PD-0399-17 08/23/2017
“Can a conviction for a charged, but nonexistent, offense be reformed to a subsumed and proven offense that does exist?”
The State indicted Walker for engaging in organized criminal activity (EOCA) to possess a controlled substance with intent to deliver, but that is not a predicate offense for EOCA. The court of appeals was the first to notice the error and asked for supplemental briefing. Walker argued the evidence was insufficient to convict him of EOCA, but the court of appeals rejected his specific arguments, finding there was sufficient evidence of her possession with intent to deliver and intent to participate in a criminal combination. The court reversed the case on jury charge error because the charge permitted an unauthorized EOCA conviction and remanded for a retrial without specifying an offense.
The State argues that remand for a retrial on EOCA is inappropriate; the evidence will never be sufficient to prove the nonexistent offense charged. Because the evidence of possession with intent to deliver was sufficient, however, the court of appeals should have reformed the judgment to that offense and remanded for resentencing.
