                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00458-CV


IN THE MATTER OF R.W.




                                    ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION 1

                                     ----------

      Appellant R.W. challenges the juvenile court’s adjudication that he

engaged in delinquent conduct by committing aggravated sexual assault of a

child and indecency with a child by contact. We sustain R.W.’s first point, modify

the juvenile court’s judgment of delinquency, and affirm it as modified. See Tex.

R. App. P. 43.2(b).




      1
       See Tex. R. App. P. 47.4.
      On August 1, 2012, the State filed a petition alleging that R.W., who was

fifteen years old, had engaged in delinquent conduct. See Tex. Fam. Code Ann.

§ 53.04 (West 2008). The petition was based on a March 17, 2012 incident

between R.W. and his seven-year-old cousin, A.H., where R.W. forced A.H. to

have anal sex.      The State’s delinquent-conduct allegations included one

allegation of aggravated sexual assault of a child and two allegations of

indecency with a child by contact. See id. § 51.03(a)(1) (West Supp. 2012); Tex.

Penal Code Ann. § 21.11 (West 2011), § 22.021 (West Supp. 2012). All of the

State’s allegations arose out of the March 17 incident.

      R.W. waived a jury and agreed to proceed before a juvenile-court referee.

See Tex. Fam. Code Ann. § 51.09 (West 2008), § 54.10 (West Supp. 2012).

After an adjudication hearing, the referee recommended that the aggravated-

sexual-assault allegation and one of the indecency-with-a-child allegations be

found true and that R.W. be adjudged to have engaged in delinquent conduct.

See id. § 54.03 (West Supp. 2012).          The juvenile-court judge adopted the

referee’s recommendations. See id. § 54.10(d).

      After a subsequent disposition hearing, the referee recommended that

R.W. be placed on probation for two years, which the judge adopted. See id.

§§ 54.04, 54.0405 (West Supp. 2012).         R.W. filed a notice of appeal and a

motion for new trial, which was overruled by operation of law. See Tex. R. Civ.

P. 329b(c); Tex. R. App. P. 26.1(a).



                                        2
      On appeal, R.W. argues that (1) the adjudication based on both indecency

with a child and aggravated sexual assault violated the Double Jeopardy Clause

because they arose from the same course of conduct and (2) the evidence was

insufficient to support the adjudication based on indecency with a child. The

State concedes that the adjudication based on aggravated sexual assault as well

as on the lesser-included offense of indecency with a child arising out of the

same conduct violated the Double Jeopardy Clause. Indeed, if the evidence at

trial shows only one instance of sexual contact, a conviction for aggravated

sexual assault along with a conviction for the lesser-included offense of

indecency with a child violates the prohibition against double jeopardy. See Ex

parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App. 2007); Patterson v. State, 152

S.W.3d 88, 92 (Tex. Crim. App. 2004); Ex parte Herron, 790 S.W.2d 623, 624

(Tex. Crim. App. 1990) (op. on reh’g). We sustain point one. 2

      R.W. and the State agree that the appropriate remedy is to vacate the

adjudication of delinquent conduct based on indecency with a child by contact. 3

See Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009). Therefore, we

modify the juvenile court’s judgment of delinquency to vacate that portion of the

judgment adjudging R.W. to have engaged in delinquent conduct based on

      2
       Because R.W.’s second point challenges the sufficiency of the evidence
to support the adjudication based on indecency with a child, which we now
vacate based on double jeopardy, we do not need to address point two. See
Tex. R. App. P. 47.1.
      3
       R.W. raises no challenges to the trial court placing him on probation.

                                        3
indecency with a child by contact. As modified, we affirm the juvenile court’s

judgment of delinquency.



                                                LEE GABRIEL
                                                JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: September 5, 2013




                                      4
