Rogers v. State of Texas

Per curiam. RICHARDSON, J., filed a concurring opinion in which HERVEY, WALKER, and SLAUGHTER, JJ., joined. KELLER, P.J., and KEEL, J., dissented. OPINION Appellant was convicted by a jury of burglary of a habitation.[1] On direct appeal, appellant challenged the trial court’s failure to instruct the jury on certain defensive issues. The court of appeals held that error in the jury charge, if any, was harmless. Rogers v. State, 527 S.W.3d 329, 335 (Tex. App. — Corpus Christi 2017). We granted  appellant’s petition for discretionary review and reversed, holding that if error existed, it was harmful. Rogers v. State, 550 S.W.3d 190, 196 (Tex. Crim. App. 2018). Accordingly, we remanded to the court of appeals to decide, in the first instance, whether the trial court erred in failing to instruct on the defensive issues. Id. On remand, the court of appeals held that the trial court had not erred in failing to instruct on the requested defensive issues. Rogers v. State, No. 13-15-00600-CR (Tex. App.–Corpus Christi Jan. 10, 2019)(not designated for publication). Appellant again filed a petition for discretionary review which this Court granted. On October 26, 2022, we issued an opinion reversing the court of appeals and holding that appellant was entitled to jury instructions on the defensive issues. Rogers v. State, No. PD-0242-19 (Tex. Crim. App. Oct. 26, 2022). The State has now filed a “Motion to Withdraw Appellate Opinions and Permanently Abate the Appeal” as a result of appellant’s death which occurred in March of 2022. A copy of the death certificate is attached to the State’s motion. We grant the State’s motion, dismiss Appellant’s petition for discretionary review, withdraw our 2018 and 2022 opinions, and order the court of appeals to withdraw its 2017 and 2019 opinions and permanently abate the appeal. See Brown v. State, 439 S.W.3d 929 (Tex. Crim. App. 2014)(where defendant died while rehearing motion pending, Court dismissed petition and rehearing motion, withdrew its opinion, and ordered court of appeals to withdraw opinion and permanently abate appeal). Delivered October 18, 2023 Publish