Silguero v. State

645 S.W.2d 819, 1983 Tex. Crim. App. LEXIS 915

Opinion

OPINION

PER CURIAM.

Appellant was convicted of the offense of murder, and punishment was assessed at imprisonment for life. The Court of Appeals affirmed the conviction. Silguero v. State, 616 S.W.2d 215 (Tex.App. — Corpus Christi 1982).

In his third ground of error, Appellant complains that the trial court erred by excluding the testimony of a witness who testified during Appellant’s first trial but who was unavailable to testify at the retrial. The Court of Appeals overruled this ground of error because “the record reflects no bill of exception on this ground regarding what the preferred [sic] testimony would have been. No error is preserved for review.”

Contrary to this statement by the Court of Appeals, the testimony sought to be introduced was preserved in a bill of exception and appears in the record as defense exhibit 35. Thus, this cause must be remanded to the Court of Appeals for further consideration of Appellant’s third ground of error. All other reasons for review contained in Appellant’s petition for discretionary review are without merit.

Appellant’s petition for discretionary review is granted, and the cause is remanded to the Court of Appeals for further consideration of Appellant’s third ground of error.