             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                          NO. PD-0399-17


            KENYETTA DANYELL WALKER, Appellant

                                   v.

                       THE STATE OF TEXAS

   ON STATE’S PETITION FOR DISCRETIONARY REVIEW
        FROM THE SEVENTH COURT OF APPEALS
                   ORANGE COUNTY

     Newell, J., delivered the opinion for a unanimous Court.

     If the jury convicts the defendant of a “non-existent” greater

offense, can a court of appeals reform the judgment to reflect a

conviction for an existent “lesser-included” offense? Yes, if the reformed

offense is authorized by the indictment.      In this case, it was.   We

therefore remand the case to the court of appeals to determine a)

whether the jury necessarily found each element of the offense of
                                                                              Walker — 2

possession with intent to deliver beyond a reasonable doubt, and b)

whether the evidence was legally sufficient to support the conviction for

that offense.

                                           Facts

        Appellant lived in a house that police identified as a “a major

distribution point” for drugs along with her two daughters and a man who

went by the nickname “Pill.”1 On two occasions, a confidential informant

had purchased marijuana and synthetic marijuana at the house.

Additionally, people known to the police had been making short, frequent

stops at the house when Appellant was believed to be present.

        One night, three intruders broke into the house through the front

door.       A gunfight ensued.        One of the intruders escaped the home

unscathed. Another limped away. The final intruder crawled out of the

house to die on the lawn. Police were called out to the scene.

        Surveillance cameras around the house showed that after the

shootout, but before the police arrived, Appellant made several trips

outside.       First, she carried a bag of more than 400 grams of

dihydrocodeinone pills to an Infiniti parked outside. Then she sprayed



        1
         “Pill” was identified by nam e as Desrick W arren. Another m an, Brian Gant,
som etim es stayed at the house as well.
                                                               Walker — 3

some Febreze in the air. Finally, she gave a pistol to “Pill” who left the

scene, but not before he hit the dead man on the lawn.

     Police arrived to find the dead body lying on the ground outside of

the house and occasional guest, Brian Grant (who had also been shot),

sitting near the porch. A subsequent search of the house uncovered a

large amount of controlled substances and drug paraphernalia. Police

identified what they believed to be cocaine, blue vials of PCP, Xanax, and

codeine cough syrup in a baby bottle. The smell of raw marijuana in one

room was so strong it made the police lieutenant’s eyes water. Police

also recovered digital scales, re-sealable plastic bags, and a drawer full

of small denomination bills. Finally, they recovered the pills from the bag

Appellant had placed in the parked Infiniti.

                                 Charges

     The State charged Appellant with engaging in organized criminal

activity by commission of the predicate offense of possession of a

controlled substance. The indictment was later amended to include the

allegation that Appellant had possessed the controlled substance “with

intent to deliver.” Appellant did not object to the indictment or otherwise

argue to the trial court that the indictment was substantively defective for
                                                                               Walker — 4

alleging a non-existent offense.2

       The jury charge in this case tracked the language of the indictment.

It instructed the jury to determine whether, beyond a reasonable doubt,

Appellant or another member of a criminal combination possessed 400

grams of dihydrocodeinone, hydrocodone with intent to deliver. It also

instructed the jury that it had to find that Appellant acted as a party to

the offense if it believed one of the other members of the criminal

combination, rather than Appellant, had possessed the controlled

substance with the intent to deliver.              The relevant portion of the jury

charge reads as follows:

                           Application of Law to Facts

              Engaging in Organized Criminal Activity

             You must decide whether the State has proved, beyond
       a reasonable doubt the following elements. The elements are
       that-

              1.      One or more of the following persons: the
                      defendant KENYETTA DANYELL WALKER or BRIAN
                      G AN T  or   DESRICK    W ARREN,   possessed
                      Dihydrocodeinone (Hydrocodone) in Orange
                      County, Texas, on or about December 12, 2014;
                      and



       2
         This all was prior to this Court’s decision in Hughitt v. State, 583 S.W .3d 623 (Tex.
Crim . App. 2019), which held that possession of a controlled substance with intent to deliver
is not a valid predicate offense for the crim e of engaging in organized crim inal activity.
                                                            Walker — 5

           2.   The Dihydrocodeinone, Hydrocodone was,           by
                aggregate weight, including adulterants          or
                dilutants, 400 grams or more; and

           3.   Such person knew he/she was possessing a
                controlled substance; and

           4.   Such person intended to deliver the controlled
                substance; and

           5.   [T]he defendant intended to establish, maintain, or
                participate in a combination or in the profits of a
                combination.

