*1 аppeal independently urging the defense both Smith and Tims. Because ployee immunity virtually jurisdiction to sovereign interlocutory, of would be we have no is represent the interests of attempting to now. See Richard- address Davis’s issues 801, governmental employer. Parker, non-party, his v. 903 S.W.2d son writ). employee personally is not 1995, Because no We dismiss App.-Dallas against judgment liable for a rendered jurisdiction. for want of cross-appeal capacity, employee him in official his of trial court’s denial We reverse the very defend may have little incentive to summary judgment on the issue of official against represent claims or to his those Davis immunity render employer’s vigorously. interests nothing by his claim for malicious take Furthermore, any adjudication of the in his individual prosecution against Smith sovereign immunity without the defеnse trial court’s deni- capacity. We affirm the sovereign having opportunity to be summary judgment on claim for al of an advi present and defend itself would be prosecution against malicious Smith sory opinion governmental on the unit’s capacity because Smith’s claim of official immunity or lack of it. It is well estab sovereign immunity request was a for re- that the courts of this state are not and, grant lief the trial court could not empowered give advisory opinions. also, advisory request opinion was a for an Parenthood, Inc., Patterson v. Planned County’s sovereign immunity. Ellis (Tex.1998). 439, Here, by 971 S.W.2d for remand the claim to the trial court urging sovereign immunity the defense of proceedings. further County being given oppor without Ellis an itself, tunity to raise the defense Smith justiciable
claimed interest a defense such, sovereign.
available As requested impermissible advisory
opinion from the trial court and is now effect,
requesting one from this Court.
Smith, by asserting sovereign immunity, urged a defense on which trial court HICKS, Appellant, James Earl grant could party not relief because the v. defense, County, entitled to raise the Ellis Texas, Appellee. STATE Copeland before court. See Boone, 55, (Tex.App.-San No. 10-98-203-CR. 1993, (there w.o.j.) Antonio writ dism’d Texas, Court of immunity immunity than official other Waco. applies governmental employees).3 independently, Because Smith could not 21, April only derivatively, urge protections Granting Reheаring Opinion sovereign immunity, the trial court did 18, 1999. Aug. refusing grant not err in Smith sum mary capacity. in his official appeal,
In addition to Smith’s brought cross-appeal contesting
Davis summary judg granting
the trial court’s brought against
ment on the other claims w.o.j.) (sovereign immunity applied em- Liberty Sharp, 874 3. But see Mut. Ins. Co. v. (Tex.App.-Austin govern- writ ployees independently of their sued Avalos, denied); employer). Gonzalez ment (Tex.App.-El writ dism’d Paso *2 Waco, M. for Hurley, appellant.
John Segrest, Atty., Dist. John W. Crim. Lau- Alaniz, Atty., for appellee. ra M. Dist. DAVIS, Before Chief Justice Justice VANCE, and GRAY. Justice OPINION VANCE, BILL Justicе. sen-
James Hicks was convicted of and for with a child. His tenced asserts issue appeal single for review: conviction, judgment, Are the and sentence where trial court void dismissed alleging count of the indictment with a child to trial? We will answer question “yes,” but we will affirm the judgment.
PROCEDURAL FACTS 4,1996, September indict- On for the of sexual offenses assault (count one) child (count two). Tex. Ann. Pen.Code (Vernon 22.011(a)(2) 21.11(a), 1994 & §§ On the court Supp.1999). October dismissing two entered order count argues that Hicks waived day, next that same prejudice.1 On lack of any about the court’s complaint one plea Hicks entered the indict count two of recommendation of ten plea based on a counts and by entering plea to both years’ probation. On ment November agree- quash by failing to file a motion court informed Hicks *3 in an indict Although not be defects recommendation would indictment. ment and waived, lack of complete may and allowed Hicks to withdraw be followed ment subject not to waiver. proceeded The case indictment is guilty plea. his a valid State, 471, 18, 480 original The indict- 902 S.W.2d May trial on Cook v. counts, ment, read to resulted containing both was The dismissal Crim.App.1995). objection. jury ac- with jury charging The instrument the lack of a trial court of sexual assault but сonvict- two. ‘When quitted regard to count indecency jurisdiction with a child. He now over a crimi empowered with the conviction is void be- a motion to dismiss contends nal case sustains is, law, charging indictment, instru- proper person cause there was no accused against of discharged ment on which he could be convicted from the accusation Garcia, 787, agree that the indecency with a сhild. We 927 S.W.2d parte him.” Ex (cit 1996, pet.) cannot be based on count two of (Tex.App. no 789 — Austin 524, Dial, the indictment but affirm the 528 ing v. Garcia convicting a child (Tex.Crim.App.1980) (orig.proceeding)). Hicks of with dismissed, it offense of is lesser-included indictment is there After the against count one. the accused and pending no case remaining in the dismiss no Therefore, the court did not ing court. Id. DISMISSAL jurisdiction over count two of the have that, Hicks asserts because the State and a conviction based on count indictment