           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. PD-0364-10



                        JULIO CESAR PUENTE, Appellant

                                           v.

                              THE STATE OF TEXAS

        ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW
             FROM THE FOURTEENTH COURT OF APPEALS
                          HARRIS COUNTY

      P RICE, J., delivered the opinion of the Court in which W OMACK, J OHNSON,
H OLCOMB and C OCHRAN, JJ., joined. K EASLER, J., filed a concurring opinion in which
K ELLER, P.J., and H ERVEY, J., joined. H ERVEY, J. filed a concurring opinion in which
K ELLER, P.J., and K EASLER, J., joined. M EYERS, J., did not participate.

                                    OPINION

      In this aggravated sexual-assault case, the State moved to amend the indictment, and

the trial court granted the motion. The Fourteenth Court of Appeals asserted that the

indictment was amended accordingly by striking out certain words “on a copy of the
                                                                                                  Puente—2

indictment.” 1 On petition for discretionary review, the State now claims, inter alia, that the

record does not bear out the court of appeals’s assertion that “a copy of the indictment” was

altered. In fact, only the written judicial confession in the documents supporting the

appellant’s guilty plea was actually altered. We must decide, therefore, whether the physical

alteration of a written judicial confession may be regarded as an amendment to the indictment

in contemplation of Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure.2

                                    PROCEDURAL POSTURE

        The appellant was charged by indictment with the felony offense of aggravated sexual

assault of a child for “THE PENETRATION OF THE ANUS of [J.C.], a child younger than

six years of age . . . WITH FINGER.” This allegation charged the appellant with a first-

degree felony offense,3 but with an enhanced minimum punishment of twenty-five years

confinement in the penitentiary by virtue of the allegation that the child who was sexually

assaulted was younger than six years of age.4 The appellant and the State entered into plea


        1

        Puente v. State, No. 14-08-01011-CR, 2010 WL 46534 (Tex. App.—Houston [14th Dist.]
January 7, 2010) (mem. op.) (Slip op. at 6) (not designated for publication).
        2

         TEX . CODE CRIM . PROC. arts. 28.10 & 28.11.
        3

           See TEX . PENAL CODE § 22.021(a)(1)(B)(i), (a)(2)(B), & (e) (“A person commits an offense
. . . if the person . . . intentionally or knowingly . . . causes the penetration of the anus . . . of a child
by any means . . . and . . . if . . . the victim is younger than 14 years of age[.] * * * An offense under
this section is a felony of the first degree.”).
        4

        See TEX . PENAL CODE § 22.021(f)(1) (“The minimum term of imprisonment for an offense
under this section is increased to 25 years if . . . the victim of the offense is younger than six years
of age at the time the offense is committed[.]”).
                                                                                      Puente—3

negotiations. From what we are able to gather from the record, the appellant agreed to plead

guilty to the first-degree felony offense of aggravated sexual assault of a child—unenhanced,

however, by the allegation that the child was younger than six years of age—in exchange for

a sentence of twenty-one years. Such an agreed punishment would not have been available

for a conviction of aggravated sexual assault of a child younger than six years of age, because

it is a lesser term of years than the minimum term of imprisonment of twenty-five years that

is applicable for a victim of that age. Accordingly, the State proposed to amend the

indictment, apparently in an attempt to have it reflect the first-degree felony offense of sexual

assault of a child younger than fourteen years of age, without including the mandatory-

minimum enhancing circumstance that the child was also younger than six years of age. At

the plea hearing, the trial court acknowledged that the parties had agreed to such an

amendment of the indictment, and the trial court approved the amendment.5

       However, neither the indictment itself nor a copy of it was actually amended in

accordance with the agreement of the parties. Instead, the prosecutor manually struck certain

language from the written judicial confession contained in the “Waiver of Constitutional

Rights, Agreement to Stipulate, and Judicial Confession” that was entered into evidence in

support of the guilty plea. As amended (and showing the strike-out), the judicial confession

acknowledges that the appellant “did [on the alleged date] unlawfully, intentionally and



       5

         See TEX . CODE CRIM . PROC. art. 28.11 (“All amendments of an indictment or information
shall be made with the leave of the court and under its direction.”).
                                                                                            Puente—4

knowingly cause THE PENETRATION OF THE ANUS of [J.C.], a child younger than six

years of age . . . WITH FINGER.” Underneath the judicial confession as thus altered appears

the handwritten notation: “State moves to amend the indictment as reflected above.” But

nowhere in the record do we find either that the indictment itself was actually altered in any

way or that a copy of the indictment with the agreed changes noted on it was introduced

memorializing such an amendment.             Based upon the unamended indictment and the

appellant’s judicial confession, the trial court nevertheless accepted the appellant’s plea,

found him guilty of aggravated assault of a child, and set his punishment at the agreed

twenty-one-year term of imprisonment.