                If the person you found in #1, 3, and 4 was not
                the defendant, then the State must prove beyond
                a reasonable doubt that the defendant acted with
                intent to promote or assist the commission of the
                offense; and she aided or attempted to aid the
                other person to commit the offense.

           You must agree on elements listed above.

           If you all agree the State has proven each of the
     elements above, you must find the defendant “guilty” of the
     offense of Engaging in Organized Criminal Activity, and your
     deliberations are complete.

          If you all agree the State has failed to prove, beyond a
     reasonable doubt, one more of elements listed above, you
     must the [sic] consider the lesser included offense of
     Possession of a Controlled Substance.

The jury charge also contained an instruction on the “lesser” offense of

possession of a controlled substance. The jury convicted Appellant of the

“greater” offense of engaging in organized criminal activity.
                                                                            Walker — 6

                                        Appeal

       Appellant raised a challenge to the sufficiency of the evidence to the

court of appeals. She did not argue that the charged offense lacked a

qualifying predicate offense. To its credit, the court of appeals noticed

this issue and requested supplemental briefing on it. In response to the

court of appeals’ request for briefing, Appellant argued that the

indictment was fundamentally defective because it failed to allege an

offense.

       The court of appeals recognized that Appellant had waived her

argument about the defect in the indictment, but still reversed the

conviction. The court resolved Appellant’s sufficiency claim by reviewing

the evidence in relation to the jury charge given to the jury rather than

in relation to a hypothetically correct one. Through that lens, the court

held that there was “more than some” evidence that would have enabled

a reasonable jury to conclude beyond a reasonable doubt that Appellant

had committed the offense of engaging in organized criminal activity as

alleged in the indictment.3

       Then, the court of appeals addressed “a circumstance unmentioned



      3
        W alker v. State, 2017 W L 1292006, at *2 (Tex. App.–Am arillo Mar. 30, 2017) (not
designated for publication).
                                                              Walker — 7

by appellant”—the failure to incorporate all the elements of engaging in

the jury instructions.4   Characterizing the issue as “unassigned” jury

charge error, the court considered the effect of the lack of a qualifying

predicate offense for the alleged crime of engaging in organized criminal

activity. The court held that the error in the jury charge—the State’s

failure to incorporate some elements of engaging in organized criminal

activity, but not others—was egregiously harmful and remanded the case

for a new trial.

      We granted the State’s petition for discretionary review to answer

the question, “Can a conviction for a charged, but non-existent, offense

be reformed to a subsumed and proven offense that does exist?”

According to the State, the court of appeals erred in its legal sufficiency

analysis because it measured the error against the erroneous jury

instruction instead of the essential elements of the offense. What the

court of appeals should have done, the State argues, is a) hold that the

evidence was legally insufficient to support the conviction for engaging in

criminal activity, and b) reform the conviction to the “lesser-included”

offense of possession of a controlled substance with intent to deliver. In




      4
          Id.
                                                               Walker — 8

the State’s view, the court of appeals never should have addressed the

issue as unassigned jury charge error.

     Appellant agrees with the State that the intermediate court’s legal

sufficiency analysis was erroneous. According to Appellant, the evidence

was legally insufficient because engaging in criminal activity based upon

possession with intent to deliver is not an offense. However, Appellant

disagrees with the State that the court of appeals should have reformed

the judgment to reflect a conviction for possession of a controlled

substance. Instead, Appellant argues that the only proper remedy is an

acquittal.

     Treating the issue in this case as a jury instruction error, just as the

court of appeals did, has intuitive appeal in light of the defects in the

indictment and the jury charge. However, we agree with the State that

we should analyze this as a legal sufficiency issue for a number of

reasons.     First, Appellant only raised a sufficiency claim in the court

below.     Second, when the issue regarding the lack of a qualifying

predicate was drawn to Appellant’s attention, she argued that the

indictment was fundamentally defective, not that the jury charge was

erroneous. Finally, both parties, in their briefing before this Court, agree

that we are faced with a sufficiency issue, not a jury charge issue.
                                                                             Walker — 9

Consequently, we address whether the court of appeals properly analyzed

Appellant’s sufficiency argument and then decide whether reformation of

the judgment is the appropriate remedy in light of the flaws in the

indictment and jury instruction.

