Villanueva v. State

725 S.W.2d 244, 1987 Tex. Crim. App. LEXIS 521

Opinion

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of burglary of a habitation. Punishment was assessed by the trial court at 10 years in the Texas Department of Corrections. On appeal the San Antonio Court of Appeals reversed the conviction and ordered an acquittal. Villanueva v. State, 711 S.W.2d 739 (Tex.App. — San Antonio 1986).

The State raises one ground for review. We agree with the Court of Appeals that reversal is required. However, in their opinion, the San Antonio Court stated, “The appellant may, however, be retired for the lesser included offense of theft.” As is true in every case where discretionary review is refused, this refusal does not constitute endorsement or adoption of the language or reasoning employed by the Court of Appeals. Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App.1983).

With this understanding, we refuse the State’s petition for discretionary review.

McCORMICK, J., would grant the State’s petition for discretionary review. DUNCAN, J., not participating.