1. May a court of appeals, through unassigned error, raise an issue that an Appellant would be precluded from raising on appeal?
2. Did the information filed in conjunction with Appellant's waiver of indictment permit a conviction for the felony offense to which Appellant pled and stipulated his guilt when the information facially alleged a misdemeanor?
3. Should error be assigned and briefing ordered before a court of appeals may reverse a conviction based on error not raised by the parties, even when a novel constitutional issue is not involved?
Alvin Garza plead guilty to attempted aggravated assault in felony court in exchange for probation. He was revoked. The court of appeal reversed because the face of a the charging instrument (an information) only alleged that Garza was guilty of attempting to cause bodily injury rather than attempting to cause serious bodily injury. However, the stipulations and waivers included with the plea include allegations that Garza attempted to cause serious bodily injury. So, because the information only authorized a conviction for a misdemeanor, Garza's sentence was greater than allowed, and the court of appeals remanded for further proceedings such as considering whether the trial court even had jurisdiction over the misdemeanor.
Here's the court of appeals case info.
[In Kirkpatrick v. State, the CCA has already held that jurisdiction was invoked by the State filing something in felony court, so long as what was filed put the defense on notice of an intent to file the felony. Here's my summary. True, this was an information, not an indictment, but I'm sure there are other things in the record (like the stipulation) that indicates the defendant was on notice that the State intended to charge a felony. Also, the Court noted in Kirkpatrick that the defendant needs to object to those flaws to waive them. I suspect the Court is fixing up an estoppel burger, with some of that language from Trejo on the side, but we'll have to wait and see.]
