¶1concurring.
¶2I concur in reversing the conviction and remanding this cause for a new trial because there is no question that the indictment failed to charge the appellant with aggravated rape of a child, as that offense is defined in Texas law.
¶3This is a judgment which should not have reached the appellate level burdened with the infirmity which requires us to send the case back for new trial. Appellant’s appointed counsel pointed out to the court and the State’s attorney, repeatedly and insistently, the specific defect in the indictment; but the State successfully defended its indictment and assured the trial court that it was legally sufficient to charge aggravated rape. Since the indictment did not charge the appellant with aggravated rape, as appellant’s counsel pointed out, reindicting to allege the omitted elements of aggravation would have cured the defect and avoided the reversible error which occurred. That course of action would have occasioned minimal delay and expense, especially if the defective state of the indictment had been recognized when appellant first raised it, in his pretrial motion to quash. Alternatively, without reindicting, the jury could have been instructed on the offense of rape of a child, using only the allegations of the indictment, rather than on the offense of aggravated rape of a child, in terms which the indictment did not allege. That course of action would have resulted in a conviction for a felony one grade lower than that intended by the State, but no delay or additional expense would have been incurred; and since appellant was convicted as a habitual violator, he could have been assessed the same sentence after conviction for either felony offense. Either alternative would have given finality to the judgment of conviction and avoided the substantial delay, expense, and inconvenience which has resulted from the State’s insistence upon going forward to obtain an aggrava*783ted rape conviction upon an indictment which lacked necessary elements of aggravation, even after that shortcoming was pointed out repeatedly by defense counsel before and during trial.
¶4Appellant complains in ground of error number three that the trial court unduly restricted his cross-examination of the complaining witness. An examination of the statement of facts, however, reveals that appellant’s assertion is without merit. In light of our remand for a new trial, I would specifically overrule appellant’s third ground of error.