Jacobs v. State , 824 S.W.2d 563 ( 1992 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of involuntary manslaughter. TEX.PENAL CODE ANN. § 19.05. The jury assessed his punishment at confinement for four years in the Texas Department of Criminal Justice, Institutional Division. On direct appeal, the Court of Appeals affirmed the conviction in an unpublished opinion, Jacobs v. State, No. 01-89-00195, 1990 WL 144041 (Tex.App.—Houston [1st] October 4, 1990).

The Court of Appeals decided appellant failed to make a prima facie showing to the trial court that the State purposefully discriminated in its use of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court of Appeals held that appellant’s bare claim that the State struck five blacks from the venire does not constitute, in and of itself, a prima facie case of discrimination. In reaching this decision, the Court of Appeals relied upon its decision in Smith v. State, 734 S.W.2d 694 (Tex.App.—Houston [1st] 1987). Jacobs v. State, slip op. at 3. On March 6, 1991, this Court granted appellant’s petition for discretionary review to determine whether the Court of Appeals erred in this decision.

We now find that our decision to grant appellant’s petition for discretionary review was improvident. Tex.R.App.Pro. 202(k).

With this understanding, we dismiss appellant’s petition for discretionary review.

It is so ordered.