Harris, Brandon Cornelius ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1472-12
THE STATE OF TEXAS
v.
BRANDON CORNELIUS HARRIS, Appellant
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
BRAZOS COUNTY
Per curiam.
OPINION
Appellant was charged with murder under Texas Penal Code § 19.02(b)(2). He was
found guilty and sentenced to thirty years in prison. On appeal, he argued that the trial court
erred in failing to charge the jury on the lesser-included offense of manslaughter. The Court
of Appeals disagreed, holding that manslaughter can never be a lesser-included offense of
HARRIS - 2
murder under § 19.02(b)(2). Harris v. State, No. 10-11-00035-CR, 2012 Tex. App. LEXIS
5201, at *8 (Tex. App.—Waco June 27, 2012) (not designated for publication) (citing
Cavazos v. State, 329 S.W.3d 838 (Tex. App.—El Paso 2010, pet. granted)).
Appellant has filed a petition for discretionary review of this decision, noting that this
Court granted review in Cavazos. We recently handed down our opinion in Cavazos v. State,
No. PD-1675-10, 2012 Tex. Crim. App. LEXIS 1387 (Tex. Crim. App. October 31, 2012).
In Cavazos, we held that manslaughter can be a lesser-included offense of murder under §
19.02(b)(2). Id. at *19.
The Court of Appeals in the instant case did not have the benefit of our opinion in
Cavazos. Accordingly, we grant Appellant’s petition for discretionary review on grounds
one and two, vacate the judgment of the Court of Appeals, and remand this case to the Court
of Appeals in light of our opinion in Cavazos. Ground three of Appellant’s petition is
refused.
DATE DELIVERED: December 19, 2012
DO NOT PUBLISH