Reich-Bacot v. State

936 S.W.2d 961, 1996 Tex. Crim. App. LEXIS 215, 1996 WL 626116

• Court: Court of Criminal Appeals of Texas
• Decided: October 30, 1996
• Docket: 317-96
• Status: Published

Opinion

OPINION ON STATE’S PETITION FOB DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of murder and sentenced to confinement for life and a $10,- 000 fine. Tex.Penal Code § 19.04(a)(1). The Court of Appeals found the trial judge erred in failing to instruct the jury on self defense. Reich-Bacot v. State, 914 S.W.2d 666, 668-669 (Tex.App. — Texarkana 1996). The Court of Appeals did not perform a harm analysis but instead summarily reversed and remanded the case to the trial court for a new trial. Id, 914 S.W.2d at 669.

In Hamel v. State, 916 S.W.2d 491, 494 (Tex.Cr.App.1996), we held a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), was appropriate in cases where the trial judge erred in refusing a charge on a defensive theory. See generally, Tex.Code Crim.Proc.Ann. art 36.19; and, Atkinson v. State, 923 S.W.2d 21, 25-27 (Tex.Cr.App.1996). Therefore, the Court of Appeals erred in reversing the judgment of the trial court without first conducting a harm analysis.

Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court to conduct such a harm analysis.

Judgment of Court of Appeals vacated; cause remanded to Court of Appeals.

McCORMICK, P.J., and KELLER, J., dissent.