                                   NO. 07-08-0036-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                NOVEMBER 12, 2008
                          ______________________________

                                  ALVIN MIKE GARZA,

                                                        Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                 Appellee
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                    NO. B16807-0605; HON. ED SELF, PRESIDING
                        _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Alvin Mike Garza (appellant) appeals his conviction for attempted aggravated

assault.   However, he does so after pleading guilty, being sentenced to ten years

imprisonment, having that sentenced suspended, being placed on probation, and having

his probation revoked. Through two issues, he asserts that he should be freed because

there is no evidence illustrating that he committed aggravated assault. That is, the State

purportedly failed to present evidence establishing either factor elevating an assault to an
aggravated assault. This omission purportedly rendered the crime for which he was

prosecuted to be nothing more than a misdemeanor, and it being a misdemeanor, the

district court could not convict him for committing a felony. We overrule that issue but

nonetheless reverse the judgment.

        We note that the record contains a stipulation of evidence signed by appellant. In

it, he stated that on “ the 25th day of February . . . 2006, . . . [he] did then and there:

intentionally, knowingly, or recklessly attempt[ed] to cause serious bodily injury to Norma

Marmolego, by striking . . . [her] in the face with a closed fist.”1 (Emphasis added). We

also note that aggravated assault consists of an assault 1) which causes serious bodily

injury to another or 2) during which the assailant used or exhibited a deadly weapon. TEX .

PENAL CODE ANN . §§ 22.01-.02 (Vernon Supp. 2008). In comparing our two notations

above with each other, we discover the language in the signed admission contained the

aggravating factors needed to prove aggravated assault. See Landon v. State, 222

S.W.3d 75, 78 (Tex. App.–Tyler 2006, no pet.) (stating that while the State must offer

evidence establishing the elements of the crime despite the accused’s plea of guilty, that

requirement is satisfied by the accused signing a stipulation of evidence wherein he admits

the elements of the crime to which he pled). This, then, causes us to reject the issues

raised by appellant. Yet, that does not mean we are finished with this matter.

        A problem with the judgment remains. It encompasses the crime for which appellant

was convicted and received punishment.                 That is, the State charged appellant by

information as opposed to indictment, and appellant waived his right to prosecution via


        1
         W hile m ost all of the statem ent 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.

                                                   2
indictment. Through the waiver, he agreed to “be tried for the said offense upon an

Information and complaint to be filed and presented by the District Attorney.” A complaint

and information were then filed. In both those documents, the State described the charge

for which appellant was being prosecuted as his having “. . . intentionally, knowingly, or

recklessly attempt[ed] to cause bodily injury to Norma Marmolego, by striking the said

Norma Marmelejo in the face with a closed fist.” Absent from the allegation, however, was

a word included in the aforementioned stipulation of evidence, and that word was “serious.”

This is of import for without that word, the factors needed to aver aggravated assault were

missing from the particular charging instrument under which appellant agreed to be tried.

And, while it may be that the parties intended to modify the charging instrument in a

manner consistent with the stipulation of evidence, they did not make the necessary

interlineations on the existing information or include a document showing the change in the

record. See Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000) (stating that an

amendment is effectuated by physically altering the instrument or by incorporating a new

charging instrument in the record).

       Next, statute provides that one who intentionally, knowingly, or recklessly causes

another to suffer bodily injury commits simple assault under §22.01(a)(1) of the Texas

Penal Code, as opposed to aggravated assault. Given this, the charging instrument

contained in the record encompasses nothing more than simple assault. Yet, the trial court

convicted him of aggravated assault. Additionally, assault under §22.01(a)(1) is a class

A misdemeanor, unlike aggravated assault, which is a felony. TEX . PENAL CODE ANN .




                                            3
§22.01(b) (Vernon Supp 2008).2 This, in turn, means that appellant’s punishment for

committing the offense charged in the information was restricted to no more than a year

in jail, a fine not exceeding $4000, or both. TEX . PENAL CODE ANN . §12.21(1), (2) & (3)

(describing the punishment attributable to a class A misdemeanor). Yet, a ten year term

of imprisonment was levied upon appellant.

        So, what we have before us is a scenario wherein the trial court convicted appellant

for a crime other, and much greater, than that contained in the charging instrument and

levied a sentence exceeding the maximum applicable to the crime encompassed by the

actual charging instrument. Neither is permissible.

        Accordingly, we reverse the judgment convicting appellant of attempted aggravated

assault and remand the cause for further proceedings, which includes the determination

of whether the trial court had jurisdiction over the misdemeanor offense.



                                                            Brian Quinn
                                                            Chief Justice
Publish.




        2
          Though assault under §22.01(a)(1) can be elevated to a felony, the statutory conditions so elevating
the crim e are not present within the charging instrum ent of record. See T EX . P EN AL C OD E A N N . §22.01(b)
(Vernon Supp. 2008) (describing the conditions which m ust exist).

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