Yarbrough v. State

779 S.W.2d 844 (1989)

Gilbert YARBROUGH, Appellant, v. The STATE of Texas, Appellee.

No. 032-88.

Court of Criminal Appeals of Texas, En Banc.

June 21, 1989.

John A. Haring, Dallas, for appellant.

John Vance, Dist. Atty., and Pamela Sullivan Berdanier, Constance M. Maher, Jerri Sims and Dale Jensen, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

Appellant was convicted by jury for the offense of aggravated sexual assault. The jury assessed punishment at ten years confinement *845 in the Texas Department of Corrections.

On direct appeal, the Dallas Court of Appeals affirmed appellant's conviction, holding that the trial court did not err in failing to include in the charge on punishment the fifteen statutory terms and conditions enumerated in Tex.Code Crim.Pro. Ann. art. 42.12 § 6(a). Yarbrough v. State, 742 S.W.2d 62 (Tex.App.-Dallas 1987). We granted appellant's petition for discretionary review to review the Court of Appeals' decision.

After reviewing the record, the briefs filed, the pertinent case law and the Court of Appeals' disposition of the issue, it appears that the decision of the Court of Appeals is correct and language to the contrary in Brass v. State, 643 S.W.2d 443 (Tex.App.-Houston [14th Dist.] 1982 writ ref'd.), is expressly overruled and the granting of appellant's petition for discretionary review was improvident. See Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App. 1988), decided this date.

Therefore, appellant's petition for discretionary review is hereby dismissed pursuant to Tex.R.App.Pro. Rule 202(k).

IT IS SO ORDERED.

TEAGUE and CAMPBELL, JJ., concur in the result.

MILLER, J., dissents and would follow Brass v. State.