Opinion
No. 505-87.
November 23, 1988.
Appeal from the 288th Judicial District Court, Harris County, Ted Poe, J.
Stanley G. Schneider, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson and Alice Brown, 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
Appeal is taken from a conviction for the offense of aggravated robbery, enhanced by two prior felony convictions. After finding appellant guilty, the jury assessed punishment at ninety-nine years.
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 Article 37.07, Section 4, V.A.C.C.P. Smith v. State, 727 S.W.2d 344 (Tex.App. — Houston [1st Dist.] 1987).
In his petition for discretionary review, appellant urges the Court of Appeals erred in holding Article 37.07, Section 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 Article 37.07, Section 4, is unconstitutional. Under Rose, 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.