McGowen v. State , 1998 Tex. Crim. App. LEXIS 140 ( 1998 )

991 S.W.2d 803 (1998)

Joseph Kenton McGOWEN, Appellant,
v.
The STATE of Texas, Appellee.

No. 624-97.

Court of Criminal Appeals of Texas, En Banc.

October 28, 1998.

George McCall Secrest, Jr., Houston, for appellant.

William J. Delmore, III, Assistant District Attorney, Houston, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of murder and sentenced to confinement for fifteen years. The Court of Appeals reversed the conviction because the trial court refused Appellant's request to make an opening statement, and it held this error is not subject to a harm analysis. McGowen v. State, 944 S.W.2d 481 (Tex.App.—Houston [14th Dist.] 1997).

The State filed a petition for discretionary review. In ground two of its petition, the State argues the Court of Appeals erred by failing to conduct a harm analysis. At the time the Court of Appeals handed down its opinion, it did not have the benefit of our decision in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). In Cain, this Court held, "Except for certain federal constitutional errors labeled by the United States Supreme Court as ``structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." Id. at 264.

Accordingly, we grant ground two of the State's petition, vacate the judgment of the Court of Appeals, and remand the cause to that court for reconsideration in light of Cain. Ground one of the State's petition is refused.