Brown, Coy, Jr. ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0701-04

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COY BROWN Jr., Appellant

v.

THE STATE OF TEXAS

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ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS EDWARDS COUNTY

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   The opinion was delivered per curiam. Keller, P.J., filed a dissenting opinion in which Cochran and Holcomb, JJ., joined.

O P I N I O N

Appellant was convicted of aggravated assault with a deadly weapon. The Court of Appeals reversed and remanded to the trial court for a new trial. Brown v. State, No. 04-03-00009-CR (Tex. App.--San Antonio March 3, 2004) (not designated for publication).

We granted discretionary review to address whether the trial court erred in including a culpable mental state in the jury instructions that was not alleged in the indictment. We further granted review to determine whether the Court of Appeals erred in finding egregious harm. We have determined that our decision to grant review was improvident. Therefore, the petition is dismissed.

DATE DELIVERED: June 15, 2005

DO NOT PUBLISH