MORRIS LEE McFAN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00641-CR
 
MORRIS LEE McFAN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, ROWE, AND BURNETT
OPINION BY JUSTICE ROWE
JUNE 20, 1989
        After a nonjury trial, Morris Lee McFan was convicted of theft. The trial court sentenced McFan to thirty-five years' confinement. In two points of error, McFan complains that the evidence was insufficient to support his conviction and that the trial court erred by failing to strike an enhancement paragraph in the indictment. We overrule both points of error and affirm the trial court's judgment.
        The trial court found McFan guilty of felony theft pursuant to Penal Code section 31.03(e)(4)(C). Under that section, a theft is a third degree felony if the value of the stolen property is less than $750 and the defendant has been previously convicted of any grade of theft two or more times. TEX. PENAL CODE ANN. § 31.03(e)(4)(C) (Vernon 1989). The indictment in this case set forth the primary offense as theft of five packages of pork chops of the value of at least $20 but less than $200. The indictment alleged that McFan had been convicted of two prior thefts--one felony and one misdemeanor. The indictment also contained two general enhancement paragraphs averring that McFan had been previously convicted of robbery and burglary of a building.
Sufficiency of Evidence--Prior Theft Conviction
        In his first point of error, McFan complains that the evidence was insufficient to establish the finality of his prior felony theft conviction. The record reflects that on July 8, 1976, McFan was convicted on his plea of guilty of felony theft and placed on probation. Subsequently, the State filed a motion to revoke probation alleging that McFan had failed to report to his probation officer. The court then entered an order revoking McFan's probation on the ground that he had committed another offense in violation of the terms of his probation. During his testimony, McFan admitted that he had been finally convicted of this offense, that the trial court had revoked his probation, and that he was sent to prison for the offense. On appeal, McFan argues that because of the variance between the motion to revoke and the order revoking his probation, the State failed to prove the validity of his conviction.
        A defendant may collaterally attack the validity of a prior conviction used for enhancement only if it is void or tainted by a serious constitutional defect. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979); Wilson v. State, 747 S.W.2d 490, 493 (Tex. App.--Beaumont 1988, pet. ref'd). The defendant may not raise lesser infirmities even if they might have resulted in a reversal on appeal from the prior conviction. Galloway, 578 S.W.2d at 142. Essentially, McFan argues that he was denied one of the rudiments of due process in the prior case because the motion to revoke failed to fully inform him of the alleged violation upon which the court revoked his probation. See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. [Pane Op.] 1980). A defendant's right to such notice is waived, however, unless he makes some type of due process objection at the time probation was revoked or at the time sentence was imposed. See Herndon v. State, 679 S.W.2d 520, 522-23 (Tex. Crim. App. 1984); Rogers v. State, 640 S.W.2d 248, 263-64 (Tex. Crim. App. 1981); Trifovesti v. State, 759 S.W.2d 507, 508 (Tex. App.--Dallas 1988, pet. ref'd). We think that it would be inconsistent to allow a defendant to raise this complaint in a collateral attack when he may have waived his right to complain on direct appeal by failing to object. We hold, therefore, that McFan may not collaterally attack his prior conviction on the ground that the motion to revoke and order revoking his probation set forth different violations. We overrule his first point of error.
Prior Robbery Conviction
        In his second point of error, McFan contends that the trial court erred in failing to strike the general enhancement paragraph which alleged McFan's prior robbery conviction. McFan argues that robbery is a species of theft and that the State may not use such conviction to enhance his punishment under the general enhancement statute FN:1 because he was convicted pursuant to section 31.03(e)(4)(C), which contains special enhancement provisions for the offense of theft. The State responds that robbery is an assaultive offense and not a form of theft, which is an offense against property.
        Under section 12.42, the State must use felony convictions other than theft in order to enhance the punishment for theft under section 31.03(e)(4)(C). Rawlings v. State, 602 S.W.2d 268, 269 (Tex. Crim. App. [Panel Op.] 1980). The rationale for this rule is that the special enhancement provision of the theft statute supplants the general enhancement statute with respect to prior theft convictions. Id. at 170-71. In other words, if the State could use a prior conviction to enhance a misdemeanor theft to a felony under section 31.03(e)(4)(C), FN:2 it is precluded from using such conviction to further enhance the punishment for such felony theft under the general enhancement scheme of section 12.42.
        Section 31.03(e)(4)(C) might prevail over section 12.42 under Rawlings if robbery is still a form of theft as it was under our former Penal Code. See Dickey v. State, 336 S.W.2d 165 (Tex. Crim. App. 1960). Robbery under our new Penal Code, however, is no longer an aggravated form of theft but is rather a type of assault. Ex parte Lucas, 574 S.W.2d 162, 163 (Tex. Crim. App. 1978); see Hightower v. State, 629 S.W.2d 920, 922 (Tex. Crim. App. [Panel Op.] 1981) (aggravated robbery). Indeed, the actual commission of a theft is not necessary for conduct to constitute a robbery. White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984); Watson v. State, 532 S.W.2d 619, 622 (Tex. Crim. App. 1976). Accordingly, we conclude that section 31.03(e)(4)(C) does not preclude the use of prior robbery or aggravated robbery convictions to enhance the punishment for the primary offense of theft. The use of such prior convictions falls under the general enhancement scheme of section 12.42, which was properly used to assess appellant's punishment. We overrule McFan's second point of error.
        We affirm the trial court's judgment.
 
                                                          __________________________
                                                          GORDON ROWE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00641.F
 
FN:1 TEX. PENAL CODE ANN. § 12.42 (Vernon 1974 & Vernon Supp. 1989).
FN:2 The operative word is "could" regardless of whether the State actually does so.
File Date[01-02-89]
File Name[880641F]