Harris v. State

485 S.W.2d 284, 1972 Tex. Crim. App. LEXIS 2618

Opinions

OPINION

DAVIS, Commissioner.

Appellant was convicted for the offense of murder. Punishment was assessed at death. This Court affirmed the conviction on September 23, 1970. Harris v. State, 457 S.W.2d 903. The United States Supreme Court granted appellant’s petition for certiorari, and on June 28, 1971, ordered that the “Judgment, insofar as it imposes the death sentence, reversed and case remanded to the Court of Criminal Appeals of Texas for further proceedings.” Harris v. Texas, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1972).

Commutation of sentence by the Governor has not been sought or granted in the instant case. See Whan v. State, Tex.Cr.App., 485 S.W.2d 275 (1972).

This Court is without authority to either pass sentence or reduce the punishment assessed by a jury. Turner v. State, 485 S.W.2d 282 (1972); Ocker v. State, Tex.Cr.App., 477 S.W.2d 288. We cannot remand solely on the issue of punishment where punishment was assessed by the jury. Ellison v. State, Tex.Cr.App., 432 S.W.2d 955.

The United States Supreme Court having found that punishment was erroneously imposed in this cause, its status is the same as if the jury had been unable to agree on a verdict. Turner v. State, supra; Ocker v. State, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.