Walker v. State , 1989 Tex. Crim. App. LEXIS 34 ( 1989 )

OPINION ON APPELLANT’S AND STATE’S PETITIONS FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of driving while intoxicated and assessed punishment at 30 days confinement and a $500.00 fine. The conviction was affirmed. Walker v. State, 751 S.W.2d 268 (Tex.App.-San Antonio 1988). Both appellant-and the State filed petitions for discretionary review.

On original submission, the Court of Appeals sustained appellant’s fifth point of error and reversed the conviction because the trial court improperly overruled appellant’s motion to quash the information. On reconsideration, however, the conviction was affirmed because although the motion to quash should have been granted, prejudice could not be determined because there was no statement of facts included in the record. The Court made no mention of appellant’s other points of error.

In his petition, appellant contends that the Court erred by affirming the case without considering or ruling on his other points of error, one of which concerned the trial court’s error in refusing to allow appellant to proceed with a free statement of facts. Rule 90(a) of the Rules of Appellate Procedure requires the Court of Appeals to address every issue raised and necessary to a final disposition of the appeal. By only considering one of appellant’s points of error, the Court of Appeals ran afoul of this rule. We will therefore summarily grant appellant’s petition for discretionary review and remand the case to the Court of Appeals. We express no opinion as to the validity of any of the points appellant raises.

In its petition, the State claims that the Court of Appeals improperly held that the trial court erroneously overruled appellant’s motion to quash. The decision cited by the Court of Appeals, Solis v. State, 742 S.W.2d 873 (Tex.App.-San Antonio 1987), is pending review in this Court on the issue raised by the State. We express no opinion on the issue at this time. With this disclaimer, we refuse the State’s petition for discretionary review without prejudice. It may file another petition after this case is disposed of on remand to the Court of Appeals.

The judgment of the Court of Appeals is vacated and the cause is remanded.