Opinion
No. 014-87.
March 18, 1987.
Appeal from 177th Judicial District, Harris County, Frank Price, J.
Connie B. Williams, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty. and David E. Brothers, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
Appellant was convicted by a jury of aggravated rape. The jury assessed punishment at 60 years in the Texas Department of Corrections. On appeal the Houston [14th] Court of Appeals affirmed the conviction. Hardy v. State, 722 S.W.2d 164 (Tex.App. — Houston [14th] 1986).
Appellant raises three grounds for review, one of which asserts the Court of Appeals was in error in holding that Batson v. Kentucky, 476 U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) is not to be applied retroactively. In the period since
the Court of Appeals delivered their opinion in this cause the United States Supreme Court has determined that Batson v. Kentucky, supra, is to be applied to all cases which were still pending on direct appeal at the time Batson was delivered. Griffith v. Kentucky, ___ U.S. ___, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
Without passing on the merits of appellant's other grounds for review, we find appellant's petition must be granted on this ground, and the cause remanded to the Court of Appeals for reconsideration in light of Griffith v. Kentucky, supra.
ONION, P.J., and W.C. DAVIS and TEAGUE, JJ., would grant across the board.
TEAGUE, J., also dissents to the remand.