Duplechin v. State
| Decision Date | 29 June 1983 |
| Docket Number | No. 378-83,378-83 |
| Citation | 652 S.W.2d 957 |
| Parties | John Earl DUPLECHIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Buddy Stevens, Angleton, for appellant.
John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Kenneth Levi, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appeal is taken from a conviction for aggravated assault. After finding Appellant guilty, the jury further found that he had twice previously been convicted of felony offenses. Punishment was assessed at life.
In his petition for discretionary review, Appellant presents three grounds of error in which he maintains that one of the prior convictions alleged and used for enhancement purposes is based upon a fundamentally defective indictment. The court of appeals found that nothing was presented for review due to Appellant's failure to raise such contention at trial. Duplechin v. State, 654 S.W.2d 20 (Tex.App.--Tyler, 1983).
In finding that nothing was presented for review, the Court of Appeals cited this Court's opinion in Hill v. State, 633 S.W.2d 520 (Tex.Cr.App.1982). In Hill, the defendant urged that a prior conviction used for enhancement purposes was invalid because he was without counsel at the time of the conviction. It was held that the failure to object at trial to the introduction of proof of an allegedly infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized a prior conviction. However, in Hill, it was specifically noted that the defendant was not contending that his prior conviction, used for enhancement purposes, was based upon a void charging instrument. In Ex parte Nivens, 619 S.W.2d 184 (Tex.Cr.App.1981), this Court held that the absence of an objection to the use of a prior conviction, based upon a fundamentally defective indictment does not serve so as to preclude a subsequent attack upon a conviction that utilized the prior conviction for enhancement purposes.
Therefore, we find that the Court of Appeals' reliance upon this Court's opinion in Hill v. State, supra, is misplaced. Despite the absence of an objection at trial, Appellant may challenge, for the first time on appeal, the validity of the indictment underlying one of the prior convictions used for enhancement purposes. Ex parte Nivens, supra....
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