Ex Parte Kunkle
852 S.W.2d 499
Tex. Crim. App.
1993
Check Treatment

F. Michael SCHULTZ, Petitioner, v. The CADLE COMPANY, Respondent.

No. D-2308.

Supreme Court of Texas.

May 5, 1993.

825 S.W.2d 151

new trial. Ordinarily, an appellate court should render judgment after sustaining a complaint as to the legal sufficiency of the evidence. See

. However, in
, we sustained a no evidence point but nonetheless remanded for a new trial because “we do not have before us the appellate predicate for a rendition.”
. Here, the State also failed to lay such a predicate.

When reversing trial court judgments, “the [appellate] court shall proceed to render such judgment or decree as the court below should have rendered....” Tex. R.App.P. 81(c) (emphasis added). Because the State requested only a new trial on the premises defect theory, that was the only relief to which it was entitled. See, e.g.,

;
;
.1 Accordingly, pursuant to Tex.R.App.P. 170, without hearing oral argument, a majority of this court grants the Horrocks’ application for writ of error, reverses the judgment of the court of appeals and remands this case to the trial court for further proceedings in accordance with this opinion.

ENOCH, J., not sitting.

David W. Evans, Dallas, for petitioner.

Michael L. Jones and Randall K. Lindley, Dallas, Bert Vee Massey, II, Brownwood, Eddie Vassallo and P. Anne Brewster, Dallas, for respondent.

PER CURIAM.

The order of this court of December 31, 1992, granting the application for writ of error as amended is withdrawn, as the application was improvidently granted. In denying this application, we neither approve nor disapprove of the court of appeals’ opinion.

. The application is hereby denied.

Justice ENOCH not sitting

Notes