Jones v. State , 1995 Tex. Crim. App. LEXIS 65 ( 1995 )

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted Appellant of the offense of aggravated robbery and assessed punishment at confinement for fifteen years. On appeal the Court of Appeals reversed due to the failure to charge on a lesser included offense of robbery after the Appellant had met the test enunciated in Rousseau v. State, 855 S.W.2d 666 (Tex.Cr.App.1993), and that set forth in Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981). Jones v. State, 888 S.W.2d 869 (Tex.App.—Houston [1st], 1994). The State has petitioned for discretionary-review arguing that since Appellant denied committing any species of robbery, admitting only to committing theft, and the victims testified that Appellant was guilty of aggravated robbery, there was no evidence raising the issue of robbery.

The Court of Appeals handed down its decision on October 6, 1994. We handed down our decision in Bignall v. State, 887 S.W.2d 21 (Tex.Cr.App.1994), on September 14, 1994 but did not deny rehearing until November 16,1994. The Court of Appeals in the case at bar did not have the benefit of that most recent case dealing with this issue.

It is our opinion therefore that the cause should be remanded to the Court of Appeals so that consideration may be had of our most recent pronouncement in the area of consideration. By this action we intimate no decision as to the appropriate outcome or the consideration which must be given the referenced case.

Accordingly, the judgment of the Court of Appeals is vacated and the cause remanded to that court for further proceedings consistent with this opinion.

OVERSTREET, J., dissents.