McHenry v. State

898 S.W.2d 300, 1995 Tex. Crim. App. LEXIS 38, 1995 WL 144228

Opinions

OPINION ON APPELLANTS PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with conspiracy to possess cocaine, alleged to have been committed on or about February 1, 1990. In July of 1990, he was convicted in a trial by jury; whereafter the jury assessed punishment at 99 years confinement and a $100,000 fine. In McHenry v. State, 823 S.W.2d 667 (Tex.App. — Dallas 1991), the court of appeals affirmed, but this Court granted appellant’s first petition for discretionary review and vacated the court of appeals’ judgment. McHenry v. State, 829 S.W.2d 803 (Tex.Cr.App.1992). We remanded the case to the court of appeals for further consideration in light of our decision in Ward v. State, 829 S.W.2d 787 (Tex.Cr.App.1992). On remand, the court of appeals reaffirmed appellant’s conviction. McHenry v. State, 841 S.W.2d 456 (Tex.App. — Dallas 1992). We granted appellant’s petition for discretionary review to determine whether the court of appeals erred in holding that a variance between the indictment and the evidence produced at trial was inconsequential because the evidence was sufficient when measured against the application portion of the jury charge, and whether appellant was at least entitled to a reversal and remand due to trial error.

We have carefully considered the two grounds for review and the briefs before us. After due consideration, we find that appellant’s petition for discretionary review was improvidently granted. Accordingly, appellant’s petition for discretionary review is dismissed.

Keller, J., not participating.