Reich-Bacot v. State

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

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.