Rische v. State

755 S.W.2d 477, 1988 Tex. Crim. App. LEXIS 127, 1988 WL 62408

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of voluntary manslaughter and the punishment was assessed at twelve (12) years in the Texas Department of Corrections and a $1,000.00 fine. On direct appeal the conviction was affirmed. Riscke v. State, 746 S.W.2d 287 (Tex.App.—Houston [1st] 1988). Appellant filed a petition for discretionary review in which he contends, inter alia, that the Court of Appeals erred in failing to remand the cause to the trial court for a hearing to allow him to demonstrate how he was harmed by the inclusion of a charge relating to the law of parole pursuant to Art. 37.07, Sec. 4, V.A.C.C.P. In determining whether appellant had been harmed by the inclusion of this charge the Court of Appeals analyzed the harm under the standards announced by this Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984).

Recently, however, this Court delivered our opinion in Rose v. State, 752 S.W.2d 529 (1988) in which we held that the appropriate vehicle to determine harm in this situation is found in Tex.R.App.Pro. 81(b)(2). Since the Court of Appeals did not have the benefit of this holding when they decided the instant cause, it is this Court’s opinion that the cause should be returned to them for such an analysis.

Therefore this cause is remanded to the First Court of Appeals for reconsideration of the harm caused appellant by the inclusion of the complained of charge in a manner consistent with Rose, supra; Haynie v. State, 751 S.W.2d 878 (Tex.Cr.App.,1988).

ONION, P.J., dissents to remand.