Opinion · Court of Appeals for the Fifth Circuit

Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections

Walter Lee Brown v. W. J. Estelle, Jr., Dir., Tex. Dep’t of Corr., 591 F.2d 1207 (5th Cir. 1979)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1979-03-21
Topic
general

PER CURIAM: For the reasons set forth by the trial court in its opinion, Brown v. Estelle, S.D.Tex.1978, the trial court’s grant of a writ of habeas corpus is affirmed. It appears that, under Texas law, an error in sentencing proceedings before a jury requires the state Appellate Court to reverse the entire conviction, not merely to remand for resentencing. Tex.Code Crim. Pro.

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Cited by
6 opinions
BROWN v. ESTELLE,591 F.2d 1207(5th Cir. 1979)
WALTER LEE BROWN, PETITIONER-APPELLEE, v. W. J. ESTELLE, JR., DIRECTOR,
TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT.
No. 78-2672.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
March 21, 1979.
John L. Hill, Atty. Gen., Gilbert J. Pena, David M. Kendall, Jr., Joe B. Dibrell, Asst. Attys. Gen., Austin, Tex., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Tex., for respondent-appellant.

Richard A. Dawson, Staff Counsel for Inmates, Sugar Land, Tex., for petitioner-appellee.
Appeal from the United States District Court for the Northern District of Texas; Robert M. Hill, Judge.
Before COLEMAN, FAY and RUBIN, Circuit Judges.
PER CURIAM:
[1] For the reasons set forth by the trial court in its opinion,Brown v. Estelle,S.D. Tex. 1978, the trial court's grant of a writ of habeas corpus is affirmed.

[2] It appears that, under Texas law, an error in sentencing proceedings before a jury requires the state Appellate Court to reverse the entire conviction, not merely to remand for resentencing. Tex. Code Crim. Pro. Art. 44.24(b);Bullard v.State,Tex.Cr. App. 1977,548 S.W.2d 13,18;Ellison v. State,Tex.Cr.App. 1968,432 S.W.2d 955,957. Accordingly, the District Court's judgment is modified in part as follows: The State shall be given the option either of retrying or resentencing the appellee within 120 days, as may be appropriate under Texas law.

[3] AFFIRMED.
  1. Rule 18, 5 Cir;see Isbell Enterprises, Inc. v. CitizensCasualty Co. of New York et al.,5 Cir., 1970,431 F.2d 409, Part I. ↩