Opinion on Appellant’s Motion for Rehearing
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- Opinion on Appellant’s Motion for Rehearing
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The opinion
OPINION
ON APPELLANT’S MOTION FOR RE-HEARING
ONION, Judge.
Since the time of our opinions on original submission, the United States Supreme Court in McConnell v. Rhay and Stiltner v. Rhay, 393 U.S. 2 , 89 S.Ct. 32 , 21 L.Ed.2d 2 , has held that their decision in Mempa v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 , is to be given retroactive application.
The majority opinion on original submission affirming this cause was bottomed on the fact that the United States Supreme Court had not, at the time, held Mempa v. Rhay, supra, to be retroactive. It now has done so and the appellant is entitled to a reversal of his conviction.
The appellant is remanded to the custody of the Sheriff of Bexar County to answer the indictment in Cause No. 53,953 pending in the 175th District Court.
The order affirming the conviction is set aside, the appellant’s motion for re-hearing is granted, the judgment is reversed and the cause remanded.