Gardner v. State

777 S.W.2d 717, 1989 Tex. Crim. App. LEXIS 171, 1989 WL 113203

Opinions

OPINION ON APPELLANT’S MOTION FOR REHEARING

PER CURIAM.

Our opinion on original submission is withdrawn.

The record reflects that after Roy Elvin Gardner, henceforth appellant, pled guilty to the charge of murder, the jury convicted him of that offense and assessed his punishment at fifty years’ confinement in the Department of Corrections. On direct appeal, the Fifth Court of Appeals affirmed. See Gardner v. State, 711 S.W.2d 278 (Tex.App.—Dallas 1986). We granted appellant’s petition for discretionary review in order to make the determination whether the trial court should have admitted evidence of the appellant’s victim’s previous conviction for murder.

We have now reconsidered appellant’s contention and the court of appeals disposition of the issue. Now, it appears that this Court’s decision to grant appellant’s petition for discretionary review was improvident. Therefore, appellant’s petition for discretionary review is hereby dismissed pursuant to Tex.R.App.Pro. Rule 202(k).

Our decision to withdraw our original opinion and dismiss appellant’s petition for discretionary review should not be interpreted to mean that this Court either endorses or adopts the reasoning employed by the court of appeals, or that this Court’s decision to now dismiss appellant’s petition has any precedential value. In summary, the Bench and Bar of this State should not assume that our action in this cause lends any authority to the opinion of the court of appeals. See Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983); Campbell v. State, 647 S.W.2d 660 (Tex.Cr.App.1983).

MILLER, J., concurs in the result. McCORMICK, P.J., and DUNCAN, J., dissent.