Harrell v. State , 1998 Tex. Crim. App. LEXIS 159 ( 1998 )

OPINION

The opinion of the Court was delivered

PER CURIAM.

A jury convicted Appellant of murder and assessed her punishment at confinement for thirty years. The Court of Appeals originally affirmed the .conviction, holding that Appellant waived her right to a jury of twelve and agreed to proceed with eleven jurors. Harrell v. State, 923 S.W.2d 104 (Tex.App.— Houston [14th Dist.] 1996). Appellant filed a petition for discretionary review, arguing that a jury of twelve cannot be waived. We granted Appellant’s petition, vacated the Court of Appeals’ opinion, and remanded for reconsideration in light of Ex parte Hernandez, 906 S.W.2d 931 (Tex.Crim.App.1995). Harrell v. State, 930 S.W.2d 100 (Tex.Crim.App.1996).

On remand, the Court of Appeals reversed the conviction, holding that under Hernandez, a defendant accused of a felony may not waive the right to a jury composed of twelve persons. Harrell v. State, 938 S.W.2d 162 (Tex.App. — Houston [14th Dist.] 1997). The State has filed a petition for discretionary review of that decision. After the Court of Appeals handed down its opinion on remand, this Court decided Hatch v. State, 958 S.W.2d 813 (Tex.Crim.App.1997), which overruled Hernandez and held that a defendant may waive his statutory right to a jury of twelve members. See also Roberts v. State, 957 S.W.2d 80 (Tex.Crim.App.1997).

In this situation, this Court would normally grant the State’s petition and remand in light of Hatch and Roberts. However, a remand is unnecessary in this case, since the Court of Appeals has already made the factual determination that Appellant waived a jury of twelve, and we have since determined that such a waiver is permissible. There is no issue left for the Court of Appeals to resolve. The Court of Appeals’ conclusion in its original opinion is now correct under Hatch. However, since the opinion on remand is not in harmony with Hatch, we summarily grant the State’s petition, reverse the Court of Appeals’ judgment, and affirm the judgment of the trial court.

BAIRD, J., dissents for the reasons stated in Hatch v. State, 958 S.W.2d 813, 816 (Tex.Cr.App.l997)(Baird, J., dissenting). OVERSTREET, J., dissents. MEYERS, J., not participating.