Rodriguez v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted by a jury of aggravated sexual assault. The jury also assessed punishment at seventeen (17) years confinement. The fourteenth Court of Appeals affirmed in a published opinion. Rodriguez v. State, 750 S.W.2d 267 (Tex.App.1988).

In affirming the trial court’s judgment, the Court of Appeals found that there was no objection on the constitutional issues raised by appellant on appeal. The Court of Appeals then applied a harm analysis consistent with that set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), and found that appellant had not suffered egregious harm which deprived him of a fair and impartial trial.

After the Court of Appeals decided the instant appeal, this Court delivered its opinion on the Court’s own motion for rehearing in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988). On rehearing, this Court held that Rule 81(b)(2), Tex.R.App.Pro., and not the tests set out in Almanza, supra, govern in deciding whether this kind of charge error was harmless to the defendant. This Court further held that failure to object to the unconstitutional jury charge did not waive error. Since an objection was not required, it is of no consequence in the instant case that appellant’s point of error on appeal was not raised at trial.

Accordingly, this cause is remanded to the Court of Appeals so that it may analyze the error pursuant to Rule 81(b)(2), supra. See also Haynie v. State 751 S.W.2d 878 (Tex.Cr .App.1988).

The judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.

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

TEAGUE, J., dissents to the remand.