Richardson v. State , 1992 Tex. Crim. App. LEXIS 37 ( 1992 )

824 S.W.2d 585 (1992)

Damon Jerome RICHARDSON, Appellant,
v.
The STATE of Texas, Appellee.

No. 014-92.

Court of Criminal Appeals of Texas, En Banc.

March 4, 1992.

Richard L. Wardroup, Lubbock, for appellant.

Travis S. Ware, Dist. Atty., and Michael West, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of engaging in organized criminal activity and assessed punishment at confinement for life and a $10,000.00 fine. The Court of Appeals affirmed the conviction, holding that use of a pen register was not a search under Article 1, section 9 of the Texas Constitution. Richardson v. State, 821 S.W.2d 304 (Tex. App.—Amarillo, 1991). The court relied upon cases from this Court which had held that Article 1, section 9 was not more restrictive than the Fourth Amendment to the United States Constitution. In his petition appellant contends that these cases were explicitly discredited by this Court in Heitman v. State, 815 S.W.2d 681 (Tex.Cr. App.1991).

We summarily grant ground one of appellant's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand the case to the Court of Appeals to reconsider appellant's points of error in light of Heitman. Ground two of appellant's petition is refused without prejudice to refile after the Court of Appeals' disposition of the case.