DUDLEY v. STATE (2010)

OPINION

Appellant was charged with aggravated sexual assault of a child.   The trial court granted the State's request for a jury charge on the lesser-included offense of indecency with a child.   Appellant pleaded no contest to indecency with a child.

On appeal, Appellant argued that the trial court erred in submitting that charge because indecency with a child could never be a lesser-included offense of aggravated sexual assault of a child.   The Court of Appeals agreed and reversed the conviction, relying on Hall v. State, 225 S.W.3d 524 (Tex.Crim.App.2007).  Dudley v. State, --- S.W.3d ---- (Tex.App.-Dallas 2008).

 The State filed a petition for discretionary review contending that Hall should not apply to guilty pleas and that Appellant is estopped from challenging his conviction due to his no contest plea.   We recently held in Murray v. State, --- S.W.3d ---- (Tex.Crim.App.2009), that Hall applies to cases involving guilty pleas.   We also held that a defendant who pleaded guilty, but then moved to withdraw his plea before the court accepted it, was not estopped from complaining on appeal.   Additionally, in Evans v. State, 299 S.W.3d 138 (Tex.Crim.App.2009), we held that indecency with a child can be a lesser-included offense of aggravated sexual assault of a child.

The Court of Appeals did not have the benefit of our opinions in Evans and Murray.   Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinions in Evans and Murray.

PER CURIAM.