Andrew Joseph Frank a/k/a Andrew Joseph Lewis a/k/a Joseph Frank v. The State of Texas--Appeal from 252nd District Court of Jefferson County (majority)
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In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00293-CR ____________________ ANDREW JOSEPH FRANK A/K/A ANDREW JOSEPH LEWIS A/K/A JOSEPH FRANK, Appellant V. THE STATE OF TEXAS, Appellee ___________________________________________________________ _________ On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 10-08484 _____________________________________________________________ ________ MEMORANDUM OPINION Andrew Joseph Frank was indicted for felony theft, and the indictment included prior felony convictions. Frank pleaded guilty to the offense and the enhancements. The trial court found the evidence sufficient to find Frank guilty, deferred further proceedings, placed him on community supervision for seven years, and assessed a fine of $1000. The State filed a motion to revoke Frank s unadjudicated probation. Frank pleaded true to one of the alleged violations of the conditions of his community supervision and 1 not true to other alleged violations. The trial court heard evidence on the alleged violations to which Frank pleaded not true. The trial court found the evidence sufficient to find Frank violated the condition to which he pleaded true, and one of the violations to which he pleaded not true. The trial court revoked Frank s unadjudicated probation, found him guilty, and assessed punishment at twenty years of confinement. Frank contends there are not sufficient allegations in the indictment to show that [the] last two paragraphs were for offense(s) that occurred subsequent to the first previous conviction having become final. He argues the asserted sequencing defect in the indictment limits the sentencing range to that for a third-degree felony. A defendant must timely object to any defect of form or substance in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990). The argument Frank makes on appeal was not timely preserved for appellate review. See Teal v. State, 230 S.W.3d 172, 178 (Tex. Crim. App. 2007) ( [A]ll substantive defects in indictments are waivable under the statutes and these defects do not render the indictment void. ); see also Tex. R. App. P. 33.1. We overrule appellant s issue. The trial court s judgment is affirmed. AFFIRMED. ________________________________ DAVID GAULTNEY Justice 2 Submitted on October 13, 2011 Opinion Delivered November 9, 2011 Do Not Publish Before Gaultney, Kreger, and Horton, JJ. 3
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