Johnson v. State

938 S.W.2d 65, 1997 Tex. Crim. App. LEXIS 4, 1997 WL 33092

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 1997
• Docket: No. 1435-96
• Status: Published

Opinion

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of aggravated sexual assault, sexual assault, and two counts of .incest. The jury sentenced him to thirty-five years, twenty years, ten years, and ten years of confinement for the respective offenses. On appeal, Appellant contended the trial court erred by admitting testimony of a drug abuse counselor in violation of the privilege contained in Tex.R.Crim.Evid. 510. The Court of Appeals agreed and reversed the convictions. Johnson v. State, 926 S.W.2d 334 (Tex.App.—Fort Worth 1996).

In its appellate brief, the State argued that the complainant’s mother, who was also Appellant’s wife, previously testified without objection about the meeting with the drug abuse counselor and that when the same evidence is presented elsewhere during trial without objection, no reversible error exists, citing McFarland v. State, 845 S.W.2d 824, 840 (Tex.Cr.App.1992). The State’s first ground for review, in the petition for discretionary review filed by the District Attorney, contends the Court of Appeals erred in not addressing this argument. We agree. A court of appeals must address every issue raised and necessary to the final disposition of the ease. See Tex.RApp.Pro. 90(a); Cardwell v. State, 881 S.W.2d 712 (Tex.Cr.App.1994); Ikner v. State, 848 S.W.2d 161 (Tex.Cr.App.1993); King v. State, 848 S.W.2d 142 (Tex.Cr.App.1993).

We grant ground one of the State’s (District Attorney’s) petition for discretionary review. The judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for action consistent with this opinion. The remaining grounds and the State Prosecuting Attorney’s petition for discretionary review are dismissed without prejudice.