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Miller v. State

Court of Criminal Appeals of Texas, En Banc
Nov 9, 1988
760 S.W.2d 259 (Tex. Crim. App. 1988)

Opinion

No. 0195-87.

November 9, 1988.

Appeal from the 283rd Criminal District Court, Dallas County, Jack Hampton, J.

Dan P. Garrigan, Lawrence P. Mitchell (on appeal petition only), Dallas, for appellant.

John Vance, Dist. Atty., and Leslie McFarlane, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


Appeal is taken from a conviction for the offense of voluntary possession of a controlled substance. After finding appellant guilty, the jury assessed punishment at forty years confinement in the Texas Department of Corrections.

On direct appeal, appellant argued the trial court erred in instructing the jury on the law concerning good time and parole, inasmuch as the charge is predicated upon an unconstitutional statute. The Court of Appeals rejected appellant's challenge to Art. 37.07, Sec. 4, V.A.C.C.P., Miller v. State, 723 S.W.2d 789 (Tex.App. — Dallas 1987).

In his petition for discretionary review, appellant urges the Court of Appeals erred in holding Art. 37.07, Sec. 4, supra, is constitutional. We find appellant is correct.

In Rose v. State, 752 S.W.2d 529, (Tex.Cr.App. 1988), this Court determined that Art. 37.07, Sec. 4, is unconstitutional. Under Rose, supra, it is still necessary for the Court of Appeals to conduct a harmless error analysis under the guidelines of Tex.R.App.P. 81(b)(2).

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


Summaries of

Miller v. State

Court of Criminal Appeals of Texas, En Banc
Nov 9, 1988
760 S.W.2d 259 (Tex. Crim. App. 1988)
Case details for

Miller v. State

Case Details

Full title:Anthony Joseph MILLER, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, En Banc

Date published: Nov 9, 1988

Citations

760 S.W.2d 259 (Tex. Crim. App. 1988)

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