       On direct appeal, the appellant argued that his twenty-one year prison sentence was

illegal because unauthorized. He argued that the amendment to the judicial confession

constituted a valid amendment to the indictment and that, as thus amended, namely, by

striking the language “a child younger than six years of age,” the indictment alleged only the

second-degree felony offense of sexual assault of a child under Section 22.011(a)(2)(A) of

the Penal Code, which carries a maximum sentence of twenty years.6

       6

          The appellant is mistaken that the indictment as thus amended would have alleged the
second-degree felony offense of sexual assault of a child. Had the indictment actually been amended
as reflected in the alteration to the judicial confession, it would have alleged that the appellant “did
. . . unlawfully, intentionally and knowingly cause THE PENETRATION OF THE ANUS of J.C.,
. . . WITH FINGER.” This language fails to allege a complete offense, because it alleges neither that
the actor lacked the victim’s consent nor that the victim was younger than seventeen. See TEX .
PENAL CODE § 22.011(a) & (c)(1). Therefore, had the indictment been amended as reflected in the
judicial confession, and the appellant had objected to it under TEX . CODE CRIM . PROC. art. 1.14(b),
it would have supported neither a conviction for aggravated sexual assault of a child nor a conviction
for sexual assault of a child.
                                                                                               Puente—5

        The court of appeals agreed. In its unpublished opinion, however, the court of appeals

misread the record, as follows:

        On October 21, 2008, the State submitted the amendment to the indictment by
        physically striking through the words “a child younger than six years of age”
        on a copy of the indictment. Appellant did not object to the amendment. The
        trial court subsequently approved the amendment. Therefore, the indictment
        was properly amended.7

Finding that this amendment to the indictment had the effect of reducing the charge against

the appellant to the second-degree offense of sexual assault, the court of appeals concluded

that the appellant’s sentence was indeed unauthorized, and therefore, illegal.8 Accordingly,


        One adjudged guilty of a second-degree felony offense of sexual assault of a child faces a
prison sentence for “any term of not more than 20 years or less than 2 years.” TEX . PENAL CODE §
12.33(a). The appellant argues that, in order to effectuate the true intent of the parties, the
amendment should have struck only the words “younger than six years of age.” By also striking the
words “a child,” he maintains, the amendment had the effect of alleging only the second-degree
felony of sexual assault. We note, however, that, even had the words “a child” not been struck, the
amendment would still have alleged only a second-degree sexual assault. Penetration of the anus
of a “child” only amounts to a sexual assault unless it can be shown that the “child” is also younger
than fourteen years of age. See TEXAS PENAL CODE § 22.011(a)(2)(A) & (c)(1) (“A person commits
an offense if the person . . . intentionally or knowingly . . . causes the penetration of the anus . . . of
a child by any means[.] * * * In this section . . . “Child” means a person younger than 17 years of
age[.]”). The best way for the parties to have changed the allegation to allow the appellant to plead
guilty in exchange for a twenty-one-year sentence would have been simply to strike the word “six”
and replace it with the word “fourteen.” See TEXAS PENAL CODE § 22.021(a)(2)(B) (intentional or
knowing penetration of a child’s anus is an aggravated offense if “the victim is younger than 14 years
of age[.]”). This would have raised the sexual assault of a child to a first-degree aggravated sexual
assault, but would not have subjected the appellant to the mandatory twenty-five-year minimum term
of imprisonment.
        7

        Puente v. State, supra (Slip op. at 6) (emphasis added).
        8

        Id. (Slip op. at 6-7). The court of appeals explained:

               A sentence that is outside the maximum or minimum range of punishment is
        unauthorized by law and therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex.
                                                                                            Puente—6

the court of appeals set the conviction aside, ordered the parties “returned to their respective

positions before the ‘guilty’ plea was entered,” and remanded the cause for further

proceedings.9 We granted the State’s petition for discretionary review, inter alia, to address

its contention that the amendment to the judicial confession did not amount to an amendment

to the indictment. We agree with the State that an amendment to the written judicial

confession that was introduced in support of the guilty plea does not amount to an

amendment to the indictment. We therefore reverse.

