            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1472-12



                                 THE STATE OF TEXAS

                                              v.

                     BRANDON CORNELIUS HARRIS, Appellant



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE TENTH COURT OF APPEALS
                         BRAZOS COUNTY



       Per curiam.

                                       OPINION


       Appellant was charged with murder under Texas Penal Code § 19.02(b)(2). He was

found guilty and sentenced to thirty years in prison. On appeal, he argued that the trial court

erred in failing to charge the jury on the lesser-included offense of manslaughter. The Court

of Appeals disagreed, holding that manslaughter can never be a lesser-included offense of
                                                                                   HARRIS - 2


murder under § 19.02(b)(2). Harris v. State, No. 10-11-00035-CR, 2012 Tex. App. LEXIS

5201, at *8 (Tex. App.—Waco June 27, 2012) (not designated for publication) (citing

Cavazos v. State, 329 S.W.3d 838 (Tex. App.—El Paso 2010, pet. granted)).

       Appellant has filed a petition for discretionary review of this decision, noting that this

Court granted review in Cavazos. We recently handed down our opinion in Cavazos v. State,

No. PD-1675-10, 2012 Tex. Crim. App. LEXIS 1387 (Tex. Crim. App. October 31, 2012).

In Cavazos, we held that manslaughter can be a lesser-included offense of murder under §

19.02(b)(2). Id. at *19.

       The Court of Appeals in the instant case did not have the benefit of our opinion in

Cavazos. Accordingly, we grant Appellant’s petition for discretionary review on grounds

one and two, vacate the judgment of the Court of Appeals, and remand this case to the Court

of Appeals in light of our opinion in Cavazos. Ground three of Appellant’s petition is

refused.




DATE DELIVERED: December 19, 2012
DO NOT PUBLISH
