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Jesus REICH-BACOT, Appellant, v. The STATE of Texas, Appellee.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of murder and sentenced to confinement for life and a $10,000 fine. Tex. Penal Code § 19.04(a)(1). The Court of Appeals found the trial judge erred in failing to instruct the jury on self defense. Reich-Bacot v. State, 914 S.W.2d 666, 668-669 (Tex.App. — Texarkana 1996). The Court of Appeals did not perform a harm analysis but instead summarily reversed and remanded the case to the trial court for a new trial. Id., 914 S.W.2d at 669.

In Hamel v. State, 916 S.W.2d 491, 494 (Tex.Cr. App. 1996), we held a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984), was appropriate in cases where the trial judge erred in refusing a charge on a defensive theory. See generally, Tex. Code Crim. Proc. Ann. art 36. 19; and, Atkinson v. State, 923 S.W.2d 21, 25-27 (Tex.Cr.App. 1996). Therefore, the Court of Appeals erred in reversing the judgment of the trial court without first conducting a harm analysis.

Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to that court to conduct such a harm analysis.

Judgment of Court of Appeals vacated; cause remanded to Court of Appeals.

McCORMICK, P.J., and KELLER, J., dissent.

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REICH-BACOT v. STATE
(Oct 30, 1996)