WALTER LEE BROWN, PETITIONER-APPELLEE,
v.
W. J. ESTELLE, JR., DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT
WALTER LEE BROWN, PETITIONER-APPELLEE,
W. J. ESTELLE, JR., DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT
591 F.2d 1207
Court of Appeals for the Fifth Circuit (1979)
Caution
Cited by 10 cases
Opinion of the Court
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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