Froyd v. State ( 1982 )

633 S.W.2d 884 (1982)

Virginia Beam FROYD, Appellant,
v.
The STATE of Texas, Appellee.

No. 263-82.

Court of Criminal Appeals of Texas, En Banc.

June 2, 1982.

Ken J. McLean, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Calvin Hartmann and Chris Hanger, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ORDER

PER CURIAM.

Appellant was convicted of the offense of aggravated robbery, V.T.C.A., Penal Code, § 29.03, and her punishment was assessed at imprisonment in the Texas Department of Corrections for 16 years.

The court of appeals reversed because the trial court overruled the appellant's pro se motion to require the court reporter to record final arguments of counsel. Froyd v. State, 628 S.W.2d 866 (Tex.App. — Corpus Christi, 1982).

The appellant has filed a petition for discretionary review complaining that the evidence is insufficient to support her conviction. This question was not addressed by the court of appeals although presented in her brief. The State has filed a cross-petition for discretionary review arguing that the appellant was not entitled to hybrid representation and that the trial court did not deny the appellant's pro se motion for the court reporter to take down final arguments.

We agree that at least since the decision in Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the appellant is entitled to a review of the sufficiency of the evidence to support her conviction when challenged even though reversal is required on other grounds. Hooker v. State, 621 S.W.2d 597 (Tex.Cr.App.1981); Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1979).

Therefore, pursuant to the authority conferred on this Court by Arts. 44.37 and 44.45(b), V.A.C.C.P.; Rule 304(a), Texas Rules of Post-Trial and Appellate Procedure; and Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982), the 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 consideration of the appellant's challenge to the sufficiency of the evidence. This Court expresses no opinion with respect to the ultimate disposition of this contention but only finds that the court of appeals should have considered the challenge of the sufficiency of the evidence. The State's petition for discretionary review is refused.

IT IS SO ORDERED.

W. C. DAVIS and McCORMICK, JJ., dissent.