Anderson v. State , 1988 Tex. Crim. App. LEXIS 214 ( 1988 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of delivery of a controlled substance, and assessed his punishment at forty-five years in the Texas Department of Corrections. The Waco Court of Appeals affirmed, Anderson v. State, 742 S.W.2d 541 (1987).

In affirming the trial court’s judgment, the Court of Appeals noted that under this Court’s original decision in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), the parole law instruction statutorily mandated under Art. 37.07, Sec. 4, V.A.C.C.P., is unconstitutional. The Court of Appeals then applied a harm analysis consistent with that set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), and found that appellant had not suffered “some harm” which deprived him óf a fair and impartial trial.

After this Court delivered its original opinion in Rose, supra, and after the Court of Appeals decided the instant appeal, this Court delivered its opinion on the Court’s own motion for rehearing in Rose, supra, on June 15,1988. On rehearing, this Court held that Rule 81(b)(2), Tex.R.App.Pro., and not the tests set out in Almanza, supra, govern in deciding whether this type of charge error was harmless to the defendant. This Court further held that failure to object to the unconstitutional jury charge did not waive error.

Accordingly, we grant appellant’s petition for discretionary review on ground two only. We summarily remand this cause to the Court of Appeals so that it may analyze the error pursuant to Rule 81(b)(2), supra. See also Haynie v. State, 751 S.W.2d 878 (Tex.Cr.App.1988).

The judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.

ONION, P.J., dissents, and also dissents to the remand. TEAGUE, J., dissents to the remand.