WASYLINA v. State , 2010 Tex. Crim. App. LEXIS 2 ( 2010 )

305 S.W.3d 568 (2010)

Anthony WASYLINA, Appellant,
v.
The STATE of Texas.

No. PD-737-09.

Court of Criminal Appeals of Texas.

January 27, 2010.

Steven R. Green, for Anthony Wasylina.

Lisa McMinn, Jeffrey L. VanHorn, Austin, for the State.

OPINION

PER CURIAM.

Appellant was charged with manslaughter. Over Appellant's objection, the trial court granted the State's request for a jury charge on the lesser-included offense of criminally negligent homicide. Appellant was convicted of criminally negligent homicide.

On appeal, Appellant argued that the trial court erred in submitting that charge over his objection. The Court of Appeals initially agreed and reversed the conviction, reasoning that the evidence showed only that Appellant acted recklessly, not with criminal negligence. Wasylina v. State, ___ S.W.3d ____ (Tex.App.-Tyler 2007). We granted the State's petition and reversed, holding that proving the greater culpable mental state of recklessness necessarily proved the lesser culpable mental state of criminal negligence. We remanded for the appellate court to address the issue again. Wasylina v. State, 275 S.W.3d 908 (Tex.Crim.App.2009).

On remand, the Court of Appeals again reversed, this time relying on Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App. 1997). Wasylina v. State, ___ S.W.3d ____ (Tex.App.-Tyler 2009).

The State filed a petition for discretionary review contending that Arevalo should be overruled. We recently overruled Arevalo in Grey v. State, 298 S.W.3d 644 (Tex.Crim.App.2009).

The Court of Appeals did not have the benefit of our opinion in Grey. Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals in light of our opinion in Grey.