Walter Lee Brown v. W. J. Estelle, Jr., Director, Texas Department of Corrections, 591 F.2d 1207

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

591 F.2d 1207

5th Cir.

1979

Check Treatment

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. 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.

AFFIRMED.