            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                         NO. PD-0684-07


                        ROBERT ANTHONY PORTEOUS, Appellant

                                                 v.

                                    THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIRST COURT OF APPEALS
                             HARRIS COUNTY

       HERVEY , J., delivered the opinion for a unanimous Court.

                                         OPINION

       A jury convicted appellant of attempted capital murder of a police officer. We granted

discretionary review to address the decision of the court of appeals that appellant was not entitled

to a self-defense instruction on this offense.1 The ground upon which we granted discretionary

review states:



       1

      See Porteous v. State, No. 01-06-00419-CR, 2007 WL 926535 (Tex.App.–Houston [1st Dist.],
March 29, 2007).
                                                                                           Porteous–2

       The Court of Appeals erred in holding that Penal Code Sec. 9.31(b)(2), limiting the
       right to use force “to resist an arrest ... the actor knows is being made by a peace
       officer” disentitled appellant to the justification of self defense, because the evidence
       raised the possibility that appellant did not know an arrest was being made, that even
       if the jury believed he knew the person suddenly advancing on him with a gun was
       a peace officer, what appellant perceived in the circumstances was not an arrest
       (lawful or unlawful) but an attack.

(Emphasis in original).

       Having examined the record and briefs and considered the arguments in the case, we have

determined that our decision to grant review was improvident. We, therefore, dismiss appellant’s

petition for discretionary review as improvident.



                                                               Hervey, J.


Delivered: May, 7, 2008
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