Valdomero H. Coy v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





ON REMAND



NO. 3-91-211-CR



VALDOMERO H. COY,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0911800, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

PER CURIAM

The Court of Criminal Appeals reversed our original judgment and remanded the cause for reconsideration in light of that court's opinion in Grunsfeld v. State, No. 1037-91 (Tex. Crim. App. Oct. 28, 1992). Coy v. State, No. 842-92 (Tex. Crim. App. Dec. 23, 1992) (not designated for publication). In Grunsfeld, the court held that article 37.07, section 3(a) of the Code of Criminal Procedure, as amended in 1989, does not permit the admission at the punishment stage of evidence of unadjudicated offenses committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1993). This Court reached the opposite conclusion on original submission in this cause, overruled appellant's point of error complaining of the admission of an unadjudicated offense, and affirmed the district court judgment convicting appellant of aggravated assault. Coy v. State, 831 S.W.2d 552 (Tex. App.--Austin 1992).

The jury convicted appellant after hearing evidence that he shot Leonard Guerrero in the face with a shotgun, blinding him in one eye. At the punishment stage, the jury heard evidence that appellant's reputation for being a peaceable and law-abiding citizen was bad, and that he had been previously convicted of unlawfully carrying a weapon. The jury also heard the testimony of Joe Salazar, who said that appellant fired six pistol shots at him approximately one month before the charged offense. In light of Grunsfeld, it is clear that the trial court erred by admitting Salazar's testimony. While the other evidence would certainly warrant the punishment assessed, this Court cannot conclude beyond a reasonable doubt that the erroneous admission of the unadjudicated offense made no contribution to the punishment. Tex. R. App. P. Ann. 81(b); Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). The first point of error is sustained. Appellant's second point of error also complains of error at the punishment stage. Because of our disposition of the first point of error, we need not address the second.

The judgment of conviction is reversed and the cause is remanded for a new trial on punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993).

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Reversed and Remanded

Filed: February 10, 1993

[Do Not Publish]