the cause for assessment of punishment for a second degree felony.