Opinion
No. 770-89.
March 28, 1990.
Appeal from the 185th Judicial District Court, Harris County, E.W. Patteson, J.
Douglas M. O'Brien, Houston (court-appointed on appeal), for appellant.
John B. Holmes, Jr., Dist. Atty., Kathlyn Giannaula and Catherine Bertrand, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
A jury convicted appellant of aggravated robbery, enhanced, and assessed punishment at 12 years imprisonment. The conviction was affirmed in an unpublished opinion. Barehill v. State, 1987 WL 17344 (Tex.App.-Houston [1st], No. 1-86-723-CR, delivered September 24, 1987). Appellant petitioned this Court for review claiming that the Court of Appeals erred in holding Art. 37.07, § 4, V.A.C.C.P., constitutional. This Court remanded the case in an unpublished opinion for proceedings consistent with Rose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1988). Barehill v. State (Tex.Cr.App. No. 1203-87, delivered November 23, 1988). On remand, the Court of Appeals found that although the parole instruction was unconstitutional, appellant was not harmed by submission of the instruction to the jury 782 S.W.2d 506. Appellant filed a second petition claiming that he was harmed.
We have considered the issues raised and find that the Court of Appeals reached the correct result. The petition for discretionary review will be refused. As is true in every case where this Court refuses a petition for discretionary review, however, refusal does not constitute endorsement or adoption of the reasoning employed by the Court of Appeals. See Sheffield v. State, 650 S.W.2d 813 (Tex.Cr.App. 1983). Moreover, harm determinations relevant to submission of the unconstitutional parole statute are now governed by this Court's opinion in Arnold v. State, 784 S.W.2d 372 (Tex.Cr.App. 1990).
With this understanding, appellant's petition for discretionary review is refused.
McCORMICK, P.J., concurs in the result.
TEAGUE, J., dissents.