ANTHONY WASYLINA v. THE STATE OF TEXAS (original)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-737-09 
ANTHONY WASYLINA, Appellant
v. 
THE STATE OF TEXAS 
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS 
ANDERSON COUNTY 
Per curiam.
O P I N I O N

Appellant was charged with manslaughter. Over Appellant's objection, the trial court granted the State's request for a jury charge on the lesser-included offense of criminally negligent homicide. Appellant was convicted of criminally negligent homicide.

On appeal, Appellant argued that the trial court erred in submitting that charge over his objection. The Court of Appeals initially agreed and reversed the conviction, reasoning that the evidence showed only that Appellant acted recklessly, not with criminal negligence. Wasylina v. State, __ S.W.3d __, No. 12-05-00263-CR (Tex. App. - Tyler, March 7, 2007). We granted the State's petition and reversed, holding that proving the greater culpable mental state of recklessness necessarily proved the lesser culpable mental state of criminal negligence. We remanded for the appellate court to address the issue again. Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009).

On remand, the Court of Appeals again reversed, this time relying on Arevalo v. State, 943 S.W.2d 887 (Tex. Crim. App. 1997). Wasylina v. State, __ S.W.3d __, No. 12-05-00263-CR (Tex. App. - Tyler, March 18, 2009).

The State filed a petition for discretionary review contending that Arevalo should be overruled. We recently overruled Arevalo in Grey v. State, __ S.W.3d __, No. PD-0137-09 (Tex. Crim. App., November 18, 2009).

The Court of Appeals did not have the benefit of our opinion in Grey. Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinion in Grey.

DATE DELIVERED: January 27, 2010

PUBLISH