U.S. Court of Appeals for the Fifth Circuit, 1979

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

U.S. Court of Appeals for the Fifth Circuit · Decided March 21, 1979 · Coleman, Fay, Per Curiam, Rubin

591 F.2d 1207; 1979 U.S. App. LEXIS 16060 (Federal Reporter, Second Series)

Opinion

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.

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