Harrell v. State

OPINION ON THE APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted appellant of murder, and the court assessed punishment at thirty years confinement. On direct appeal, appellant contended the judgment was void because the jury consisted of only eleven jurors. The Court of Appeals rejected this argument holding appellant waived any error. Harrell v. State, 923 S.W.2d 104, 111 (Tex.App.—Houston [14th] 1996).

In her petition for discretionary review, appellant contends the decision of the Court of Appeals is in conflict with our opinion in Ex parte Hernandez, 906 S.W.2d 931 (Tex.Cr.App.1995). However, the Court of Appeals did not discuss or distinguish Hernandez. Therefore, appellant’s petition for discretionary review is summarily granted, the judgment of the Court of Appeals is vacated and the case is remanded to that Court for further consideration in light of Hernandez, swpra.

McCORMICK, P.J., and KELLER, J.,. dissent.