JOSHUA COBBS APPELLANT v. THE STATE OF TEXAS APPELLEE (2011)

ORDER FOR REBRIEFING

On September 20, 2010, an indictment was returned in Cause No.2010–428,785, charging Appellant, Joshua Cobbs, with the felony offense of aggravated assault pursuant to § 22.02(a)(1) (assault causing serious bodily injury to another) and § 22.02(a)(2) (assault involving the use or exhibition of a deadly weapon) of the Texas Penal Code.¹ The indictment also alleged two prior felony convictions for purposes of enhancement pursuant to § 12.42. On April 19, 2011, the trial court entered a judgment finding Appellant guilty of “Aggravated Assault Domestic Violence–Deadly Weapon and Serious Bodily Injury,” a double-enhanced first degree felony, pursuant to § 22.02(b)(1).   An element of the offense of aggravated assault domestic violence is that the victim of the offense be “a person whose relationship to or association with the defendant is described by § 71.0021(b), 71.003, or 71.005, of the Texas Family Code․”  See Tex. Penal Code Ann. § 22.02(b)(1) (West 2011).   Because that element of the offense was not pleaded in Appellant's indictment, did the trial court err by finding Appellant guilty of an uncharged offense?   Because this issue is of paramount interest to this Court, and because Appellant has not briefed this issue, we direct Appellant to brief this issue within 30 days of the date of this order.   See Bigon v. State, 252 S.W.3d 360, 368–69 (Tex.Crim.App.2008).   The State shall have 30 days after the date Appellant's Supplemental Brief is filed within which to file a reply brief.

Do not publish.

FOOTNOTES

FN1. Unless otherwise noted, all future references to “ § _” are references to the Tex. Penal Code Ann. (West 2011)..  FN1. Unless otherwise noted, all future references to “ § _” are references to the Tex. Penal Code Ann. (West 2011).

Per Curiam