Sanchez v. State

628 S.W.2d 780 (1982)

Jacinto SANCHEZ, Appellant, v. The STATE of Texas, Appellee.

No. 008-81.

Court of Criminal Appeals of Texas, En Banc.

February 17, 1982.

Kenneth A. Korth, Victoria, for appellant.

Knute L. Dietze, Dist. Atty., Victoria, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

This is an appeal from a conviction for the offense of voluntary manslaughter. Punishment was assessed at imprisonment in the Texas Department of Corrections for 20 years. The Court of Appeals affirmed Sanchez v. State, 622 S.W.2d 491 (1981). Appellant's motion for rehearing was overruled without opinion.

In his petition for discretionary review, appellant contends that the trial court erred in allowing the State's attorney to question him about his silence while he was in custody concerning his fear that the deceased had a weapon at the time appellant initiated the attack against him. The Court of Appeals concluded that the complaint was not properly before them for review because no objection was made to the prosecutor's question.

We have examined the record on appeal, and conclude that an objection to the complained-of question was in fact made.

Therefore, pursuant to the authority conferred on this Court by Articles 44.37 and 44.45(b), V.A.C.C.P., and Rule 304(k) (Tex. Crim.App.R.), appellant's petition for discretionary review is granted and this case is remanded to the Court of Appeals for the 13th Supreme Judicial District for reconsideration of appellant's ground of error No. 3.

This Court expresses no opinion with respect to the ultimate disposition of this contention, but only finds that the Court of Appeals was in error in concluding that the complaint was not properly before it for review.

IT IS SO ORDERED.