Daniel Dallas Hawkins, Jr. v. State

NUMBER 13-01-584-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

DANIEL DALLAS HAWKINS, JR.                                                    Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 252nd District Court of Jefferson County, Texas

                                 OPINION ON REMAND

                        Before Justices Hinojosa, Yañez, and Baird^[1]

Opinion On Remand by Justice Baird

On direct appeal, we affirmed appellant=s conviction. Hawkins v. State, 99 S.W.3d 890, 899‑900 (Tex. App.BCorpus Christi 2003), rev'd, 135 S.W.3d 72 (Tex. Crim. App. 2004).  However, we sustained the fifth issue, reversed the trial court=s judgment, and remanded the case for a new trial on the issue of punishment.  See id.;  Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004-05).  The court of criminal appeals reversed our decision and remanded this case for consideration of appellant=s remaining issue. See Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App. 2004).  We now address that issue.

The sixth and final issue contends the cumulative effect of the errors at appellant=s trial requires reversal.^[2]  The doctrine of cumulative error is recognized in Texas.  Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988)); see Mata v. State, 141 S.W.3d 858, 869 (Tex. App.BCorpus Christi 2004, pet. granted).  Under this doctrine, a number of errors may be found harmful in their cumulative effect. Chamberlain, 998 S.W.2d at 238.

On direct appeal, we considered four separate issues in which appellant argued the trial court erred.^[3]  We overruled three of those issues.  While we did find error and harm stemming from the fifth issue, our decision related to that point has been reversed.  Therefore, appellant is in the untenable position of asking us to consider the cumulative effect of non-existent error.  Because there was no error committed by the trial court in the preceding issues, the sixth issue must necessarily be overruled.

The judgment of the trial court is affirmed.

_____________________________

Charles F. Baird

Assigned Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Opinion on Remand delivered and filed

this the 14th day of July, 2005.

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^[1] Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas.  See Tex. Gov=t Code Ann. ' 74.003 (Vernon 2005).

^[2] In addition to their original briefs, appellant and the State have filed briefs to facilitate our consideration of this issue.  Also, in his brief on remand, appellant invites us to reconsider our resolution of the third issue.  We decline this invitation for two reasons.  First, we continue to believe our treatment of this issue on direct appeal was correct. Second, the opinion of the Court of Criminal Appeals limits our consideration to the remaining issue.

^[3]The remaining issue challenged the sufficiency of the evidence to support appellant=s conviction.  See footnote 2, supra.