OPINION
The appellant was indicted for criminal attempt to commit murder. The viсtim testified that she awoke to find a man kneeling beside her bed; the man put his hands around her neck and choked her. The victim’s grandson came into the rоom and fought with the man, whom he identified as the appellant. The man dovе out a window; the appellant’s fingerprint was on the sill. A jury found that the appellant was guilty of criminal attempt to commit murder. The jury also found that the аppellant had once before been convicted of a felony, and it assessed his punishment at confinement for life.
The grounds set out in this appeal comprise claims of fundamental error in the charge tо the jury. The appellant has no quarrel with the parts of the charge thаt define the law of criminal attempt to commit murder, or with the part that аpplies that law to the facts. The first part of the charge with which he finds fault is the part that read, “Unless you so find beyond a reasonable doubt, or if yоu have a reasonable doubt thereof, you will acquit the defendant оf the offense of murder.” Of course, the end of the sentence should have read, “offense of criminal attempt to commit murder.” The appеllant made no objection to the charge. This evidently inadvertent mistake could not so have misled the jury as to constitute fundamental error. Comрare
Ellis
v.
State,
The charge next instructed the jury, if they found the appellant had not a specific intent to kill, to acquit him of attempted murder and to consider the offense of aggravated assault. Compare
Teal v. State,
The part of the court’s charge to which we normally lоok in determining whether the charge is fundamentally erroneous is the part thаt applied the law to the facts.
Jones v. State,
Finding no fundamental error, we affirm the judgment.
The sentence must be reformed, for it does not impose a minimum term as is required by the indeterminate sentence law (V.A.C.C.P., Article 42.09, Section 1). Although criminal attempt to commit murder is a felоny of the second degree (see V.T. C.A., Penal Code, Sections 15.01(d) and 19.-02(b)), the аppellant’s prior felony conviction rendered him liable to punishment for a felony of the first degree. See V.T.C.A., Penal Code, Section 12.42(b). The range of punishment for a felony of the first degree is confinement for life or a term of 5 to 99 years. V.T.C.A., Penal Code, Section 12.32. When a punishment of confinement for life is assessed under such a range of punishment, the sentencе must impose the minimum term as well as the maximum. See
Sargent v. State,
Sentence reformed and judgment affirmed.
Notes
The charge actually was on simple assault, for it omitted any reference to aggravating factors.