Rodriguez v. State

753 S.W.2d 161, 1988 Tex. Crim. App. LEXIS 149, 1988 WL 71491

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

The record reflects that Jorge Rodriguez, henceforth appellant, was convicted by a jury of two counts of aggravated kidnapping. The jury also assessed his punishment at 99 years’ confinement in the Department of Corrections and a $10,000 fine. The First Court of Appeals affirmed. See Rodriguez v. State, 746 S.W.2d 927 (Tex.App.—1st, Nos. 01-87-00296-CR, and 01-87-00297-CR, March 3, 1988).

In affirming the trial court’s judgment, the court of appeals agreed with appellant that under this Court’s decision of Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), which held that the statutorily mandated parole law instruction, see Art. 37.07, § 4, V.A.C.C.P., was unconstitutional, the trial judge erred in giving this instruction, but held that the error was, under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), harmless.

After this Court handed down its opinion of Rose v. State, supra, and after the court of appeals handed down its opinion in this cause on March 3, 1988, this Court handed down its opinion on the Court’s own motion for rehearing in Rose v. State, supra, on June 15, 1988, and held that Rule 81(b)(2), Tex.R.App.Pro., and not the tests set out in Almanza v. State, supra, governed in deciding whether this kind of charge error was harmless to the defendant.

Therefore, it is this Court’s opinion that this cause should be remanded to the court of appeals so that it can analyze the error pursuant to Rule 81(b)(2), supra. Also see this Court’s opinion of Haynie v. State, 751 S.W.2d 878 (Tex.Cr.App.1988).

It is so Ordered.

ONION, P.J., dissents and also dissents to the remand.