Ex Parte Adams , 1985 Tex. Crim. App. LEXIS 1745 ( 1985 )

OPINION

McCORMICK, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted in Cause No. 278, 992 in the 228th District Court of Harris County on September 29, 1978, for the offense of burglary of a habitation with the intent to commit theft. Punishment, enhanced by two prior felony convictions, was assessed at life.

Applicant contends that the indictment in one of the convictions used for enhancement was fundamentally defective. The State agrees but argues that since appellant did not object at trial to the introduction of the infirm prior conviction, no error is preserved and the applicant is barred from collaterally attacking the primary conviction. Secondly, the State argues that even if error was preserved and we find relief should be granted, since the trial court assessed punishment, the proper remedy is not to set aside the conviction, but to remand for a new punishment hearing only.

We will first address the State’s contention regarding the preservation of error. At issue is Cause No. 222,902, a conviction for theft arising out of the 174th District Court of Harris County. The indictment in that cause failed to include the allegation that the property was taken without the owner’s effective consent. On October 12, 1983, this Court, in a per curiam opinion, granted habeas corpus relief in Cause No. 222,902, after finding the indictment fundamentally defective for failure to include the above-mentioned allegation. Ex parte Adams, 658 S.W.2d 179 (Tex.Cr.App.1983).

In Ex parte White, 659 S.W.2d 434 (Tex.Cr.App.1983), we reaffirmed our prior holdings in Ex parte Nivens, 619 S.W.2d 184 (Tex.Cr.App.1981), and Ex parte Howeth, 609 S.W.2d 540 (Tex.Cr.App.1980), and found that even though White did not voice an objection to the use of the allegedly infirm prior conviction, where the prior conviction was based upon a void indictment, the enhanced primary conviction could be collaterally attacked. The instant case falls within these holdings and we reject the State’s argument that no error was preserved.

We do agree with the State’s second argument that the proper remedy in the instant situation is to remand the case for a new assessment of punishment. In Hill v. State, 528 S.W.2d 125, 127 (Tex.Cr.App.1975), this Court held that a reversal and remand only as to the punishment phase is proper when the trial court has assessed an improper punishment. We adhere to that rule today. Ex parte Brown, 575 S.W.2d 517 (Tex.Cr.App.1979); Ex parte Hunter, 616 S.W.2d 626 (Tex.Cr.App.1981).

As a second ground for relief, applicant argues that he received ineffective assistance of counsel in that his trial counsel failed adequately to investigate the pri- or convictions used for enhancement. Even if trial counsel were ineffective in his investigation, we believe our holding above remanding the case for a new punishment hearing adequately remedies any such error.

Applicant also argues that trial counsel was ineffective in that he “advised the Applicant to elect the court to assess his punishment because the judge knew about his prior convictions and would probably assess a lighter sentence.” The decision as to who assesses the punishment in any criminal case is usually a matter of trial strategy. Appellant has not alleged any facts to show in what manner he was harmed by the fact that he was sentenced by the judge rather than by a jury. We find that applicant has failed to allege sufficient facts which would show, based on the totality of representation, that counsel was ineffective.

Applicant is remanded to the trial court for a new punishment hearing in Cause No. 278,992. It is so ordered.