Opinion
No. 705-86.
February 18, 1987.
Appeal from 144th Judicial District Court, Bexar County, Roy R. Barrera, Jr., J.
Monica L. Donahue (court appointed), San Antonio, for appellant.
Sam D. Millsap, Jr., Dist. Atty., Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW
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 . 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.