Zorn, Mary ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0936-02

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MARY ZORN, Appellant

v.

THE STATE OF TEXAS

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS SMITH COUNTY

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   Per curiam. JOHNSON, J., dissents.

Appellant was charged with the offense of retaliation, and a bench trial was conducted. During defense closing argument, the trial court asked defense counsel to discuss the issue of lesser offenses. Defense counsel stated that if there were any lesser-included offense, it would be terroristic threat. At the conclusion of the guilt phase proceedings, the trial court convicted appellant of terroristic threat. Appellant appealed, contending that terroristic threat was not in fact a lesser-included offense. The Court of Appeals affirmed, finding the offense to be lesser-included on the facts of the case. ⁽¹⁾ In her petition for discretionary review, appellant contends that the Court of Appeals erred in its conclusion. After reviewing the parties' briefs and the relevant portions of the record, we conclude that our decision to grant the petition was improvident. Accordingly, we dismiss appellant's petition for discretionary review. See TEX. R. APP.P. 69.3.

Date delivered: December 7, 2005

Do Not Publish

1. Zorn v. State, No. 12-01-00111-CR (Tex.App. -- Tyler Lexis 3058).