                                        Sufficiency

       In assessing the legal sufficiency of the evidence to support a

criminal conviction, reviewing courts must consider the evidence in a light

most favorable to the jury’s verdict.5 Courts must determine whether,

based on that evidence and reasonable inferences therefrom, a rational

juror could have found the essential elements of the crime beyond a

reasonable doubt.6 Each fact need not point directly and independently

to the guilt of a defendant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.7

Reviewing courts must give deference to the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh the evidence, and to




       5
           Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).

       6
        Alfaro-Jim enez v. State, 577 S.W .3d 240, 244 (Tex. Crim . App. 2019). See
Jackson, 443 U.S. at 314 (“It is axiom atic that a conviction upon a charge not m ade or upon
a charge not tried constitutes a denial of due process.”).

       7
        Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson, 443 U.S.
at 318–19).
                                                                             Walker — 10

draw reasonable inferences from basic facts to ultimate facts.8

       Importantly, sufficiency review does not rest on how the jury was

instructed.9        Instead, we review whether the evidence supports the

elements of the charged crime.10               Those elements are defined by the

hypothetically correct jury charge.11               The hypothetically correct jury

charge accurately sets out the law, is authorized by the indictment, does

not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.12

       Finally, in some cases, sufficiency of the evidence also turns on the

meaning of the statute under which the defendant has been prosecuted.13



       8
            Jackson, 443 U.S. at 318–19.

       9
          Ram jattansingh v. State, 548 S.W .3d 540, 546 (Tex. Crim . App. 2018) (citing
Mussachio v. United States, 136 S.Ct. 709, 715 (2016)); see also Jackson, 443 U.S. at 318
(“After W inship the critical inquiry on review of the sufficiency of the evidence to support a
crim inal conviction m ust be not sim ply to determ ine whether the jury was properly
instructed, but to determ ine whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt.”).

       10
            Mussachio, 136 S.Ct. at 715.

       11
         Ram jattansingh, 548 S.W .3d at 546 (quoting Malik v. State, 953 S.W .2d 234, 240
(Tex. Crim . App. 1997)).

       12
          Id.; see also Alfaro-Jim enez, 577 S.W .3d at 244 (“‘As authorized by the
indictm ent’ m eans the statutory elem ents of the offense as m odified by the charging
instrum ent.”).

       13
         Alfaro-Jim enez, 577 S.W.3d at 244 (citing Liverm an v. State, 470 S.W .3d 831, 836
(Tex. Crim . App. 2015)).
                                                                           Walker — 11

We consider whether certain conduct actually constitutes an offense

under the relevant statute.14                     In other words, we conduct a statutory

construction analysis de novo.15

     As discussed above, the State charged Appellant with engaging in

organized criminal activity based upon the commission of the “predicate”

offense of possession of a controlled substance with intent to deliver.

This meant that the State was required to prove both the existence of a

criminal combination that planned to engage in criminal activities and the

actual commission of at least one listed predicate offense. 16 Here, the

State purported to rely upon a predicate offense listed in Section

71.02(a)(5).         This section designates applicable predicate offenses as

follows:

     (5)        unlawful manufacture, delivery, dispensation, or
                distribution of a controlled substance or dangerous drug
                in violation of Subtitle B, Title 3, Occupations Code.17

The State’s theory was that the offense of possession of a controlled

substance with the intent to deliver was contained within the offense of



     14
          Id.

     15
          Id.

     16
          O’Brien v. State, 544 S.W.3d 376, 392–93 (Tex. Crim . App. 2018).

     17
          T EX . P ENAL C O D E § 71.02 (a)(5).
                                                                              Walker — 12

delivery of a controlled substance.

       We recently held in Hughitt v. State that possession of a controlled

substance with the intent to deliver is not a valid predicate offense for the

greater offense of engaging in organized criminal activity.18 For the State

to rely upon actual delivery of a controlled substance to support the

offense of engaging, it must prove more than possession with the intent

to deliver.19       Conversely, for the State to rely upon possession of a

controlled substance to support the offense of engaging, it must prove

that the possession occurred “through forgery, fraud, misrepresentation,

or deception.” 20

       As the court of appeals correctly noted, albeit in the context of its

unassigned jury charge analysis, the essential elements of the offense of

engaging required the State to prove more than possession with the

intent to deliver.21        And the court of appeals was correct that the jury



       18
            583 S.W .3d at 631.

