Opinion
No. 024-84.
January 30, 1985.
Appeal from 178th Judicial District Court, Harris County, Dan Walton, J.
Buddy Stevens, Angleton, Volly C. Bastine, Jr., Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Calvin Hartmann and Kenneth Levi, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON COURT'S MOTION FOR PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of aggravated assault. Punishment was mandatorily assessed at life. Appellant's conviction was originally affirmed by the Twelfth Court of Appeals in Tyler. The Court of Appeals refused to review appellant's grounds of error, holding that appellant had failed to preserve error. Duplechin v. State, 654 S.W.2d 20 (Tex.App. 1983). Appellant alleged that he was erroneously punished as a habitual criminal insofar as one of the convictions used for enhancement was premised on a fundamentally defective indictment. This Court granted appellant's petition for discretionary review and remanded this cause back to the Court of Appeals with orders to review appellant's assertions. Duplechin v. State, 652 S.W.2d 957 (Tex.Cr.App. 1983).
V.T.C.A. Penal Code, Sec. 12.42(d) prior to 1983 amendment.
The Court of Appeals on November 10, 1983 overruled appellant's grounds of error, finding that the indictment in his prior conviction was not fundamentally defective. Appellant filed a petition for discretionary review which was refused. This Court, however, granted a petition for discretionary review on its own motion to review the Court of Appeal's opinion.
We agree with the result reached by the Court of Appeals that appellant's conviction should be affirmed. Accordingly, we will dismiss the petition for discretionary review as improvidently granted.
The petition for discretionary review is dismissed and the judgment affirming appellant's conviction is affirmed.