                                  NO. 07-08-0036-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                               SEPTEMBER 8, 2010
                         ______________________________

                                 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
                        _______________________________

      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.

                                           Background

       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.”

       1
         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.

                                                  2
       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

publication).   If the answer to those questions is “yes,” then the district court had

jurisdiction over the cause, and the punishment levied was legal.

       Discussion

       The answer to both questions is “yes.”




                                              3
       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



                                              4
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.



                                                Brian Quinn
                                                Chief Justice


Hancock, J., concurs.



Do not publish.




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