Duplechin v. State , 686 S.W.2d 188 ( 1983 )

McKAY, Justice.

This is an appeal from a conviction for the offense of aggravated assault. Appellant was indicted for murder. The jury found that appellant had been twice before convicted of a felony, as alleged in the indictment, and the trial judge assessed his punishment at life imprisonment in the Texas Department of Corrections.

This court delivered an opinion on March 17, 1983, in which we affirmed the conviction. 654 S.W.2d 20. Appellant raised on appeal for the first time the question of whether or not the indictment for one of the felony convictions used to enhance the present conviction was void as fundamentally defective. We held that the indictment was not properly before us and ruled that nothing was presented for review. The indictment complained of was included in the transcript as an attachment to a writ of habeas corpus filed and denied without a hearing in the trial court after sentencing. The petition with its accompanying documents, i.e., the indictment complained of, was included in the transcript after the trial judge had approved the record. The order approving the record was on page 497 of the transcript and approved the preceding 496 pages as the true and correct record of the trial. The petition for habeas corpus was found on pp. 508-513. The District Clerk of Harris County included in his certificate that the preceding pages were a full and complete record of the proceedings. There was no further approval by the trial court of any additional instruments or record. This court held in its previous opinion that the indictment was not properly before us in that there was no objection to the indictment raised at trial, citing Hill v. State, 633 S.W.2d 520 (Tex. Crim.App.1981).

The Court of Criminal Appeals granted appellant’s petition for discretionary review, and on June 29, 1983, delivered an opinion remanding the cause to this court for reconsideration of appellant’s grounds of error. 652 S.W.2d 957. The opinion stated that we had erroneously relied on Hill. The opinion cited Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981), as holding that the absence of a trial objection to the use of a prior conviction, based on a fundamentally defective indictment does not preclude a subsequent attack upon a conviction that utilized the prior conviction for enhancement purposes. In Nivens, the subsequent attack was through an application for writ of habeas corpus.

The court in the opinion on appellant’s petition for discretionary review instructed us to do the very thing that the court said it should not have done in Hill, citing Smith v. State, 486 S.W.2d 374 (Tex.Crim. App.1972), that is, to go outside the appellate record of the trial court and consider a writ of habeas corpus. As previously discussed, the transcript of the trial did not include a copy of the indictment in the prior conviction. It was included in the transcript by the District Clerk. The application for a writ of habeas corpus was not before this court, but was addressed to a district court and denied, and was not part of the appeal. Under Tex.Code Crim.Proc. Ann. § 11.07 (Vernon 1983) we do not have jurisdiction of post-conviction writs of habe-as corpus. However, in this instance it appears the Court of Criminal Appeals has refused the very same writ of habeas corpus without written order on December 10, 1980.

Therefore, we now review the indictment. In pertinent part it reads:

... On or about the 21st day of September, A.D. 1971, in said County and State, was then and there a person who had previously been convicted of assault to murder with malice, a felony, to-wit, the said JOHN EARL DUPLICHIN was duly and legally convicted on the 21st day of March, A.D., 1968, in the 178th District Court of Harris County, Texas in cause No. 125,510 of said offense of assault to murder with malice, a felony, styled the State of Texas vs. JOHN EARL DUPLICHIN, upon an indictment then and there legally pending against him in said court and which said court had jurisdiction of said offense, and said conviction was a final conviction.

And after the judgment of conviction in said cause no. 125,510 had become final, the said JOHN EARL DUPLICHIN on or about the 21st day of September A.D. 1971, in said County and State, did then and there have in his possession, away from the premises upon which he then and there lived, a pistol capable of concealment on his person.

Appellant raises three grounds of error all contending the indictment is void as fundamentally defective because it fails to allege (1) the appellant had been previously convicted of a felony involving an act of violence; (2) that the appellant possessed a prohibited weapon; and (3) a culpable mental state.

The appellant, regarding the indictment of which he complains, was indicted under former art. 489c, Penal Code of Texas. This article was the forerunner of § 46.05 of the Penal Code. We will review appellant’s grounds of error in view of the law relating to art. 489c prior to the enactment of the present Penal Code. Art. 489c provided as follows:

Section 1. No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon, or a firearm having a barrel of less than 12 inches in length. “Prohibited weapon” means any weapon specified by Article 483, Penal Code of Texas, 1925, as amended.

Section 2. A person who violates any provision of this Act is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than two nor more than 10 years.

Article 483, Penal Code of Texas, 1925, as amended, provided in pertinent part:

“(a) Any person who shall carry on or about his person, saddle or in his saddlebags, or in his portfolio or purse any pistol.”

Appellant complains the indictment did not allege that he had been previously convicted of a felony “involving an act of violence.” We find the allegation that the appellant had previously been convicted of “assault to murder with malice” is sufficient by its terms to allege a previous conviction of a felony involving an act of violence. See Scott v. State, 571 S.W.2d 893 (Tex.Crim.App.1978).

Secondly, appellant contends the indictment failed to allege the appellant possessed a prohibited weapon as required by former 489c, Penal Code of Texas. A pistol is a prohibited weapon by definition under art. 483.

Lastly, appellant contends that the prior conviction is void because the indictment fails to allege a culpable mental state. Tew v. State, 551 S.W.2d 375 (Tex.Crim. App.1977), held that a culpable mental state was a necessary element of § 46.05, Penal Code, as viewed in connection with § 6.02(b) of the Penal Code. However, we do not find such a requirement for art. 489c, Penal Code of Texas. Appellant’s grounds of error are overruled.

Appellant has filed a pro se brief. We have reviewed the brief and find the grounds of error expressed therein to be without merit.

The judgment of the trial court is affirmed.