
    John Anthony LOVE, Appellant, v. The STATE of Texas, Appellee.
    No. 1204-94.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 8, 1995.
    Keith S. Hampton, Austin, for appellant.
    Robert Smith, Darla Espinoza, Assistant Dist. Attys., Austin, and Robert A Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of Theft and his punishment assessed at confinement for one year. The Third Court of Appeals affirmed in Love v. State, (Tex.App.—Austin, No. 03-92-538-CR, delivered September 14, 1994). We granted discretionary review to test the vitality of our holding in Eisenhauer v. State, 754 S.W.2d 159 (Tex.Crim.App.1988) after Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). However, it now appears that our decision to do so was improvident. Accordingly, the instant cause is hereby dismissed. As always, refusal or dismissal of a petition for discretionary review implies no decision on the merits.

CLINTON, J.,

dissents with note:

Believing we are duty bound to decide the simple question of law involved and then remand to court of appeals to apply it, I respectfully dissent.  