       19
          Id. (holding that the words “m anufacture” and “delivery” do not include within
their m eaning a reference to the separate offense of possession of a controlled substance
with the intent to deliver).

       20
          T EX . P ENAL C O DE § 71.02(a)(5); Hughitt, 583 S.W .3d at 631 (noting that §
71.02(a)(5) lists possession of a controlled substance “through forgery, fraud,
m isrepresentation, or deception” as a valid predicate offense for the greater crim e of
engaging in organized crim inal activity).

       21
            W alker, 2017 W L 1292006, at *2.
                                                                            Walker — 13

charge was erroneous because it failed to include a statutorily designated

predicate offense.22 Yet, in its sufficiency analysis, the court of appeals

measured the sufficiency of the evidence against the erroneous jury

charge rather than a hypothetically correct jury charge.23                       Doing so

effectively allowed a conviction on the greater offense in violation of due

process because the State did not prove every element of the offense

beyond a reasonable doubt.24

       Measuring the evidence against the hypothetically correct jury

charge, “more than some” evidence existed in the record to enable a

rational jury to find that Appellant was part of a criminal combination and

that Appellant, or a member of the combination, had possessed the

alleged controlled substance in the requisite amount. But the State did

not produce evidence establishing the commission of a qualifying

predicate offense. Even though there was evidence that Appellant, or a

member of the combination, possessed a controlled substance, the State




       22
            Id. at *3.

       23
            Id. at *2.

       24
           Jackson, 443 U.S. at 316 (“W inship presupposes as an essential of the due process
guaranteed by the Fourteenth Am endm ent that no person shall be m ade to suffer the onus
of a crim inal conviction except upon sufficient proof—defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the existence of every elem ent of the
offense.”).
                                                              Walker — 14

did not prove that the controlled substance had been possessed “through

forgery, fraud, misrepresentation, or deception.” Further, even though

there was evidence that Appellant, or a member of the combination,

possessed a controlled substance with the intent to deliver, there was

insufficient evidence to support a conviction for actual delivery of the

hydrocodone. We agree with both the State and Appellant that without

evidence supporting a qualifying predicate offense authorized by the

indictment, Appellant should have been acquitted of the greater offense

of engaging in organized criminal activity.         We reverse the court of

appeals’ holding in this regard.

                                    Reformation

     The development of our law regarding reformation to lesser-

included offenses is fairly straightforward.        In Bigley v. State, the

defendant was charged with possession of 400 grams or more of

methamphetamine.25 The court of appeals held that the evidence was

insufficient to support the conviction for the greater offense, but it

reformed the conviction to the lesser-included offense of possession of

between 28 and 400 grams of methamphetamine.26               We held that,


     25
          865 S.W .2d 26 (Tex. Crim . App. 1993).

     26
          Id. at 27.
                                                                            Walker — 15

pursuant to the Rules of Appellate Procedure, the court of appeals had the

authority to reform the judgment to reflect a conviction for the lesser-

included offense.27

     In Collier v. State, Judge Keasler explained in his concurring opinion

that a court of appeals may reform a judgment only to cause it to reflect

the true finding of the fact finder.28 He noted that we had rejected the

idea that reformation was only appropriate to correct clerical errors in

Bigley even though this interpretation seemed to expand the authority for

reformation beyond what had existed under former Article 44.24(b). 29

But he explained that if there were an expansion of authority, that

expansion did not authorize a court of appeals to render a judgment that

was completely unavailable at the time of trial.30                  Instead, a court of

appeals may only reform a judgment to reflect the judgment that the trial

court was capable of rendering in light of the jury instructions at trial.31

We later recognized that Judge Keasler’s concurring opinion set out the




     27
          Id. at 27–28.

     28
          999 S.W .2d 779, 784 (Tex. Crim . App. 1999) (Keasler, J., concurring).