                                            ANALYSIS

        A person commits sexual assault if, inter alia, the person “intentionally or knowingly

. . . causes the penetration of the anus . . . of a child by any means,” a child being “a person

younger than 17 years of age[.]” 10 This is a second-degree felony, punishable by a term of



        Crim. App. 2003) (en banc); Ex parte Seidel, 39 S.W.3d 221, 225 n.4 (Tex. Crim.
        App. 2001) (en banc). A defendant may obtain relief from an unauthorized sentence
        on direct appeal or by a writ of habeas corpus. Mizell, 119 S.W.3d at 806. Appellant
        was sentenced to confinement for 21 years. Because the amended indictment only
        alleged the offense of sexual assault, the maximum penalty appellant could have been
        sentenced to is confinement for 20 years. See Tex. Penal Code Ann. §§ 12.33(a),
        22.011(f). Therefore, appellant’s sentence is illegal. See Mizell, 119 S.W.3d at 806;
        Ex parte Seidel, 39 S.W.3d at 225 n.4. When punishment pursuant to a negotiated
        plea agreement exceeds the statutory maximum, the proper relief is to return the
        parties to their respective positions before the guilty plea was entered. Ex parte Rich,
        194 S.W.3d 508, 515 (Tex. Crim. App. 2006); Ex parte Beck, 922 S.W.2d 181, 182
        (Tex. Crim. App. 1996) (per curiam).

Id. (Slip op. at 7).
        9

         Id. (Slip op. at 8).
        10

         TEX . PENAL CODE §§ 22.011(a)(2)(A) & ( c )(1).
                                                                                       Puente—7

two to twenty years in the penitentiary.11 A person commits the offense of aggravated sexual

assault if, inter alia, the person “intentionally or knowingly . . . causes the penetration of the

anus . . . of a child by any means” and “the victim is younger than 14 years of age.” 12 This

offense is a felony of the first degree, carrying a punishment range of five to ninety-nine

years or life in the penitentiary.13 But the five-year minimum term of imprisonment for this

first-degree felony “is increased to 25 years if . . . the victim of the offense is younger than

six years of age at the time the offense is committed[.]” 14 The indictment in this cause

originally alleged that the appellant caused the penetration of the anus of a child less than six

years old, thereby charging him with a first-degree felony with a minimum term of

punishment of twenty-five years.

       But a victim who is younger than six years of age is also, by definition, younger than

fourteen years of age. Sexual assault of a fourteen-year-old is, in essence, a lesser-included

offense of sexual assault of a six-year-old. Therefore, the original indictment was already,

without the necessity of an amendment, sufficient to authorize conviction for the unenhanced




       11

        TEX . PENAL CODE §§ 12.33(a) & 22.011(f).
       12

        TEX . PENAL CODE §§ 22.021(a)(1)(B)(i), (2)(B).
       13

        TEX . PENAL CODE §§ 12.31 & 22.021(e).
       14

        TEX . PENAL CODE §§ 22.021(e), (f)(1).
                                                                                            Puente—8

first-degree felony of sexual assault of a child younger than fourteen years of age.15 If the

indictment was never amended in this case, then there is nothing illegal about the appellant’s

twenty-one-year sentence. The key inquiry in this case therefore devolves into whether the

court of appeals erred to conclude that the indictment was in fact ever amended, such that the

appellant was charged with the second-degree offense of sexual assault rather than the first-

degree offense of aggravated sexual assault of a child under the age of six. If the indictment

was in fact amended, the judgment entered at the trial court level may well have been illegal.

