


[Jdgmt withdrawn & replaced
by jdgmt of 8-18-99]




IN THE
TENTH COURT OF APPEALS
 

No. 10-98-203-CR

        JAMES EARL HICKS,
                                                                              Appellant
        v.

        THE STATE OF TEXAS,
                                                                              Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 96-603-C
                                                                                                                

O P I N I O N
                                                                                                                

          James Hicks was convicted of and sentenced for indecency with a child.  His appeal asserts
a single issue for review: Are the conviction, judgment, and sentence void where the trial court
dismissed the count of the indictment alleging indecency with a child prior to trial?  We will
answer this question “yes,” but we will affirm the judgment.
PROCEDURAL FACTS
          On September 4, 1996, Hicks was indicted for the offenses of sexual assault of a child
(count one) and indecency with a child (count two).  Tex. Pen. Code Ann. §§ 21.11(a),
22.011(a)(2) (Vernon 1994 & Supp. 1999).  On October 2, 1997, the court entered an order
dismissing count two without prejudice.
  On that same day, Hicks entered a plea of guilty to count
one based on a plea recommendation of ten years’ probation.  On November 20, the court
informed Hicks that the plea agreement and recommendation would not be followed and allowed
Hicks to withdraw his guilty plea.  The case proceeded to trial on May 18, 1998.  The original
indictment, containing both counts, was read to the jury without objection.  The jury acquitted
Hicks of sexual assault but convicted him of indecency with a child.  He now contends that the
conviction is void because there was no proper charging instrument on which he could be
convicted of indecency with a child.  We agree that the conviction cannot be based on count two
of the indictment but affirm the judgment convicting Hicks of indecency with a child because it
is a lesser-included offense of count one.
DISMISSAL
          Hicks asserts that, because the State waived count two of the indictment and the court
dismissed it, the court did not have jurisdiction over that count.  Therefore, he says, any
conviction based on that count is void.  The State first argues that waiver of the indecency count
was part of a plea bargain which was rejected by the court, and because the plea bargain was
rejected, the parties were placed in the same position as they were prior to making the plea
agreement.  See Heath v. State, 817 S.W.2d 335, 340 (Tex. Crim. App. 1991); Shannon v. State,
708 S.W.2d 850, 852 (Tex. Crim. App. 1986); Tate v. State, 921 S.W.2d 496, 497 (Tex.
App.—Waco 1996, no pet.) (per curiam).  Although we recognize that the waiver and the plea
recommendation were filed on the same day, nothing in the record indicates that the waiver was
a result of a plea bargain.  The court’s order dismissing count two of the indictment does so
unconditionally.
          The State next argues that Hicks waived any complaint about the court’s lack of jurisdiction
over count two of the indictment by entering a plea to both counts and by failing to file a motion
to quash the indictment.  Although defects in an indictment may be waived, the complete lack of
a valid indictment is not subject to waiver.  Cook v. State, 902 S.W.2d 471, 480 (Tex. Crim. App.
1995).  The dismissal resulted in the lack of a charging instrument with regard to count two. 
“When a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss
the indictment, the person accused is, in law, discharged from the accusation against him.”  Ex
parte Garcia, 927 S.W.2d 787, 789 (Tex. App.—Austin 1996, no pet.) (citing Garcia v. Dial, 596
S.W.2d 524, 528 (Tex. Crim. App. 1980) (orig. proceeding)).  After the indictment is dismissed,
there is no case pending against the accused and no jurisdiction remaining in the dismissing court. 
Id.  Therefore, the court did not have jurisdiction over count two of the indictment and a
conviction based on count two is void.  However, our inquiry does not end here.
          Although we find that the conviction based on count two is void, we will determine if there
is evidence to support the conviction for “indecency with a child” as a lesser-included offense of
“sexual assault of a child,” which was charged in count one.  See Cunningham v. State, 726
S.W.2d 151, 153 (Tex. Crim. App. 1987) (whether indecency with a child is a lesser-included
offense of sexual assault is determined on a case by case basis).  
          A person commits indecency with a child if, with a child younger than 17 years and not
his spouse, he: 
          (1) engages in sexual contact with the child; or
(2) exposes his anus or any part of his genitals, knowing the child is present, with intent
to arouse or gratify the sexual desire of any person. 

Tex. Pen. Code Ann. § 21.11(a).  Count one of the indictment alleges that the sexual assault
occurred “on or about February 24, 1994.”  The evidence on which the State relied at trial was
limited to a single incident on that date.  Evidence of other incidents was offered to show the prior
relationship between Hicks and the victim, not as charged incidents.  
          Pam, the alleged victim, testified that Hicks, her step-grandfather, took her to school on
a regular basis.  She testified that on February 24, 1994, he arrived to take her to school, walked
into her bedroom, took her clothes off, and forced her to have sex with him.  Pam testified that
this was not the first time that Hicks assaulted her.

          Hicks made a voluntary statement to the police.  That statement was read into evidence by
Detective Stuart Ervin of the Waco police department.  In his statement, Hicks admitted that he
had “rubbed” his penis against Pam’s vagina, but stated that he “never put [his] penis inside of
her vagina.”  He stated that he “moved back and forth on top of Pamela.”  Although Pam testified
to “having sex” with Hicks several times, the jury chose not to convict Hicks on count one.
 
LESSER-INCLUDED OFFENSE
          The Court of Criminal Appeals established in Bigley v. State that, in some circumstances,
a court of appeals has the authority to reform a judgment to convict the accused of a lesser-included offense.  Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993).  In a concurring
opinion, Judge Baird noted that an appellate court has this authority only when the jury was
authorized to convict of the lesser charge.  Id. at 28-29 (Baird, J. concurring). 
          In Bigley, the jury was instructed on both possession of at least 400 grams of
methamphetamine and possession of at least 28 grams but less than 400 grams of
methamphetamine.  Id. at 27.  The jury convicted Bigley of the greater offense, but the court of
appeals found no evidence to support a finding of 400 grams or more.  The court reformed the
judgment to show a conviction for the lesser offense.  In affirming, the Court of Criminal Appeals
noted that the jury had been instructed on the lesser offense and had necessarily found that Bigley
possessed at least 28 grams.  Id. 
          In Limas, the Corpus Christi Court held that, when the State failed to request an instruction
on the lesser offense, jeopardy would bar reformation of the judgment.  Limas v. State, 941
S.W.2d 198, 201 (Tex. App.—Corpus Christi 1996, pet. ref’d.) (citing Bigley, 865 S.W.2d at 28-29 (Baird, J., concurring)).
  Were we to strictly follow this line of reasoning, we would have no
authority to affirm the judgment as a conviction for the lesser-included offense of indecency with
a child because the court failed to instruct on it as a lesser offense.  Nevertheless, the jury was
instructed on all the elements of indecency with a child and found Hicks guilty of that offense.  
          We will follow the rationale of Bigley.  Bigley, 865 S.W.2d at 27.  We recognize that the
judgment already reflects a conviction for the offense of indecency with a child.  Thus, because
the evidence supports the jury’s finding of guilt of indecency with a child, a lesser-included
offense, we affirm the judgment on the grounds that the correct judgment was rendered. 
Furthermore, because the jury assessed Hick’s punishment for the lesser offense, we find no
reason to remand for a new punishment hearing.

                                                                                 BILL VANCE
                                                                                 Justice


Before Chief Justice Davis,
          Justice Vance, and
          Justice Gray
Affirmed 
Opinion delivered and filed April 21, 1999
Publish
[Jdgmt withdrawn & replaced by jdgmt
 of 8-18-99]
