Rodriquez v. State

Court of Criminal Appeals of Texas

Rodriquez v. State

759 S.W.2d 141, 1988 Tex. Crim. App. LEXIS 238, 1988 WL 111963

CourtCourt of Criminal Appeals of Texas

DecidedOctober 26, 1988

DocketNo. 0012-87

StatusPublished

Cited by6 cases

This text of 759 S.W.2d 141 (Rodriquez v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rodriquez v. State, 759 S.W.2d 141, 1988 Tex. Crim. App. LEXIS 238, 1988 WL 111963 (Tex. 1988).

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Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of burglary of a motor vehicle and the punishment was assessed at eighty (80) years in the Texas Department of Corrections. On direct appeal the conviction was affirmed. Rodriquez v. State, 721 S.W.2d 504 (Tex.App. — Houston [14th] 1986). Appellant filed a petition for discretionary review in which he contended that the prosecutor’s argument referring to the law of parole was error. The Court of Appeals noted that the charge contained the instruction mandated by Article 37.07, § 4, V.A.C.C.P. They then analyzed the argument under the test set out in McKay v. State, 707 S.W.2d 23 (Tex.Cr.App.1985). Finding no error the Court of Appeals overruled the point of error.

Recently, however, this Court delivered our opinion in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988), in which we held that the statute in question is unconstitutional and that the appropriate vehicle to determine harm in a situation involving the parole law instruction is found in Tex.R.App.Pro. 81(b)(2). The Court of Appeals relied on the giving of the unconstitutional jury instruction in determining that the jury argument here was not error.

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

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

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OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of burglary of a motor vehicle and the punishment was assessed at eighty (80) years in the Texas Department of Corrections. On direct appeal the conviction was affirmed. Rodriquez v. State, 721 S.W.2d 504 (Tex.App. — Houston [14th] 1986). Appellant filed a petition for discretionary review in which he contended that the prosecutor’s argument referring to the law of parole was error. The Court of Appeals noted that the charge contained the instruction mandated by Article 37.07, § 4, V.A.C.C.P. They then analyzed the argument under the test set out in McKay v. State, 707 S.W.2d 23 (Tex.Cr.App.1985). Finding no error the Court of Appeals overruled the point of error.

Recently, however, this Court delivered our opinion in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988), in which we held that the statute in question is unconstitutional and that the appropriate vehicle to determine harm in a situation involving the parole law instruction is found in Tex.R.App.Pro. 81(b)(2). The Court of Appeals relied on the giving of the unconstitutional jury instruction in determining that the jury argument here was not error.

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

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

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759 S.W.2d 141, 1988 Tex. Crim. App. LEXIS 238, 1988 WL 111963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriquez-v-state-texcrimapp-1988.

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