waived count two of the indictment and the However, inquiry our does two is void. it, court dismissed the court did not have not end here. Therefore, jurisdiction over that count. says, any that count is conviction based on Although find that the conviction we argues first void. waiver void, will deter- based on count two is part plea count was of a mine if thеre is evidence court, rejected by bargain which was child” as a “indecency with a conviction for plea rejected, bargain and because the offense of “sexual assault posi parties placed were in the same child,” in count charged which was of a they making plea tion as were State, v. 726 Cunningham one. See State, 817 agreement. See Heath v. 151, (Tex.Crim.App.1987) 153 S.W.2d 335, (Tex.Crim.App.1991); S.W.2d (whether indecency with a child is lesser- Shannon is deter- included offense of sexual assault (Tex.Crim.App.1986); Tate basis). mined on a case case (Tex.App. — Waco a child person A commits with curiam). Although recognize pet.) (per if, years than 17 younger a child that the waiver and the recommenda spouse, not his he: nothing in day, filed on the same tion were (1) contact with the engages in sexual indicates that the waiver was the record child; or court’s order plea bargain. result of a (2) of his any part anus or exposes dismissing count two of the knowing present, the child is unconditionally. genitals, does so right two. pro- to count 1. The State filed a notice that it would one, effectivelywaiving its ceed on concurring opinion, gratify Crim.App.1998). with intent to arouse or the sexu- any person. Judge appellate al desire of noted that an court Baird authority only has this when 21.11(a). § Count one Tex. Ann. Pen.Code charge.- authorized to convict of the lesser alleges of the indictment that the sexual (Baird, concurring). Id. at 28-29 J. February occurred “on or about assault 1994.” The evidence on which the State Bigley, was instructed on single inci- relied at trial was limited to a possession grams both least of other inci- dent on that date. Evidence рossession of at methamphetamine and prior rela- dents was offered to show the grams grams but than 400 least 28 less victim, tionship between Hicks and the at 27. The methamphetamine. Id. charged as incidents. offense, greater convicted *4 Pam, victim, alleged the testified that appeals court of found no evidence Hicks, step-grandfather, her took her to finding grams of 400 or more. support a regular school on a basis. She testified judgment to show The court reformed February that on he arrived to for the lesser offense. a conviction school, take her to walked into her bed- affirming, Appeals the Court of Criminal off, room, took her clothes and forced her jury that the had been instructed on noted him. Pam testified that to have sex with necessarily the lesser offense and had was not the first time that Hicks this Biglеy possessed found that least assaulted her.2 Id. grams. voluntary Hicks made a statement to Limas, Corpus Christi Court held police. That statement was read into evi- that, request failed to when State by Detective Ervin of the dence Stuart offense, jeopardy on the lesser instruction police department. In his state- Waco judgment. reformation of the would bar ment, had admitted he (Tex. State, Limas v. vagina, pends against his Pam’s “rubbed” ref'd.)( 1996,pet. App. Corpus Christi citi — put penis [his] but stated that he “never (Baird, J., at 28-29 ng Bigley, 865 S.W.2d vagina.” that he inside of her He stated strictly follow concurring)).4 Were we top “moved back and forth on of Pamela.” would no reasoning, line of have “having sex” Although Pam testified judgment as a con authority to affirm the times, chose with Hicks several offense of for the lesser-included viction not to convict Hicks on count one.3 the court indecency with a child because on it as a lesser failed to instruct offense. OFFENSE LESSER-INCLUDED Nevertheless, was instructed on of Criminal estab- The Court indecency a child all the elements of with that, v. State some of that offense. guilty and found Hicks circumstances, appeals has the a court Bigley. the rationale of judgment to We will follow authority to reform a convict recognize at 27. Bigley, 865 S.W.2d а offense. the accused of lesser-included already a con- State, judgment reflects Bigley v. ("While appellant testimony regarding there was evidence a “sexual 2. There was Although revealing the fact included offense of assault exam.” was of the lesser in fact had sexual intercourse that Pam had in an amount less that possession of cocaine earlier, the exam did not show the somеtime charge the grams, court did not the trial or otherwise corroborate presence of semen Having concluded jury on that offense.... allegations. her the evidence is insufficient possession grams of 28 or more for meant prosecutor asked Pam what she 3. The cocaine, judg- other we must enter the put by "having responded, "he sex.” She charge: the trial court's ment authorized my vagina.” penis in acquittal.”). Thorpe v. 4. See also pet.) (Tex.App. 552 n. 1 —Austin indecency with a Her v. we also hold that we are viction for the offense of Thus, judgment sup- child. because the evidence to reform jury’s conviction for with a ports finding guilt of indecen- to reflect a child, offense, cy offense of count a lesser-included child as Thus, grounds will reverse the conviction. we affirm the on the one. that the correct was rendered. Furthermore, because the assessed DISMISSAL offense, punishment Hick’s for the lesser that, Hicks asserts because
