Ikner v. State

848 S.W.2d 161 (1993)

James Montgomery IKNER, Appellant, v. The STATE of Texas, Appellee.

Nos. 007-93, 008-93.

Court of Criminal Appeals of Texas, En Banc.

March 3, 1993.

Discretionary Review Refused March 3, 1993.

Allen C. Isbell, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty, Dan McCrory and D. Craig Hughes, Asst. Dist. Attys, Houston, Robert Huttash, State's Atty, Austin, for the State.

*162 Before the court en banc.

BAIRD, Judge.

The trial judge convicted appellant of resisting arrest and driving while intoxicated. Initially, the Court of Appeals affirmed but later, after the filing of appellant's petition for discretionary review, on its own motion pursuant to Tex.R.App.P. 101, withdrew its earlier opinion and reversed the convictions. Ikner v. State, 848 S.W.2d 162 (Tex.App.Houston [14th] 1992). The State now petitions for review contending the Court of Appeals erred by not addressing the State's argument that appellant had not preserved the error for appellate review. Weatherford v. State, 828 S.W.2d 12 (Tex.Cr.App.1992). We agree.

The Court of Appeals sustained appellant's points of error without deciding whether the error was preserved for appellate review. Therefore, we summarily grant the State's petitions for discretionary review. See Tex.R.App.P. 90(a). The judgments of the Court of Appeals are vacated and the causes are remanded to that court for consideration of the State's arguments concerning non-preservation.