Lopez v. State

664 S.W.2d 85 (1983)

Robert LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 651-83.

Court of Criminal Appeals of Texas, En Banc.

October 19, 1983.

On Rehearing February 1, 1984.

David K. Chapman, San Antonio, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, Don Hase, George S. Kredell, Alex Gonzalez and Michael Jergins and David H. Montague, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of the offense of aggravated delivery of marihuana. Punishment was assessed by the jury at imprisonment in the Texas Department of Corrections for 16 years and a $50,000 fine. The conviction was reversed by the Fort Worth Court of Appeals in a published opinion by Justice Burdock, with a dissenting opinion by Chief Justice Fender. Lopez v. State, 651 S.W.2d 413 (1983).

The Court of Appeals reversed the conviction on the narrow issue of the admissibility of a videotaped re-enactment of the offense.

In supplemental memoranda both the state and the appellant recognize that this Court's decision on the constitutionality of House Bill 730 of the 67th Legislature (Acts 1981, ch. 268, p. 696) may ultimately control the disposition of this conviction. We agree.

Therefore, pursuant to the authority conferred on this Court by Articles 44.37 and 44.45(b), V.A.C.C.P., Tex.Cr.App.R. 304(a) the state's petition for discretionary review is granted. Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982); Froyd v. State, 633 S.W.2d 884 (Tex.Cr.App.1982). The case is ordered remanded to the Court of Appeals for the Second Supreme Judicial District for reconsideration of appellant's contention presented but not addressed by the Court of Appeals, that House Bill 730 is unconstitutional, in light of this Court's decision in Ex parte Crisp, 661 S.W.2d 944 (1983).

IT IS SO ORDERED.

ODOM, J., dissents to the order of remand.

OPINION ON STATE'S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW

Appellant was convicted of aggravated delivery of marihuana and assessed a punishment by the jury of 16 years' confinement in the Texas Department of Corrections and a $50,000 fine. The Second Court of Appeals reversed the conviction on the limited issue of the admissibility of a videotaped reenactment of the crime. On original submission to this Court, we remanded the cause to the Court of Appeals for reconsideration of appellant's contention that House Bill 730[1] of the 67th Legislature (Acts 1981, ch. 268) is unconstitutional.

In Ex parte Crisp, 661 S.W.2d 956 (1983) rehearing denied Jan. 18, 1984, this Court held that H.B. 730 was unconstitutional pursuant to Art. III, Section 35 of the Texas Constitution.

The State's motion for rehearing in the instant cause is denied and the case is remanded to the Court of Appeals for action not inconsistent with our holding in Ex parte Crisp, supra.

NOTES

[1] Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.05(a), (b)(3) (Supp.1982), 1981 Tex.Gen.Laws, ch. 268, § 7, at 702.