concurring.
On June 28, 1989, this Court handed down Doucette v. State, 774 S.W.2d 88 (Tex.App.—Beaumont 1989, pet. filed). This Court reversed two judgments whereby the Appellant was convicted twice in a consolidated trial of two offenses of felony bail jumping. The Court in Doucette held that the issue was whether the face of the two indictments conferred jurisdiction upon the district court. The Court’s opinion stated: “We hold the indictments fail to confer *736jurisdiction upon the district court because they fail to show whether the offense charged is a felony or misdemeanor”. By implication the Court’s opinion in Doucette decided that cases of this type resulted in void indictments. The Court in Doucette failed to analyze the record for error under TEX.R.APP.P. 81(b)(2).
But in Rhodes v. State, 778 S.W.2d 187 (Tex.App.—Beaumont, 1989), the Court in substance reasoned that the indictment, alleging in an enhancement paragraph the prior conviction by date, court, county and state, style, type of charging instrument and type of offense, was sufficient. The indictment was certainly not void.
According to the opinion in Doucette, supra, the indictments therein alleged the date of the offense and described the offense. Also the court, the county, the state, the style, the number (being in the 75th Judicial District Court of Liberty County, Texas) were clearly set out. The offenses for which the said James Thomas Doucette’s appearances were required were clearly set forth. They were theft— habitual offender. Hence, the types of offenses were correctly alleged.
In Rhodes, supra, the opinion dealt with an enhancement paragraph. Rhodes complained that the accusatory pleading did not notify him of what type of controlled substance he had been convicted of, being the delivery of an unidentified substance. As a practical matter on the question of notice or sufficiency, I submit that the Court in Rhodes overruled or stringently limited its holding in Doucette, supra. Moreover, the indictments in Doucette were not void; they conferred jurisdiction on and in the 75th District Court of Liberty County.
Furthermore, in Hasley v. State, now sub judice, the Appellant complained concerning the judgments in prior convictions. Therein one certified judgment showed that the Appellant’s prior conviction was for 12 years while another judgment in the same cause called for punishment set at 20 years. The Court now applies the harmless error rule under Rule 81(b)(2), finding no harm. Query: I agree with the result here but ask why apply Rule 81(b)(2) here, when the Court failed or neglected to do so in Doucette? Perhaps, no harm could be found in Doucette.
Adams v. State, 707 S.W.2d 900 (Tex.Crim.App.1986) construed TEX.CODE CRIM.PROC.ANN. Art. 21.19 (Vernon 1989), which statute the Court stated mandated that a judgment shall not be reversed by reason of any defect of form which does not prejudice a substantial right, or substantial rights, of the defendant or accused. None of Doucette’s substantial rights were prejudiced.
Our Ninth Court of Appeals in Green v. State, 767 S.W.2d 919 (Tex.App.—Beaumont 1989, pet. ref’d), stated that, when a challenge to an accusation for failure to give proper notice on which to prepare a defense is correctly and timely urged (with a sufficient statement of the manner in which notice is deficient) then fundamental, constitutional protections are involved, citing Drumm v. State, 560 S.W.2d 944, 946 (Tex.Crim.App.1977). If, however, sufficient notice is given; then the inquiry ends. If not, however, the next inquiries would be what harm or impact this deficiency had on an accused’s ability to prepare a defense and, finally, how great a harm or impact occurred, citing Adams v. State, supra.
Basically, then, a harm analysis, or at least a great impact analysis, was applied by this appellate court in Green v. State, supra, and this harm or great impact analysis was applied to a fundamental, constitutional protection or constitutional right. But we affirmed Green, supra. Surprisingly, the Ninth Court failed to follow Green, supra, in its own decision in Doucette v. State, supra.
Even when there is a material misdirection of the law, then the next and necessary determination is whether (under the circumstances of the case) the error was calculated to injure the rights of the accused. To result in a reversal, the error must have been calculated to be harmful and to actually injure the rights of the accused. In other words, the accused had to suffer harmful error and injury to his substantial rights even though an objection *737had been made. See and compare Almanza v. State, 686 S.W.2d 157, 171, 172, 178 (Tex.Crim.App.1984). Admittedly, Alman-za, supra, addressed error in the charge, but the rationale and reasoning therein are reasonably and compellingly logically applicable in this case and in Doucette, supra. Hence, a defect involving a fundamental or constitutional protection or right of an accused, will not result in a reversal unless harm or impact or great harm or great impact is demonstrated. TEX.CODE CRIM.PROC.ANN. Arts. 21.17, 21.18, 21.-19 (Vernon 1989). Article 21.18 specially provides matters of which judicial notice is taken need not be stated in the indictment. The District Judge in Doucette, supra, had the underlying offenses (felony thefts — habitual offenders) set out in the indictments before him in his own court’s records. Doucette, supra, was wrongly decided.
I concur with the affirmance; but I think that the Court’s opinion in Hasley sub judi-ce logically overturns or seriously modifies Doucette.