     29
          Id.

     30
          Id.

     31
          Id.
                                                                             Walker — 16

proper rationale for allowing an appellate court to reform a judgment

after conducting a sufficiency review.32               But in Thornton v. State, we

abandoned the requirement that jury reformation be limited by the jury

instructions at trial.33          We rejected the portion of Collier that tied

reformation to a request for a lesser-included offense instruction when

the evidence was insufficient to support the greater offense.34

       Instead, we held that a court of appeals may reform a judgment

after an acquittal of a greater-inclusive offense to a lesser-included

offense if two conditions are met: 1) the jury necessarily found every

element necessary to convict the appellant of the lesser-included offense

when it convicted the appellant of the greater-inclusive offense, and 2)

there is sufficient evidence to support a conviction for that offense.35

These requirements satisfy the due process protections inherent to legal

sufficiency review by preventing arbitrary deprivation of liberty based

upon charges never filed while also ensuring that the State carries its



       32
          Haynes v. State, 273 S.W .3d 183, 187 (Tex. Crim . App. 2008); see also Bowen v.
State, 374 S.W .3d 427, 433 (Tex. Crim . App. 2012) (Price, J., dissenting) (“In Haynes v.
State, a solid m ajority of the Court recognized Judge Keasler’s concurring opinion in Collier
v. State, as the governing ratio decidendi.”).

       33
            425 S.W .3d 289, 297 (Tex. Crim . App. 2014).

       34
            Id.

       35
            Id. at 299–300.
                                                                              Walker — 17

burden to prove each element of the charged offense beyond a

reasonable doubt.36           Finally, it also serves to give effect to the jury’s

verdict by tying reformation to what the jury necessarily found when it

reached that verdict. 37

       But what about when the “greater inclusive” offense is a “non-

existent” offense? This question gets at the heart of the problem in this

case, namely whether reformation is proper when the indictment “fails to

allege a crime within the scope of the engaging in organized criminal

activity statute.”38 Can a court reform to a lesser offense when there is

no greater one?

       The confusion in this case seems to echo from our “void judgment”

jurisprudence. Prior to 1985, a defect in the substance of an indictment

was said to be “fundamental error” because such a defect failed to confer


       36
          See Thom pson v. City of Louisville, 362 U.S. 199, 206 (1960) (“Just as
‘[c]onviction upon a charge not m ade would be sheer denial of due process,' so is it a
violation of due process to convict and punish a m an without evidence of his guilt.”); In re
W inship, 397 U.S. 358, 363–64 (1970) (the standard of proof beyond a reasonable doubt
“plays a vital role in the Am erican schem e of crim inal procedure” because it operates to give
“concrete substance” to the presum ption of innocence to ensure against unjust convictions,
and to reduce the risk of factual error in a crim inal proceeding); Jackson, 443 U.S. at 309
(the constitutional standard recognized in W inship requires that every elem ent of the
offense be proved beyond a reasonable doubt).

       37
          See Collier, 999 S.W .2d at 784 (Keasler, J., concurring). See, e.g., United States
v. Haym ond, 139 S.Ct. 2369, 2376 (2019) (plurality op.) (noting that “A judge’s authority
to issue a sentence derives from , and is lim ited by, the jury’s factual findings of crim inal
conduct.”).

       38
            W alker, 2017 W L 1292006, at *2.
                                                                                      Walker — 18

jurisdiction upon the trial court, and any conviction had upon that

instrument was therefore void.39 The failure to allege an element of an

offense in the charging instrument was the type of substantive defect that

rendered conviction upon such an indictment void.40

       But in 1985, Article V, § 12 was amended so that the mere

presentment of the indictment or information, rather than the substance

of the indictment, confers jurisdiction on the trial court.41 Further, Article

1.14(b) was amended to require an objection to any substantive defects

in the indictment prior to trial or else the complaint is forfeited.42 Based

upon these amendments, we concluded that the requisites of an

indictment are not jurisdictional and stem from statutory law alone.43

       We have recognized as a legal principle that an indictment that fails

to allege “the commission of an offense” is not an indictment under the

Texas Constitution.44              And absent an indictment or a valid waiver, a

      39
            Studer v. State, 799 S.W.2d 263, 267 (Tex. Crim . App. 1990).

       40
            Id.

      41
            T EX . C O NST . art. V, § 12; see also Studer, 799 S.W.2d at 265, 268.

      42
            T EX . C O D E C RIM . P RO C . art. 1.14(b); see also Studer, 799 S.W.2d at 265, 268.

       43
            Studer, 799 S.W .2d at 272.

      44
          Duron v. State, 956 S.W .2d 547, 550–51 (Tex. Crim . App. 1997) (holding that an
“offense” is charged if the written instrum ent “accuses som eone of a crim e with enough
clarity and specificity to identify the penal statute under which the State intends to
prosecute”). If the written instrum ent purporting to be an indictm ent does not in fact
                                                                             Walker — 19

district court does not have jurisdiction over a case.45 Presiding Judge

Keller properly demonstrated the standard for determining if an

indictment alleges “the commission of an offense” in her concurring

opinion in Teal v. State.

