Opinion
No. 01-00-00798-CR
Opinion issued October 23, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 829,055.
Shawna L. Reagin, Houston, for Appellant. John B. Holmes, District Attorney, Bridget Holloway, Assistant District Attorney, Harris County, Houston, for Appellee.
Panel consists of Justices HEDGES, NUCHIA, and HIGLEY.
MEMORANDUM OPINION ON REMAND
Appellant was charged with aggravated sexual assault. The jury instead convicted him of sexual assault, a lesser-included offense that had been submitted to the jury at the State's request and over appellant's objection. Upon appellant's plea of true to two felony enhancement allegations, the trial court sentenced him to 40 years' confinement. On December 6, 2001, we affirmed the judgment of the trial court. Hampton v. State , 66 S.W.3d 430 (Tex.App.-Houston [1st Dist.] 2001). The Court of Criminal Appeals granted appellant's sole ground for review, which challenged this Court's conclusion that the State was entitled to a jury instruction on the lesser-included offense of sexual assault. 109 S.W.3d 437, 438-49 (Tex.Crim.App. 2003). The Court held that the lesser-included-offense instruction of sexual assault was not warranted by the evidence, reversed our decision, and remanded for us to conduct a harmless error analysis. Id . at 441-42. We reverse and remand.