Scott, Jermal R.

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. PD-776-05 JERMAL R. SCOTT, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY

Per curiam.

O P I N I O N

Appellant was charged with knowingly causing serious bodily injury to a child and he was convicted of the lesser included offense of recklessly causing serious bodily injury to a child. The Court of Appeals affirmed, finding that Appellant was estopped from challenging both the legally and factually sufficiency of the evidence because he requested and received a jury instruction on the lesser included offense. Scott v. State, No. 02-04-00139-CR (Tex. App.- Ft. Worth, April 21, 2005). Appellant petitioned this Court for discretionary review.

When the Court of Appeals issued its opinion in this case, it did so without the benefit of this Court's recent opinion in McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App. 2006). Therefore, we vacate the judgment of the Court of Appeals and remand for that court to consider the effect of McKinney, if any, on its reasoning and analysis in this case.

En banc

Delivered: May 9, 2007

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