Smith v. State , 1988 Tex. Crim. App. LEXIS 227 ( 1988 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appeal is taken from a conviction for the offense of unlawful delivery of a controlled substance. After finding appellant guilty, the jury assessed punishment at fifty-five (55) years in the Texas Department of Corrections.

On direct appeal, Appellant argued the trial court erred in instructing the jury on the law concerning good time and parole, inasmuch as the charge is predicated upon an unconstitutional statute. The Court of Appeals rejected appellant’s challenge to Article 37.07, § 4, V.A.C.C.P. in an unpublished opinion Smith v. State, 733 S.W.2d 604 (Tex.App. — Dallas, 1987).

In his petition for discretionary review, Appellant urges the Court of appeals erred in holding Article 37.07, § 4, supra, is constitutional. We find appellant is correct.

In Rose v. State, 752 S.W.2d 529 (Tex.Cr. App.1988), this Court determined that Article 37.07, § 4, is unconstitutional. Under Rose, supra, it is still necessary for the Court of Appeals to conduct a harmless error analysis under the guidelines of Tex. R.App.Pro. 81(b)(2).

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