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llth Court of Appeals Eastland, Texas Opinion

John Walton Alexander

Appellant Vs. No. 11-84-263-CR — Appeal from Erath County State of Texas

Appellee

ON REMAND

The jury convicted John Walton Alexander of aggravated sexual assault of a child [TEX. PENAL CODE ANN. sec. 22.021 (Vernon Supp. 1988)] and assessed his punishment at confinement for 75 years and a fine of $10,000. The facts are set forth in this Court's original opinion dated May 30, 1985 [692 S.W.2d 563] and in the Court of Criminal Appeals opinion dated June 29, 1988 [753 S.W.2d 401].

The trial court and this Court relied upon the holdings in McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App. 1974), and Johnston v. State, 418 S.W.2d 522 (Tex.Cr.App. 1967), in overruling appellant's objection to proof before the jury of an extraneous sexual offense involving another small child. McDonald and Johnston were subsequently overruled in Boutwell v. State, 719 S.W.2d 164 at 179 (Tex.Cr.App. 1985), and the Court of Criminal Appeals vacated the judgment of this Court and remanded the cause for this Court to determine whether the trial court erred in permitting proof of the extraneous offense and whether this was harmful to appellant under TEX.R.APP.P. 81(b)(2).

Under Boutwell we find error, and we are unable [under Rule 81(b)(2)] to determine "beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment." See also Turner v. State, 754 S.W.2d 668 (Tex. Cr.App. 1988).

The judgment of the trial court is reversed, and the cause is remanded.

PER CURIAM

October 6, 1988 Do not publish. See TEX.R.APP.P. 90.