Alvin Mike Garza v. The State of Texas--Appeal from 242nd District Court of Hale CountyAnnotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
SEPTEMBER 8, 2010
ALVIN MIKE GARZA,
THE STATE OF TEXAS,
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B16807-0605; HON. ED SELF, PRESIDING
Memorandum Opinion on Remand from the Court of Criminal Appeals
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
This appeal returns to us via the directive of the Texas Court of Criminal Appeals.
It vacated our prior decision and remanded the cause to enable us to consider the
impact, if any, of Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009) upon the
dispute. The dispute in question involved the trial court’s jurisdiction over the criminal
prosecution, the sufficiency of the evidence supporting the conviction and the purported
illegality of the punishment levied. We conclude that Kirkpatrick is indeed influential and
affirm the trial court’s judgment.
Appellant was charged with attempted aggravated assault and plead guilty in
exchange for a recommended sentence of ten years in prison probated for ten years.
Subsequently, the State filed a motion to revoke probation. A hearing was held and the
trial court found that appellant had violated his probation and sentenced appellant to ten
years in prison.
In reviewing the facts of the case, we note that the record contains a stipulation
of evidence signed by appellant.
Through it, he admitted that on “the 25th day of
February . . . 2006, . . . [he] did then and there: intentionally, knowingly, or recklessly
attempt to cause serious bodily injury to Norma Marmolego, by striking . . . [her] in the
face with a closed fist.”1 (Emphasis added).
Furthermore, a document entitled the
“Presentment of Complaint and Information” included in the appellate record described
the offense for which appellant was charged as “Attempt to Commit Agg Assault
W/Deadly Weapon, a Felony.”
In conjunction with waiving his right to a jury trial,
appellant also signed a document entitled “Admonition of Rights.” Through it, he waived
“service of indictment,” acknowledged that the range of punishment for the offense of
“attempt to commit aggravated assault with a deadly weapon” was “2 to 10 YEARS
[with] AN OPTIONAL FINE NOT TO EXCEED $10,000 . . . ,” and represented that he
was entering a guilty plea “because I am guilty of the offense of Attempt[ing] to Commit
AGG ASSAULT W/DEADLY WEAPON, and for no other reason.”
While most all of the statement appears to have been printed or typed, the word “serious” was
included after the fact via handwriting. Moreover, several sets of initials appear next to the word.
Another instrument appearing of record is appellant’s written “. . . Waiver of
Rights to Indictment by a Grand Jury.” It too describes the offense for which he was
being prosecuted as the attempt to commit aggravated assault with a deadly weapon,
and through the same instrument he agreed to “be charged . . . by a written information
. . . .” That the “offense with which [he was] charged [was] a non-capital felony” was
also mentioned in the writing.
We allude to the foregoing circumstances because the information filed by the
State averred that appellant had “intentionally, knowingly, or recklessly attempt[ed] to
cause bodily injury . . . by striking . . . [the victim] in the face with a closed fist.” Given
the absence from the information of the word “serious” before the phrase “bodily injury”
as well as any allusion to appellant’s purported use or exhibition of a deadly weapon,
the actual charge it described was nothing more than a misdemeanor. And, therein lies
the problem since appellant was convicted of and punished for committing a felony.
So, what the Court of Criminal Appeals has effectively done by reversing our
prior decision and directing us to consider the circumstances through its opinion in
Kirkpatrick is to require us to determine if the State really intended to charge appellant
with a felony and if appellant had notice of that. Garza v. State, No.PD-1761-08, 2010,
Tex. Crim. App. LEXIS 93 (Tex. Crim. App. February 10, 2010) (not designated for
If the answer to those questions is “yes,” then the district court had
jurisdiction over the cause, and the punishment levied was legal.
The answer to both questions is “yes.”
The circumstances in Kirkpatrick were similar to those before us. The trial court
had convicted Kirkpatrick of a felony while the State simply charged him with a
misdemeanor via the “indictment.” As noted by the Court of Criminal Appeals, omitted
from the “indictment” was “an element necessary to charge a felony.” Kirkpatrick v.
State, 279 S.W.3d at 328-29. Nonetheless, the Court concluded that the State had
intended to charge appellant with a felony and he had notice of that. Id. at 329. And, it
reached that conclusion because 1) the felony offense existed, 2) the indictment was
returned to a “felony court,” 3) the indictment described the crime as a “. . . 3rd Degree
Felony . . . ,” 4) the section of the Penal Code implicated by appellant’s conduct was
stated in the indictment, and 5) that Code section “was easily ascertainable.” Id. So,
since appellant knew the State intended to charge him with a felony, the district court
had subject-matter jurisdiction over the proceeding, and appellant was obligated to
voice any complaint about the sufficiency of the charging instrument before the date of
trial. Id. Simply put, we are told from Kirkpatrick that if the circumstances illustrate that
the State intended to charge the accused with a felony and the appellant had notice of
that, then the offense charged is actually a felony. And, it is this test that we apply here.
While the charging instrument before us described a misdemeanor, appellant
executed documents alluding to the offense as a “felony,” acknowledging that he was
charged with “a non-capital felony,” and stipulating to factual circumstances constituting
the felony offense of attempting to commit aggravated assault. Thus, we cannot but
conclude that the State intended to charge him with a felony and he knew it. This in
turn means that the charge brought against appellant was a felony, the district court had
jurisdiction over the criminal prosecution, the sentence it levied (that applicable to the
felony in question) was legal, any complaints regarding the sufficiency of the information
could not be considered via an appeal from the decision to revoke probation, and the
evidence was more than sufficient to support the conviction.
We overrule the issues and affirm the judgment.
Hancock, J., concurs.
Do not publish.