IN THE TENTH COURT OF APPEALS No. 10-12-00247-CR DAVID FRITZE, JR., Appellant v. THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2011-2011-C1

MEMORANDUM OPINION

Appellant, David Fritze, Jr., was convicted of possession of a controlled substance and sentenced to two years in a state jail facility. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). Fritze complains in three issues that the trial court erred in ruling on an objection and motion for mistrial based upon the State’s argument during the punishment phase of trial regarding Fritze’s failure to testify. The State concedes both error and harm. We agree. See Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011). Accordingly we reverse the trial court’s judgment regarding punishment only and remand this proceeding to the trial court for a new trial only on punishment.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Reversed and remanded Opinion delivered and filed February 7, 2013 Do not publish [CR25]

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