Opinion
No. 01-03-00500-CR
Opinion issued June 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 933187.
Panel consists of Chief Justice RADACK and Justices KEYES and BLAND.
MEMORANDUM OPINION
Appellant James Smith pled guilty to aggravated robbery without an agreed recommendation by the State as to punishment. The trial court found Smith guilty and assessed his punishment at eight years confinement. In one point of error, Smith contends that his indictment is fundamentally defective in that it fails to describe the property taken during the course of the robbery. The State responds that Smith waived his point of error by not objecting to the error in the trial court. We agree with the State. Even if the indictment contains an error, Smith cannot raise the error on appeal because he did not file a motion in the trial court, pointing out the defect. See Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2004); Tex.R.App.P. 33.1; Sanchez v. State, 120 S.W.3d 359, 367 (Tex.Crim.App. 2003) (any error in the charging instrument must be objected to in a timely and specific manner, and any unobjected-to error in the instrument is not "fundamental"). We therefore affirm.
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14(b). Smith contends that article 1.14(b) has been abrogated by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). In Apprendi, the United States Supreme Court held that the State must prove beyond a reasonable doubt any fact resulting in a penalty above the statutory maximum. Id. at 2354-66. As robbery is an offense against a person, the property taken in this case did not increase the statutory maximum and Apprendi thus does not compel the State to plead or prove such a fact. See id; Green v. State, 840 S.W.2d 394, 401 (Tex.Crim. App. 1992) (noting that robbery is in the nature of an assault).