Babineaux v. State

803 S.W.2d 301, 1990 Tex. Crim. App. LEXIS 196, 1990 WL 182412

• Court: Court of Criminal Appeals of Texas
• Decided: November 28, 1990
• Docket: No. 1416-89
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted by a jury for the offense of murder, V.T.C.A., Penal Code § 19.02(a)(1). His punishment was assessed at twenty years confinement in the Texas Department of Criminal Justice, Institutional Division. On direct appeal, the Court of Appeals affirmed his conviction in a published opinion, Babineaux v. State, 777 S.W.2d 724 (Tex.App. — Beaumont 1989). This Court granted review to determine: (1) whether the Court of Appeals erred in finding that reversible error was not committed by the trial court in excluding evidence that the deceased was in possession of marihuana at the time of the offense; and, (2) whether the Court of Appeals erred in holding that the trial court properly refused to grant appellant’s request that he be allowed to present to the jury evidence that had been judicially found to be exculpatory indicating that the deceased was in possession of marihuana at the time of the alleged offense.

After careful consideration of the record in this case and of briefs filed by both parties, we find that appellant’s petition was improvidently granted. Just as in the cases where we refuse to grant a petition for discretionary review, our decision that such a petition was improvidently granted should not be construed as approval by this Court of either language or reasoning by the Court of Appeals in reaching its decision. See Barreda v. State, 760 S.W.2d 1 (Tex.Cr.App.1988).

Appellant’s petition for discretionary review is hereby dismissed.

CLINTON, J., dissents. BERCHELMANN and STURNS, JJ., not participating.