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Aiken v. State4/23/1999
ions fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 686-87. Therefore, we overrule appellant's first and second points of error.
In his third, fourth, and sixth points of error, appellant contends the indictment fails to charge him with felony DWI and, therefore, is fundamentally defective. Appellant complains the indictment is fundamentally defective because (1) the second and third paragraphs alleging prior DWI convictions recite that appellant was convicted of offenses related to "driving while intoxicated" instead of "the operating of a motor vehicle while intoxicated," and (2) the third paragraph alleges a prior DWI conviction styled The State of Texas v. Sean Xavier Aiken in the "Atlanta City Traffic Court of Atlanta, Georgia." We disagree.
A written instrument constitutes an indictment or information if it accuses a party of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrument is otherwise defective. Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). Presentation of an indictment, albeit defective, to the trial court by an attorney for the State vests the trial court with jurisdiction over the cause. See Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990). Absent error that would deprive the trial court of jurisdiction, a defendant must object before the date of trial to a defect, error, or irregularity in an indictment's form or substance. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1999); Studer, 799 S.W.2d at 273.
The State indicted appellant for DWI and alleged he had been twice before convicted of DWI. See Tex. Penal Code Ann. ยง 49.09(b) (Vernon Supp. 1999). An indictment sufficiently alleges a prior DWI conviction as an element of a felony DWI offense if it includes the court in which the conviction was obtained, the time of the conviction, and the nature of the offense. See Freeman v. State, 733 S.W.2d 662, 663-64 (Tex. App._Dallas 1987, pet. ref'd). That the indictment does not exactly track the language of the statue does not render it defective. See King v. State, 675 S.W.2d 514, 516-17 (Tex. Crim. App. 1984); see also Freeman, 733 S.W.2d at 663-64. Here, the indictment alleges two prior final DWI convictions, including the date, the court, and the case number of each conviction, as well as the nature of each offense. We conclude the indictment is sufficient to give appellant notice of the offense charged. Consequently, the trial court had jurisdiction over the cause. See Duron, 956 S.W.2d at 550; Studer, 799 S.W.2d at 273. To complain on appeal, appellant was required to first present his objections to the trial Judge. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1999); Studer, 799 S.W.2d at 273. Appellant did not object to the indictment in the trial court; therefore, we conclude he has not preserved his complaints for our review. We overrule appellant's third, fourth, and sixth points of error.
Each of appellant's remaining points of error rely on his contention the indictment was fundamentally defective and charged him with a class A misdemeanor instead of a felony. In his seventh point of error, appellant contends that because the indictment failed to charge him with a felony, the trial court erred in assessing punishment within the applicable range of punishment for a felony. In his eighth point of error, appellant contends his guilty plea was involuntary because trial counsel did not admonish him of the appropriate misdemeanor range of punishment. Because we have already concluded the indictment provided sufficient notice that the State was charging appellant with felony DWI, we reje
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