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


                                JULIO CESAR PUENTE, Appellant

                                                   v.

                                      THE STATE OF TEXAS

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

          HERVEY , J., filed a concurring opinion in which KELLER , P.J., and KEASLER , J.,
joined.

                                    CONCURRING OPINION


          I join Judge Keasler’s concurring opinion and agree that the court of appeals should not have

even addressed the merits of appellant’s claim. I would find it unnecessary to decide whether the

indictment in this case was amended also because, even if it were amended, appellant engaged in a

course of conduct that had the effect of waiving any requirement of an allegation in the indictment

of “a child younger than fourteen years of age.” See Joseph v. State, 309 S.W.3d 20, 24-26 (Tex.

Crim. App. 2010) (in absence of express and explicit waiver of Miranda rights, totality of
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circumstances may show voluntary waiver of these rights); Trejo v. State, 280 S.W.3d 258, 263 (Tex.

Crim. App. 2009) (Keller, P.J., concurring in the judgment) (“unless waived, an indictment is

necessary to vest the trial court with personal jurisdiction in a felony case”).

       With these comments, I concur in the Court’s judgment.



                                                               Hervey, J.

Filed: September 22, 2010
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