Opinion
No. 171-87.
November 9, 1988.
Appeal from the 175th Judicial District Court, Bexar County, Phil Chavarris, Jr., J.
Davis R. Weiner, court appointed on appeal, San Antonio, for appellant.
Fred G. Rodriguez, Dist. Atty. and Phylis West, Juan Chavira Raymond J. Hardy, Jr., Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appeal is taken from a conviction for the offense of aggravated sexual assault. After finding appellant guilty, the jury assessed punishment at 25 years' imprisonment.
On direct appeal, appellant argued the trial court erred in instructing the jury on the law concerning good time and parole, inasmuch as the charge is predicated upon an unconstitutional statute. The Court of Appeals rejected appellant's challenge to Article 37.07, § 4, V.A.C.C.P. Gaines v. State, 723 S.W.2d 302 (Tex.App. — San Antonio 1987).
In his petition for discretionary review, appellant urges the Court of Appeals erred in holding Article 37.07, § 4, supra, is constitutional. We find appellant is correct.
In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1988), this Court determined that Article 37.07, § 4, is unconstitutional. Under Rose, supra, if a harmless error analysis is necessary, such analysis should be conducted under the guidelines of Tex.R.App.P. 81(b)(2).
The judgment of the Court of Appeals is vacated and this cause is remanded to that court for further proceedings consistent with this opinion.