Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections

Fifth Circuit

Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections

591 F.2d 1207, 1979 U.S. App. LEXIS 16060

Court of Appeals for the Fifth Circuit·Decided March 21, 1979·No. 78-2672·Published·Cited by 6 cases

Opinion

PER CURIAM:

For the reasons set forth by the trial court in its opinion, Brown v. Estelle, S.D.Tex.1978, the trial court’s grant of a writ of habeas corpus is affirmed.

It appears that, under Texas law, an error in sentencing proceedings before a jury requires the state Appellate Court to reverse the entire conviction, not merely to remand for resentencing. Tex.Code Crim. Pro. Art. 44.24(b); Bullard v. State, Tex.Cr.App.1977, 548 S.W.2d 13, 18; Ellison v. State, Tex.Cr.App.1968, 432 S.W.2d 955, 957. Accordingly, the District Court’s judgment is modified in part as follows: The State shall be given the option either of retrying or resentencing the appellee within

120 days, as may be appropriate under Texas law.

AFFIRMED.

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PER CURIAM:

For the reasons set forth by the trial court in its opinion, Brown v. Estelle, S.D.Tex.1978, the trial court’s grant of a writ of habeas corpus is affirmed.

It appears that, under Texas law, an error in sentencing proceedings before a jury requires the state Appellate Court to reverse the entire conviction, not merely to remand for resentencing. Tex.Code Crim. Pro. Art. 44.24(b); Bullard v. State, Tex.Cr.App.1977, 548 S.W.2d 13, 18; Ellison v. State, Tex.Cr.App.1968, 432 S.W.2d 955, 957. Accordingly, the District Court’s judgment is modified in part as follows: The State shall be given the option either of retrying or resentencing the appellee within

120 days, as may be appropriate under Texas law.

AFFIRMED.

Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections, 591 F.2d 1207, 1979 U.S. App. LEXIS 16060 (5th Cir. 1979).

Pincite

591 F.2d 1207 (Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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