we find no reason to remand for new State waived count two of the indictment punishment hearing. it, and the court dismissed the court did that count. not have OPINION ON REHEARING Therefore, says, any conviction based was James Hicks convicted and sen- on that is void. The first count tenced for child. His argues that waiver of the appeal single asserts issue for review: part plea bargain of a which was conviction, judgment, Are the and sentence court, rejected by void where the trial court had dismissed bargain rejected, parties were *5 alleging the count of the indictment inde- in placed position they in the same as were cency with a child to trial? willWe prior making plea agreement. to the Sеe question “yes.” answer this (Tex. State, 385, Heath v. 817 S.W.2d 340 State, Crim.App.1991); Shannon 708 PROCEDURAL FACTS 850, (Tex.Crim.App.1986); S.W.2d 852 4,1996, September On Hicks indict- State, 496, Tate v. 497 921 S.W.2d ed for the offenses of sexual assault of a curiam). 1996, App. pet.) (per — Waco one) (count child and with a Although recognize that the notice and two). (count Tex Ann. Pen.Code plea recommendation were filed on the 21.11(a), 22.011(a)(2) (Vernon §§ 1994 & day, in indicates nothing same the record Suрp.1999). On October the court plea that the notice was a result of entered an order dismissing count two dismissing bargain. The court’s order prejudice.1 without day, On that same count two of the indictment does so uncon plea Hicks entered a to count one ditionally. plea based on a recommendation of ten 20, years’ probation. On November argues next that The State plea agree- court informed Hicks that the dismissing court’s order count two was ment and recommendation not be would ineffective because the indictment was not followed and allowed Hicks to withdraw changed Eastep on its face. See guilty plea. proceeded The to case 130, (Tex.Crim.App.1997). 941 S.W.2d 18,1998. May original trial on The indict- necessary Although this is for an amend ment, counts, containing both was read to effective, mеnt to indictment to be objection. ac- have found no and the cites State quitted Hicks sexual assault but convict- proposition none for the that a count can child. He now striking literally not be dismissed without contends conviction is void be- it from the face of the indictment. The proper charging cause there was no instru- court’s order effectuated dismissal. ment on which he could be convicted of аgree with a child. that a further asserts that any complaint conviction cannot be based on count two of Hicks waived about jurisdiction count two light the indictment. of the Court court’s lack of over by to entering in of the indictment Appeals’ Criminal recent decision Col- proceed on count one. 1. The State had filed a notice that it would room, off, by failing both counts motion and file a took her clothes and forced her quash Although the indictment. defects him. have sex with Pam testified waived, may be com indictment not the first that Hicks time plete lack of a indictment valid is not sub assaulted her.2 ject to waiver. Cook v. voluntary Hicks made statement (Tex.Crim.App.1995). The dis police. That statement was read into evi- charging missal in the lack of a resulted by dence Detective Stuart Ervin of the regard instrument with to count two. dеpartment. Waco police his state- empowered juris “When trial court ment, admitted had over diction a criminal case sustains a mo penis against vagina, “rubbed” his Pam’s indictment, tion to person dismiss penis that he “never put stated [his] is, law, discharged accused from the vagina.” inside of her He stated that he parte accusation him.” Ex against Gar and forth on top “moved back of Pamela.” cia, (Tex.App . —Aus Although “having Pam testified to sex” Dial, (citing tin no pet.) Garcia v. times, with Hicks several chose (Tex.Crim.App.1980) not to Hicks on count convict one.3 (orig.proceeding)). After the dismissed, pending against there is no case Hicks asserts evidence estab- jurisdiction remaining the accused and no one two offenses: testified Therefore, in the dismissing court. Id. place Pam which said took her bed she court did not have penetration, involved and another one two of the indictment and by Hicks confessed to which he said took based on count is void. two place couch and on the did not involve *6 penetration. suggests The State WAS TRIED FOR HICKS ONE it evidence on which relied at trial was TWO? OFFENSE OR single occurring limited to a incident on person A commits with a child February Pam’s 24. bed on Evidence if, younger years with than and was, other it to says, incidents offered spouse, not his he: relationship show the between Hicks (1) engages in sexual contact with the victim, “charged and not as incidents.” child; or alleged The that counts indictment both (2) exposes any part his anus or of his one occurred on or about Febru- and two genitals, knowing the child present, ary gratify with intent to arouse or the sexu- shows that record State any person. al desire of two attempting prove to offenses. Unfor- 21.11(a). § Count one Tex. Pen.Code Ann. by tunately, prosecutors statements alleges that the sexual clarify rather it. confuse the issue than February assault “on or about occurred prosecutor example, For