       Duron’s standard for determining when an “offense” is alleged
       can be understood through the following example. Suppose
       the purported indictment alleged only the name of the
       perpetrator and a culpable mental state: e.g. “John Smith
       intentionally.” Any number of criminal offenses could contain
       those allegations. Under Duron, this simply would not be
       enough information to allege an offense.46

Had the indictment in this case been as deficient as the one envisioned

by Presiding Judge Keller then we might characterize the engaging

offense as the State does, as a “non-existent” offense.

       But the indictment in this case did allege “the commission of an

offense.” It at least alleged the commission of the offense of possession

of a controlled substance with the intent to deliver.47 The lack of a valid


qualify as an “indictm ent,” then the defendant is exem pted from the usual requirem ent that
he object to defects in the indictm ent before the date of trial. Id. at 551.

       45
          Teal v. State, 230 S.W.3d 172, 174–75 (Tex. Crim . App. 2007). This is what
Appellant argued to the court of appeals when asked for supplem ental briefing on the issue
of whether the offense of possession with intent to deliver qualifies as a predicate offense
for the offense of engaging in organized crim inal activity by com m ission.

       46
          Id. at 183 (Keller, P.J., concurring). Presiding Judge Keller went on to explain that
the indictm ent at issue in Teal was an indictm ent under the Texas Constitution because it at
least alleged a m isdem eanor offense. Id.

       47
         See, e.g., Teal, 238 S.W.3d at 183 (Keller, P.J., concurring); see also O’Brien, 544
S.W .3d at 393 (“W hen the State charges a defendant with engaging by com m ission, it m ust
                                                                      Walker — 20

predicate offense in this case amounted to a substantive defect in the

charging instrument, not the lack of an indictment altogether. Appellant

did not object to this defect prior to trial, so she cannot complain about

it now.        And while this substantive defect may have impermissibly

lowered the State’s burden at trial with regard to the greater offense,

conviction for the offense of possession with intent to deliver was still

authorized by the indictment.

                                           Remand

       Appellant argues that even if we determine that the court of appeals

can reform the judgment in this case we should nevertheless give the

court of appeals the opportunity to consider whether it satisfies the

necessary conditions for reformation. Appellant asks us to dispose of the

case the way we did initially did in Rabb v. State.48 There, the defendant

had been convicted of tampering with evidence, and the Court held that

the evidence was insufficient to support the conviction.49 We remanded

the case because the court of appeals did not have the benefit of our

decision in Thornton so that the court of appeals, which had not



show at least one com pleted offense.”).

       48
            Rabb v. State, 434 S.W .3d 613 (Tex. Crim . App. 2014).

       49
            Id. at 618.
                                                             Walker — 21

conducted a reformation analysis, could do so.50           We agree with

Appellant.

     Though the court of appeals did have the benefit of our decision in

Thornton, we had not previously decided the issue before us in this case.

Further, the court of appeals never conducted a reformation analysis

because it found the evidence to be legally sufficient to support the

offense of engaging in organize criminal activity. Having determined that

reformation is proper when the “lesser included” offense is authorized by

the indictment, the proper course of action is to remand the case for the

court of appeals to consider 1) whether the jury necessarily found all the

elements of that offense beyond a reasonable doubt, and 2) whether the

evidence was legally sufficient to support that offense.

                              Conclusion

     We agree with both Appellant and the State that the evidence was

legally insufficient to support the conviction for engaging in organized

criminal activity. Consequently, we reverse the court of appeals decision

in this regard.   We further hold that reformation to possession of a

controlled substance with the intent to deliver is authorized by the




     50
          Id.
                                                        Walker — 22

indictment. We remand the case to the court of appeals to determine if

the remaining conditions necessary for reformation are met.




Filed: February 26, 2020

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