Gonzales v. State

762 S.W.2d 583, 1988 Tex. Crim. App. LEXIS 246, 1988 WL 111966

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of voluntary manslaughter. V.T.C.A. Penal Code, Sec. 19.04. The jury assessed punishment at 17 years imprisonment. The Court of Appeals reversed appellant’s conviction in a published opinion. Gonzales v. State, 733 S.W.2d 589 (Tex.App. — San Antonio 1987). Appellant raised two points of error on direct appeal. He urged that the trial court committed reversible error by refusing to submit jury instructions regarding a lesser included offense and on the defensive issue of self defense. The appeals court agreed with appellant in both instances and remanded the case for a new trial. The State then filed a petition for discretionary review with this Court which we granted to review only that part of the Court of Appeals’ decision which held that the trial court committed reversible error in refusing to submit appellant’s requested instruction on the lesser included offense of aggravated assault.

We now find that our decision to grant the state’s petition for discretionary review in order to make the determination whether the Court of Appeals erred in their holding was improvident. See Tex.Rules App.Pro. R. 202(k) However, neither our initial grant of the state’s petition nor our action today in refusing that petition should be taken as approval of the reasoning or the decision of the Court of Appeals in this cause.

With this understanding, we refuse the state’s petition for discretionary review.

It is so ordered.

CAMPBELL, J., concurs in result. MILLER, J., not participating.