told 1994.” in voir dire: Pam, victim, alleged testified charged in this defendant case is Hicks, her to step-grandfather, took her crimes, In- Sexual and with two Assault on a basis. regular schоol She testified Child, decency they and February that on to arrived —we school, they at the alleged to walked into bed- have occurred take her her testimony regarding prosecutor 3. The asked Pam what she meant 2. There was a "sexual Although revealing put the fact by "having responded, assault exam.” She "he sex.” Pam had sexual had in fact intercourse penis my vagina.” in earlier, sometime the exаm did not show the presence of semen or otherwise corroborate allegations. her child,” in crimes, charged time; of a which was but al assault separate same two and, so, if whether we have count one time.... committed the same to authority to reform the show argument: And in final for the lesser offense. See a conviction front, you right you have up And I’ll tell 151, 153 Cunningham v. reach two There are two verdicts. (whether (Tex.Crim.App.1987) forms_ sepa- Those are two verdict offense with a child is in rate offenses committed the same by is determined on case sexual assault therefore, and, episode, you criminal basis). case a verdict each one. have to reach intend- Regardless of whether State verdicts, they can They can be different alleged by Pam or the the incident verdict, they be the sаme each stand by Hicks to incident confessed alone themselves. indictment, the evidence Count One of jury could have chosen is such that the Pam with intent believe Hicks touched And, essence, you she has told what desire but gratify arouse or his own sexual penetrated that he includes the elements occurred. penetration disbelieved that So, her, you Indecency. if believe Thus, supported would hаve the evidence you’re going to find him of both verdict on the lesser offense of Two, Count One and Count child, had the been so instruct- Count One contains the same elements ed. you as Count Two. If believe his version estab- The Court Criminal facts, him perhaps you’d find that, in some Bigley you guilty on Count One and find circumstances, appeals a court of has guilty on Count Two. to reform a to convict Pam, witness, complaining testified to a lesser-included offense. the accused of Through testimony, one incident. her 26, 27 State also other incidents under offered concurring opinion, Crim.App.1993). In a previous article 38.37 as relevant Judge appel- noted his belief that an Baird subsequent relationship between authority only when the late court has this Pam, including Hicks and an incident simi- to convict of the lesser jury was authorized *7 lar to onе in the Hicks’ confession. (Baird, Tex. charge. at J. concur- Id. 28-29 (Vernon Ann. art. 38.37 ring). Code Crim. Proo. Supp.1999). Ervin testi- Detective Stuart jury on Bigley, the was instructed “rubbing” that fied Hicks confessed to possession grams of at least 400 both Pam on couch. the possession of at methamphetamine original alleged two of- grams of grams but less than 400 least 28 fenses; argued could the State that Hicks jury at 27. The methamphetamine. Id. offenses; separate be convicted of two the offense, greater convicted for two of- charge authorized appeals the court of found no evidence Thus, tried fenses. we find that Hicks was more. finding grams of 400 or separate for two offenses. to show The court reformed offense.
a conviction for lesser Appeals affirming, the Court of Criminal OFFENSE LESSER-INCLUDED jury had instructed on been noted we have found that Because necessarily offense and had the lesser two, court had no Bigley possessed at least 28 found that However, cannot we the conviction stand. grams. Id. evidence to now consider whether there is recently Appeals “indecency with a The Court Criminal support a conviction for of a court directly question of “sexu- confronted child” as a lesser-included offense authority appeals’ judg- to reform the ment to reflect conviction for a lesser- ROBERTS, George Eugene Appellant, jury included offense when the was not instructed on the and the lesser offense jury State did not seek have the so Gayle ROBERTS, Appellee. Linda
instructed. Collier 1999). (Tex.Crim.App. No. 08-97-00092-CV. Court that determined we are without Texas, Court of authority unless the for a less- instruction El actually given er-included offense is or the Paso. requested the it instruction and was June 1999. denied. Id. Collier, opinion would
Prior to
have determined we had the judgment, fact reform based on the jury was instructed on the ele-
ments of with a child and fact guilty of Although
found him it.
charge given was not as a in- offense,
lesser-included was
structed on all the elements and found of that Hicks
offense.
Nevertheless, though even the evidence
supports jury’s guilt of inde- finding of child,
cency lesser-included of- of the crime for
fense which tried,
properly indicted and we cannot af-
firm the charged with a child as a assault. of sexual offense
Thus, grant rehearing, motion for conviction,
reverse the and vacate the R.
judgment of the trial court. See Tex. App. 43.2(e).4 P. dissenting.
Justice GRAY *8 GRAY, Justice, dissenting.
TOM agree analysis I
Because with the I
original opinion, dissent. whether could be tried for the We note that count two of the indictment ion on prejudice prior was dismissed alleged two. offense opin- jeopardy. express attachment