COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00458-CV
IN THE MATTER OF R.W.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant R.W. challenges the juvenile court’s adjudication that he
engaged in delinquent conduct by committing aggravated sexual assault of a
child and indecency with a child by contact. We sustain R.W.’s first point, modify
the juvenile court’s judgment of delinquency, and affirm it as modified. See Tex.
R. App. P. 43.2(b).
1
See Tex. R. App. P. 47.4.
On August 1, 2012, the State filed a petition alleging that R.W., who was
fifteen years old, had engaged in delinquent conduct. See Tex. Fam. Code Ann.
§ 53.04 (West 2008). The petition was based on a March 17, 2012 incident
between R.W. and his seven-year-old cousin, A.H., where R.W. forced A.H. to
have anal sex. The State’s delinquent-conduct allegations included one
allegation of aggravated sexual assault of a child and two allegations of
indecency with a child by contact. See id. § 51.03(a)(1) (West Supp. 2012); Tex.
Penal Code Ann. § 21.11 (West 2011), § 22.021 (West Supp. 2012). All of the
State’s allegations arose out of the March 17 incident.
R.W. waived a jury and agreed to proceed before a juvenile-court referee.
See Tex. Fam. Code Ann. § 51.09 (West 2008), § 54.10 (West Supp. 2012).
After an adjudication hearing, the referee recommended that the aggravated-
sexual-assault allegation and one of the indecency-with-a-child allegations be
found true and that R.W. be adjudged to have engaged in delinquent conduct.
See id. § 54.03 (West Supp. 2012). The juvenile-court judge adopted the
referee’s recommendations. See id. § 54.10(d).
After a subsequent disposition hearing, the referee recommended that
R.W. be placed on probation for two years, which the judge adopted. See id.
§§ 54.04, 54.0405 (West Supp. 2012). R.W. filed a notice of appeal and a
motion for new trial, which was overruled by operation of law. See Tex. R. Civ.
P. 329b(c); Tex. R. App. P. 26.1(a).
2
On appeal, R.W. argues that (1) the adjudication based on both indecency
with a child and aggravated sexual assault violated the Double Jeopardy Clause
because they arose from the same course of conduct and (2) the evidence was
insufficient to support the adjudication based on indecency with a child. The
State concedes that the adjudication based on aggravated sexual assault as well
as on the lesser-included offense of indecency with a child arising out of the
same conduct violated the Double Jeopardy Clause. Indeed, if the evidence at
trial shows only one instance of sexual contact, a conviction for aggravated
sexual assault along with a conviction for the lesser-included offense of
indecency with a child violates the prohibition against double jeopardy. See Ex
parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App. 2007); Patterson v. State, 152
S.W.3d 88, 92 (Tex. Crim. App. 2004); Ex parte Herron, 790 S.W.2d 623, 624
(Tex. Crim. App. 1990) (op. on reh’g). We sustain point one. 2
R.W. and the State agree that the appropriate remedy is to vacate the
adjudication of delinquent conduct based on indecency with a child by contact. 3
See Evans v. State, 299 S.W.3d 138, 141 (Tex. Crim. App. 2009). Therefore, we
modify the juvenile court’s judgment of delinquency to vacate that portion of the
judgment adjudging R.W. to have engaged in delinquent conduct based on
2
Because R.W.’s second point challenges the sufficiency of the evidence
to support the adjudication based on indecency with a child, which we now
vacate based on double jeopardy, we do not need to address point two. See
Tex. R. App. P. 47.1.
3
R.W. raises no challenges to the trial court placing him on probation.
3
indecency with a child by contact. As modified, we affirm the juvenile court’s
judgment of delinquency.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DELIVERED: September 5, 2013
4
in the Matter of R.W.
Combined Opinion