Wistong Riascos Torres v. State ( 1991 )

Torres-W v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-90-010-CR

        WISTONG RIASCOS TORRES,

                                                                              Appellant

        v.

        THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 89-502-C

OPINION ON REHEARING

          On October 9, 1991, holding that unadjudicated offenses and their details are not admissible in non-capital trials, we reversed the judgment and remanded the cause for a new punishment hearing. The State complains on rehearing that we failed to do a harm analysis. See Tex.R.App.P. 81(b)(2).

          A jury found Appellant guilty of aggravated possession with intent to deliver a controlled substance: cocaine, and assessed his punishment at twenty years in prison and a $50,000 fine. See Tex. Health & Safety Code Ann. sec. 481.112(d) (Vernon 1991).

          During the punishment phase, evidence was admitted concerning an unadjudicated offense relating to the possession of cocaine in the amount of 245 grams. This alleged offense occurred approximately five months after his arrest in this case. Based on the record as a whole, we cannot determine beyond a reasonable doubt that the admission of this unadjudicated offense at the punishment phase did not contribute to the Appellant's twenty-year sentence and the maximum fine, $50,000. See Tex.R.App.P. 80(b)(2).

          Accordingly, we deny the State's motion for a rehearing.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Rehearing denied

Opinion delivered and filed November 6, 1991

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