State v. Barber

802 S.W.2d 696 (1991)

The STATE of Texas, Appellee, v. W.S. BARBER, et al., Appellants.

No. 1075-89.

Court of Criminal Appeals of Texas, En Banc.

January 30, 1991.

Rex Houston, J. Mitchell Beard, Harry Heard, Longview, for appellants.

David Brabham, Dist. Atty., and C. Patrice Savage, John W. Tunnell & R. Clement Dunn, Asst. Dist. Attys., Longview, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

A jury convicted appellants of engaging in organized crime. The court assessed punishment at five years confinement. The Court of Appeals reversed appellants' convictions on sufficiency grounds. Barber v. State, 668 S.W.2d 424 (Tex.App Texarkana 1984). We reversed that ruling and remanded the cause for consideration of appellants' remaining points of error. The Court of Appeals subsequently reversed appellants' convictions after concluding that the State failed to rebut the presumption of harm arising from an improper jury separation under former Tex. Code Crim.Proc.Ann. art. 35.23 (amended by Acts 1989, 71st Leg., ch. 825, § 1, eff. September 1, 1989). Barber v. State, 773 S.W.2d 631 (Tex.App.Texarkana 1989). The State petitioned this Court for review which was granted on September 27, 1989.

We have reconsidered the issue raised and find that the Court of Appeals reached the correct result. We decline to comment on the language or reasoning of the lower court. The State's petition for discretionary review was improvidently granted and is accordingly dismissed.

McCORMICK, P.J., and WHITE, J., dissent.

CAMPBELL and MALONEY, JJ., not participating.