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 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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