Perkins v. State

993 S.W.2d 116 (1999)

Calvin Ray PERKINS, Appellant, v. The STATE of Texas.

No. 414-97.

Court of Criminal Appeals of Texas, En Banc.

June 9, 1999.

Katherine A. Drew, Dallas, for appellant.

John R. Rolater, Jr., Asst. Dist. Atty., Dallas, Betty Marshall, Asst. State's Atty., Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

PER CURIAM.

The appellant was convicted of driving while intoxicated, third offense, at a trial before the judge without a jury. The Tenth Court of Appeals reversed the appellant's conviction, stating that the evidence was factually insufficient to support the conviction. Perkins v. State, 940 S.W.2d 365, 367 (Tex.App.Waco 1997). The Dallas County District Attorney and the State Prosecuting Attorney each filed a petition for discretionary review before this Court.

We granted both petitions to determine (1) whether the Court of Appeals violated the procedural guidelines announced in Clewis v. State, 922 S.W.2d 126 (Tex.Cr. App.1996), and (2) whether this Court has jurisdiction to review an intermediate court's review of factual sufficiency to determine whether it applied the correct legal standard. We recently addressed the same issues in Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997).

Because the Court of Appeals did not have the benefit of our opinion in Cain when it decided this case, we vacate the decision of the Court of Appeals and remand the case to that court so that it may re-evaluate the appellant's point of error in light of Cain.