No. 382-97 | Tex. Crim. App. | Dec 2, 1998
OPINION
The opinion of the Court was delivered
A jury convicted Appellant of murder and assessed her punishment at confinement for thirty years. The Court of Appeals originally affirmed the .conviction, holding that Appellant waived her right to a jury of twelve and agreed to proceed with eleven jurors. Harrell v. State, 923 S.W.2d 104" court="Tex. App." date_filed="1996-05-02" href="https://app.midpage.ai/document/harrell-v-state-1639891?utm_source=webapp" opinion_id="1639891">923 S.W.2d 104 (Tex.App.— Houston [14th Dist.] 1996). Appellant filed a petition for discretionary review, arguing that a jury of twelve cannot be waived. We granted Appellant’s petition, vacated the Court of Appeals’ opinion, and remanded for reconsideration in light of Ex parte Hernandez, 906 S.W.2d 931" court="Tex. Crim. App." date_filed="1995-09-13" href="https://app.midpage.ai/document/ex-parte-hernandez-1713889?utm_source=webapp" opinion_id="1713889">906 S.W.2d 931 (Tex.Crim.App.1995). Harrell v. State, 930 S.W.2d 100" court="Tex. Crim. App." date_filed="1996-10-02" href="https://app.midpage.ai/document/harrell-v-state-5091264?utm_source=webapp" opinion_id="5091264">930 S.W.2d 100 (Tex.Crim.App.1996).
On remand, the Court of Appeals reversed the conviction, holding that under Hernandez, a defendant accused of a felony may not waive the right to a jury composed of twelve persons. Harrell v. State, 938 S.W.2d 162" court="Tex. App." date_filed="1996-12-30" href="https://app.midpage.ai/document/harrell-v-state-5092006?utm_source=webapp" opinion_id="5092006">938 S.W.2d 162 (Tex.App. — Houston [14th Dist.] 1997). The State has filed a petition for discretionary review of that decision. After the Court of Appeals handed down its opinion on remand, this Court decided Hatch v. State, 958 S.W.2d 813" court="Tex. Crim. App." date_filed="1997-12-10" href="https://app.midpage.ai/document/hatch-v-state-1616490?utm_source=webapp" opinion_id="1616490">958 S.W.2d 813 (Tex.Crim.App.1997), which overruled Hernandez and held that a defendant may waive his statutory right to a jury of twelve members. See also Roberts v. State, 957 S.W.2d 80" court="Tex. Crim. App." date_filed="1997-12-10" href="https://app.midpage.ai/document/roberts-v-state-2460276?utm_source=webapp" opinion_id="2460276">957 S.W.2d 80 (Tex.Crim.App.1997).
In this situation, this Court would normally grant the State’s petition and remand in light of Hatch and Roberts. However, a remand is unnecessary in this case, since the Court of Appeals has already made the factual determination that Appellant waived a jury of twelve, and we have since determined that such a waiver is permissible. There is no issue left for the Court of Appeals to resolve. The Court of Appeals’ conclusion in its origi