Villanueva v. State

OPINION ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

Appellant was convicted by a jury of burglary of a habitation. Punishment was assessed by the trial court at 10 years in the Texas Department of Corrections. On appeal the San Antonio Court of Appeals reversed the conviction and ordered an ac*245quittal. Villanueva v. State, 711 S.W.2d 739 (Tex.App. — San Antonio 1986).

The State raises one ground for review. We agree with the Court of Appeals that reversal is required. However, in their opinion, the San Antonio Court stated, “The appellant may, however, be retired for the lesser included…