Opinion
No. 05-04-00897-CR
Opinion Filed June 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F97-53114-UN. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
Steve Norris Anderson appeals his conviction for aggravated robbery. In one issue, he contends his indictment was defective because it failed to allege the offense of aggravated robbery. We affirm. In 1997, an indictment against appellant alleged that appellant:
on or about the 30th day of August A.D. 1997 in the County of Dallas [Texas], did unlawfully then and there while in the course of committing theft and with intent to obtain and maintain control of the property of LIDIO ROJOS, hereinafter called complainant, the said property being a pickup truck and current money of the United States of America, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there knowingly and intentionally cause serious bodily injury to the said complainant, by striking said complainant with his hand.In 1998, appellant pled guilty to the indictment pursuant to a plea agreement. As part of his plea, appellant waived, inter alia, (1) his right to be tried upon an indictment returned by a grand jury and (2) "any and all defects, errors, or irregularities, whether of form or substance, in the charging instrument." The trial court placed him on deferred adjudication probation for ten years. In 2004, appellant's probation was revoked. The trial court convicted him of aggravated robbery and sentenced him to twenty-five years' imprisonment. In one issue, appellant contends that the indictment was defective because it does not allege the offense of aggravated robbery and that it is a "nullity, overreaching, and incapable of proof." We disagree. A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 29.02 (Vernon 2003). Two ways in which a person may commit aggravated robbery are by committing robbery and (1) causing serious bodily injury to another or (2) using or exhibiting a deadly weapon. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Appellant claims that because a hand could only cause serious bodily injury if used as a deadly weapon, the indictment was defective in failing to allege the hand was a deadly weapon. Texas Code of Criminal Procedure article 1.14(b) provides that if a defendant does not make a pretrial objection to a defect, error, or irregularity of form or substance in an indictment, he waives his right to object and may not raise the objection on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). However, a defendant's failure to object as required by article 1.14(b) does not waive his right to challenge a fundamentally defective indictment. Ex parte Patterson, 969 S.W.2d 16, 19 (Tex.Crim.App. 1998). A flawed indictment which purports to charge an offense is not fundamentally defective, and in the absence of a pretrial objection, will support a conviction. Tex. Code Crim. Proc. Ann. art. 1.14(b); Ex parte Patterson, 969 S.W.2d at 19. Appellant did not file a motion to quash or make any other pretrial objection to the indictment. Furthermore, as a part of his plea, he waived any and all defects, errors, or irregularities, whether of form or substance, in the indictment. As a result, we need only consider whether the indictment was fundamentally defective. See Ex parte Patterson, 969 S.W.2d at 19. The indictment here clearly alleged the offense of aggravated robbery. Although it did not allege that appellant used or exhibited a deadly weapon, it did allege that he caused serious bodily injury to the complainant. Because aggravated robbery may be committed either by using or exhibiting a deadly weapon or by causing serious bodily injury to another, the indictment need not allege both. We conclude that the indictment was not fundamentally defective. Therefore, we overrule appellant's sole issue.