           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                      No. PD-098-12



                           RODERICK PARKER, Appellant

                                             v.

                                THE STATE OF TEXAS

     ON THE APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FIFTH COURT OF APPEALS
                       GRAYSON COUNTY


       Per curiam.


       Appellant was convicted of retaliation and sentenced to eight years’ imprisonment.

On appeal, Appellant claimed that the trial court gave an erroneous definition of “unlawful”

in the jury charge. Appellant’s first issue on appeal argued that this definition of unlawful

constituted an improper comment on the weight of the evidence. His second issue argued

that the instruction was erroneous, even if it was not a comment on the weight of the

evidence, and that he was harmed by the erroneous instruction. The court of appeals
                                                                                PARKER -- 2

affirmed, holding that the trial court’s definition of unlawful was not an improper comment

on the weight of the evidence. Parker v. State, No. 05-10-00878-CR (Tex. App.–Dallas,

December 15, 2011). The court of appeals read Appellant’s second claim as relating only

to harm arising from a comment on the weight of the evidence. Having found that the

instruction was not a comment on the weight of the evidence, the court did not address that

claim. Appellant petitioned this Court for discretionary review.

       Appellant contends that the court of appeals did not address his second point of appeal

as required by Davis v. State, 817 S.W.2d 345 (Tex. Crim. App. 1991). Appellant’s brief on

appeal argued that the jury charge erroneously defined unlawful, even if that definition was

not a comment on the weight of the evidence. Appellant specifically asserted that the

definition of unlawful was an incorrect statement of Texas law and he argued that he had

shown some harm as required by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

In concluding that this point of error concerned only harm from an alleged comment on the

weight of the evidence, the court of appeals failed to consider Appellant’s claim that the

definition of the term unlawful was jury charge error in general.

       Therefore, we vacate the judgment of the Court of Appeals and remand for that court

to consider Appellant’s second issue on appeal.




DELIVERED: April 25, 2012

DO NOT PUBLISH
