Wood v. State

Apr 15, 1992
141-92
Reporters:
, ,
Before:
Per Curiam

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of aggravated assault. The jury assessed punishment at five ‍​​​‌‌‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌​‌​​‌​​‌‌​​‌​‌​‌​​​‌‌​​‌‌​‌‌​​‌​​​‌​​‌‌‌​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​‌‌‍years imprisonment and a fine of $5,000, but recommended that both be probated. This conviction was affirmed. Wood v. State, 822 S.W.2d 213 (Tex.App.—Houston [1st] 1991).

Appellant’s petition for discretionary review contends that the Court of Appeals erred in failing to address one of the arguments in support ‍​​​‌‌‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌​‌​​‌​​‌‌​​‌​‌​‌​​​‌‌​​‌‌​‌‌​​‌​​​‌​​‌‌‌​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​‌‌‍of his first point of error below. Appellant’s first point contended that a written statement given to police by the complainant was improperly admitted because it contained inadmissible hearsay and because it constituted improper bolstering. The Court of Appeals held that appellant had ‍​​​‌‌‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌​‌​​‌​​‌‌​​‌​‌​‌​​​‌‌​​‌‌​‌‌​​‌​​​‌​​‌‌‌​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​‌‌‍failed to preserve his claim that the statement contained inadmissible hearsay, but made no reference to his argument that admission of the statement constituted improper bolstering of the complainant’s testimony.

*14 A Court of Appeals shall hand down a written opinion which shall be as ‍​​​‌‌‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌​‌​​‌​​‌‌​​‌​‌​‌​​​‌‌​​‌‌​‌‌​​‌​​​‌​​‌‌‌​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​‌‌‍brief as possible, but which shall address every issue raised and necessary to the final disposition of the case. Tex.R.App.Proc. 90(a). The Court of Appeals here failed to address appellant’s claim that admission of the statement constituted bolstering. Therefore, the judgment of the Court of ‍​​​‌‌‌‌​‌‌​​​​‌‌‌‌‌​‌‌​​‌​​‌‌​​‌​‌​​‌​​‌‌​​‌​‌​‌​​​‌‌​​‌‌​‌‌​​‌​​​‌​​‌‌‌​‌‌​​​​​​​‌‌​​​‌​‌​‌‌​‌‌‍Appeals is vacated and the cause is remanded to the Court of Appeals to address this argument. See Davis v. State, 817 S.W.2d 345 (Tex.Cr.App.1991).