However, if the indictment was not amended, the sentence entered by the trial judge pursuant

to the plea agreement was permissible, and we should reverse the court of appeals’s

judgment.16

       Articles 28.10 and 28.11 of the Code of Criminal Procedure allow for the possibility

of amending an indictment and supply the procedure to be followed for successful




       15

        See Allison v. State, 618 S.W.2d 763, 764-65 (Tex. Crim. App. 1981) (indictment alleging
burglary of a habitation will authorize conviction for lesser-included offense of burglary of a building
without necessity of an amendment to the indictment); Hardie v. State, 79 S.W.3d 625, 631-32 (Tex.
App.—Waco 2002, pet. ref’d) (indictment need not be amended or altered at all to support
conviction for lesser-included offense).
       16

        Because we will hold that the indictment was in fact not amended, we need not address
whether the court of appeals should nevertheless have affirmed the trial court’s judgment on some
other basis such as estoppel. The State has argued alternatively that the appellant, having agreed
with the State to amend the indictment in a way that would support a twenty-one-year sentence,
should now be estopped from arguing that his sentence is illegal because no such amendment was
successfully accomplished. Our disposition makes it unnecessary to resolve this alternative
argument.
                                                                                      Puente—9

amendment.17 In Riney v. State, this Court conducted an analysis of Articles 28.10 and

28.11.18 To the extent that Ward v. State 19 had required physical interlineation of the original

indictment found in the clerk’s file as the exclusive method of amendment, Riney overruled

Ward.20 The Court then explained an alternative method for amending an indictment:

       It is acceptable for the State to proffer, for the trial court’s approval, its
       amended version of a photocopy of the original indictment. If approved, the
       amended photocopy of the original indictment need only be incorporated into
       the record under the direction of the court, pursuant to Article 28.11, with the
       knowledge and affirmative assent of the defense. This version of the
       indictment would then become the “official” indictment in the case, and it
       would continue to state, presumably in “plain and intelligible” language, the
       nature and cause of the accusation.21

The Court in Riney then noted that Ward would “continue[] to stand for the proposition that

‘[n]either the motion [to amend] itself nor the trial judge’s granting thereof is an amendment;

rather the two comprise the authorization for the eventual amendment of the charging

instrument pursuant to Article 28.10.’” 22



       17

        TEX . CODE CRIM . PROC. arts. 28.10, 28.11.
       18

        Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000).
       19

       Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992), overruled in part by Riney v. State,
28 S.W.3d 561 (Tex. Crim. App. 2000).
       20

        Riney, 28 S.W.3d at 566.
       21

        Id. at 565-66.
       22

        Id. at 566.
                                                                                          Puente—10

       Our holding in Riney did not necessarily rule out the possibility that there could be

other valid methods to amend an indictment. We need not decide that question today.

Regardless of whether there may be legitimate ways to amend an indictment other than to

make changes directly to the original indictment or to place an amended duplicate into the

record, we do not believe that manual changes to a written judicial confession should suffice

under any circumstances. A judicial confession in a guilty plea, even when it is reduced to

writing, is decidedly not a charging instrument, nor may it serve as a reasonable facsimile for

one. Its purpose is altogether different than that of a criminal pleading. A written judicial

confession provides evidentiary support for a plea of guilty to the charges alleged in the

indictment or to some lesser included offense of that which is alleged in the indictment.23

Any change or interlineation to the written judicial confession serves to change the evidence

offered in support of the plea, not the content of the charging instrument.                 It would

complicate matters intolerably to hold that a change or alteration to a written judicial

confession may also (or alternatively) serve as an amendment to the pleading itself.

                                         CONCLUSION

       We hold that the State’s request to amend the indictment and the trial court’s granting

that request did not serve to amend the indictment where alterations were made solely to the



       23

        See, e.g., Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009) (a “sworn written
statement” acknowledging guilt of the charged offense is one form of permissible evidence that may
be entered in support of guilty plea in a felony case to satisfy the statutory requirement, under TEX .
CODE CRIM . PROC. art. 1.15, that the State introduce evidence substantiating guilt).
                                                                                  Puente—11

written judicial confession. Therefore, the appellant’s sentence was authorized, and the court

of appeals erred in vacating the trial court’s judgment. We reverse the judgment of the court

of appeals and reinstate the judgment of the trial court.


DELIVERED:           September 22, 2010
PUBLISH
