Opinion
No. 05-07-00484-CR
Opinion issued March 19, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-87346-N.
Before Chief Justice THOMAS and Justices WRIGHT and FRANCIS.
MEMORANDUM OPINION
Patrice Wallace waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a flower pot. The trial court assessed punishment at two years' imprisonment. In two points of error Wallace contends (i) her guilty plea was not voluntary because the indictment was fundamentally flawed and (ii) the evidence is legally insufficient to support her conviction. We affirm the trial court's judgment. During a dispute with her father, Perry Forshee, Wallace hit Forshee in the head with a flower pot. Forshee required stitches to his head to close the wound. Wallace was charged by indictment with intentionally, knowingly, and recklessly causing bodily injury to Forshee by striking him with a flower pot, and using or exhibiting a deadly weapon-a flower pot-during the assault. The indictment further charged that Wallace had a dating relationship with Forshee, and was related to and lived in the same household with Forshee. Wallace entered an open plea of guilty to the charges in the indictment. Wallace filed a judicial confession in the trial court in which she admitted to the offense as charged, including being in a dating relationship with and being related to and living in the same household with Forshee. The trial court rendered its judgment, convicting Wallace of the second-degree felony of aggravated assault and sentenced Wallace to two years' imprisonment. Wallace contends the indictment is fundamentally flawed because it alleges Wallace was in a dating relationship with Forshee and Wallace and Forshee lived in the same household. Wallace contends that as a result her guilty plea is involuntary. Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(f), (h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996) (interpreting former rule 74); Aldrich v. State, 928 S.W.2d 558, 560 (Tex.Crim.App. 1996) (interpreting former rule 74). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex.Crim.App. 2003). Wallace failed to provide analysis of the record to support her argument. She did not provide authorities to support her arguments. She did not explain why the testimony allegedly fails to establish second-degree aggravated assault, nor did she discuss why the record does not support her guilty plea. Because Wallace failed to adequately brief her first issue as mandated by the appellate rules, we conclude she waived this complaint. Furthermore, even if Wallace had properly argued her position, we would still overrule her first point of error. If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial commences, she waives the defect on appeal. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Studer v. State, 799 S.W.2d 263, 265-66 (Tex.Crim.App. 1990). Wallace failed to present a motion to quash the indictment to the trial court before the date of trial. Under these circumstances, we conclude Wallace failed to timely object to any defects in the indictment. Because Wallace failed to timely object to any alleged defects in the indictment, the error is waived. See Tex. R. App. P. 33.1. Accordingly, we overrule Wallace's first point of error. In her second point of error, Wallace contends the evidence is legally insufficient to support her conviction, because the State did not prove Wallace and Forshee had a dating relationship and Forshee was a member of the family and household as alleged in the indictment. In a guilty plea, where the defendant has waived her right to a jury trial, the State must "introduce evidence into the record showing the guilt of the defendant." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); see also Young v. State, 8 S.W.3d 656, 660-61 (Tex.Crim.App. 2000); McGill v. State, 200 S.W.3d 325, 330 (Tex.App.-Dallas 2006, no pet.). A person commits the second-degree felony offense of aggravated assault if the person intentionally, knowingly, or recklessly causes bodily injury to another and uses a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2007). An aggravated assault is a second-degree felony, except that it is a first-degree felony when, among other things, the actor uses a deadly weapon during the assault and causes serious bodily injury to a person whose relationship to or association with the actor is described in family code sections 71.0021(b) (dating relationship), 71.003 (family), or 71.005 (living in the same dwelling). See Tex. Pen. Code Ann. § 22.02(b)(1) (Vernon Supp. 2007); Tex. Fam. Code Ann. §§ 71.0021(b), 71.003, 71.005 (Vernon 2002). The record reflects that Wallace entered a guilty plea and judicially confessed to the second-degree felony offense of aggravated assault. Although the language of the indictment in this case contained elements that would allow the State to prosecute Wallace for the first-degree felony offense of aggravated assault of a family member, clearly she was allowed to plead guilty to the included offense of aggravated assault. See Lord v. State, 63 S.W.3d 87, 92 (Tex.App.-Corpus Christi 2001, no pet.) (oral confession made it clear he was pleading guilty to lesser included offense). The record does not show Wallace did not know what offense the State was claiming she committed, nor indicate she was unaware of the offense to which she pled guilty. The record contains Forshee's and Wallace's testimony that Wallace hit her father on the head with the flower pot and her father was then taken to the hospital for treatment. Here the supporting evidence embraces every essential element of the offense of aggravated assault. See Lord, 63 S.W.3d at 92 (judicial confession is sufficient evidence to support the trial court's judgment and satisfy criminal code article 1.15). We conclude the evidence is legally sufficient to support the conviction of the second-degree felony of aggravated assault. Therefore, we overrule appellant's second point of error. We affirm the trial court's judgment.