By separate indictments returned on December 16, 1982, Melvin Henry Burnworth and Donna R. Burnworth, husband and wife, were charged with the offense of aggravated robbery alleged to have been committed on October 31, 1982. Both pleaded guilty to a jury in a consolidated trial. The jury assessed Melvin’s punishment at seven years’ confinement, and assessed Donna’s punishment at five years’ confinement.
In this appeal each is represented by different counsel, although at trial Melvin’s employed counsel represented Donna by court appointment. The parties raise three common grounds of error contending that the trial court erred (1) in incorrectly admonishing each that he was ineligible for probation at the hands of the jury, (2) in failing to afford the jury an opportunity to grant each party probation by an appropriate charge on the law of probation, and (3) in receiving each party’s plea of guilty because of ineffective assistance of counsel resulting from a conflict of interest. Additionally, Donna contends that the indictment attempting to charge the offense of aggravated robbery against her is fundamentally defective. We will reverse and remand each case for a new trial.
We first address Donna’s third ground whereby she claims the indictment returned against her was fatally defective. That indictment, omitting the formal parts, reads:
While acting as a party together with Melvin Harvey Burnworth, while the said Melvin Harvey Burnworth did in the course of committing theft, knowingly and intentionally place Wendy Hooker in fear of imminent bodily injury by exhibiting a deadly weapon, namely, a knife, with the intent to obtain control of money of the United States, the property of Wendy Hooker, without her effective consent and with the intent to deprive her of her property.
Section 7.01(a) and (b), Tex. Penal Code Ann. (Vernon (1974), 1 in part, provides:
A person is criminally responsible as a party to an offense if the offense is committed ... by the conduct of another for which he is criminally responsible. ...
(b) Each party to an offense may be charged with the commission of the offense. (Emphasis ours.)
The basic test of complicity of one in the commission of a crime by another is found in Section 7.02(a)(2) which reads:
(a) Person is criminally responsible for an offense committed by the conduct of another if:
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or at *688 tempts to aid the other person to commit the offense; ....
A person who is criminally responsible as a party for the conduct of another under 7.01(a) and (b) and 7.02(a) may be indicted directly for the offense without alleging the facts making him responsible as a party to the offense committed by another.
Pitts v. State,
The State chose not to charge Donna directly with the commission of the offense, but elected to allege her criminal responsibility as a party to the offense committed by Melvin. By choosing this complex means of charging Donna as a party, the State was bound to allege the facts which gave rise to her criminal responsibility under Section 7.02(a) for the offense committed by her husband, Melvin, and its failure to do so renders the indictment fundamentally defective. The indictment fails to allege that any offense was committed by Donna; thus, her conviction based thereon is void. Article 27.08(1), Vernon’s Ann.C.C.P.;
American Plant Food Corp. v. State,
We turn now to the common grounds of error urged by the parties, but before deciding the merits of these grounds, we deem it necessary to further discuss the facts and events shown by this record. The trial judge at trial was aware of the decision in
Rivas v. State,
Following the presentation of the evidence, defense counsel, in the courtroom, based on a brief study of the charge (apparently during a five-minute recess) and while the jury was retired from the courtroom, volunteered that “he [had] reviewed the charge ... and [has] no objections to it.” The charge did not contain an instruction on the law of probation nor provide verdict forms for the jury to recommend probation. As earlier noted, the trial judge had decided at the time of the reception of the guilty pleas that neither Donna nor Melvin could receive probation from the jury because of the San Antonio Court of Appeals’ decision construing art. 42.-123f(a)(1)(E)
4
in
Rivas v. State, supra.
This holding
5
in
Rivas
was subsequently disapproved by the Court of Criminal Appeals in its decision, on discretionary review, affirming
May v. State,
The Court of Criminal Appeals has on several occasions stated that a defendant’s right to probation is valuable, and that when the record supports an application for probation, such issue should be submitted to the jury.
Trevino v. State,
Next, we consider the Burnworths’ common ground of error no. 1 whereby each claims that the trial court failed to admonish them in accordance with the mandatory provisions of art. 26.13(a)(1) because it did not advise them that they were eligible for probation from the jury. The record shows that, except for the erroneous admonition to the Burnworths that they were not eligible for probation from the jury, the trial judge carefully admonished them on the range of punishment applicable to the offense and carefully questioned them regarding their mental capacities and the voluntary character of their pleas of guilty. As we read art. 26.13(c), such admonitions were in substantial compliance with the provisions of art. 26.13(a)(1) and (b) because Donna and Melvin, after hearing the advice and admonitions from the court, pleaded guilty even after the court advised them that upon conviction neither was entitled to probation. Under such circumstances, even given the erroneous nature of the advice, the Burnworths have not demonstrated affirmatively that they were unaware of the consequences of their pleas or that they were misled or harmed by the court’s admonition. Assuming, without deciding, that the trial court was required under art. 26.13(a)(1) to correctly advise them of their eligibility to probation at the hands of the jury, its failure to do so did not prompt them to plead guilty. Therefore, we overrule the Burnworths’ common ground of error no. 1.
Finally, we turn to the last common ground of error (Melvin’s ground 3 and Donna’s ground 4). Under this ground each argues that the trial court should not have accepted his plea because of ineffective assistance of counsel resulting from the joint representation of them by a single *690 trial counsel where a conflict of interest existed. Although the ground is narrowly stated, we understand from the statements, arguments and authorities cited in the briefs, as well as the oral arguments made by counsel on appeal, that the Burnworths contend that defense counsel rendered ineffective assistance to them throughout the trial. From our analysis of this record, we are persuaded that these grounds must be sustained.
Both Donna and Melvin gave detailed confessions of their conduct in committing the offense. It is obvious that the strategy of their trial counsel was to plead them guilty before a jury and seek probation. Trial counsel advised the Burnworths before trial that they were eligible for probation. He timely filed the respective sworn applications for probation; he qualified the jury panel on the law of probation; and proved by Burnworths’ testimony their eligibility for probation. However, he failed to object to the charge on the ground that it contained no instructions on the law of probation or provided the jury an opportunity to recommend probation for his clients. It was this failure that deprived both Melvin and Donna of reasonably effective assistance of counsel. The State ably argues that trial counsel made a decision not to object to the court’s charge or request that the probation issue be submitted as a part of his overall trial strategy to press for a low range punishment. The State further asserts that this ground of error should be overruled since the facts of this case bring it within the purview of
Mercado v. State,
Judging counsel on the totality of the circumstances, including the case law as it existed at the time of trial, the fact that the offense was committed by the Burnworths in an ill-advised, if desperate, attempt to secure funds for lodging and food for them and their children, we conclude that counsel did not provide Donna and Melvin with reasonably effective assistance because he failed to either request the charge on probation or to object to the charge on the ground that it did not contain the charge on probation. May v. State, 113-84 (Tex.Cr.App. December 5, 1984) (not yet reported). Melvin’s ground 3 and Donna’s ground 4 are sustained.
The judgment in each case is reversed and each cause remanded for a new trial.
Notes
. All references to sections are to Tex. Penal Code Ann.
. On motion for new trial Judge Khoury indicated his familiarity with
Rivas,
and we also assume that he was aware of the decision in
Arcos v. State,
. Reported in less than one and one-half pages.
. Acts 1977, 65th Leg. ch. 347, Section 2, 1977 Tex.Gen. Laws 925, 926. Abie: ((E) was relet-tered (D) by 1983 Amendment). See 1985 Vernon Supp.
. That a jury had no authority to grant (recommend) probation in an aggravated robbery case.