Christopher A. Gerlich v. the State of Texas ( 2021 )

Reverse and Remand; Opinion Filed October 6, 2021 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00134-CR CHRISTOPHER A. GERLICH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 4 Collin County, Texas Trial Court Cause No. 004-82738-2019 MEMORANDUM OPINION Before Justices Schenck, Smith, and Garcia Opinion by Justice Schenck Christopher A. Gerlich appeals his conviction for assault causing bodily injury to a family member. In his first of two issues, he argues the trial court erred by failing to include an instruction in the jury charge regarding consideration of whether appellant failed to retreat. The State concedes the charge is erroneous as urged in the first issue, appellant properly preserved his request, and that he suffered some harm. The State further requests this Court reverse appellant’s conviction and remand the case for a new trial. In view of the absence of a present adversarial controversy between the parties as to the proper disposition of this appeal, we reverse the trial court’s judgment and remand this case for further proceedings. See TEX. R. APP. P. 44.2. /David J. Schenck/ DAVID J. SCHENCK JUSTICE DO NOT PUBLISH Tex. R. App. P. 47 200134F.U05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CHRISTOPHER A. GERLICH, On Appeal from the County Court at Appellant Law No. 4, Collin County, Texas Trial Court Cause No. 004-82738- No. 05-20-00134-CR V. 2019. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Schenck. Justices Smith and Garcia participating. Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered this 6th day of October, 2021. –3–