
    Arturo E. BATRES, Appellant, v. The STATE of Texas, Appellee.
    No. 326-87.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 14, 1988.
    Gerald H. Goldstein, San Antonio, for appellant.
    Amado Abascal, III, Dist. Atty., Eagle Pass, Robert Huttash, State’s Atty. and Carl E.F. Dally, Sp. Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Arturo E. Batres, henceforth appellant, was convicted by the jury of committing the offense of sexual assault. The trial judge assessed appellant’s punishment at eleven (11) years’ confinement in the Department of Corrections. The Fourth Court of Appeals reversed the trial court’s judgment after it found that the trial judge had abused his discretion in overruling appellant’s motion for new trial that was based on the jurors’ thorough discussion of appellant’s failure to testify at trial. See Batres v. State, 727 S.W.2d 83 (Tex.App.San Antonio 1987).

We granted the State’s Petition for Discretionary Review in order to examine the correctness of the holding by the court of appeals.

After careful review of the briefs of the respective parties and the opinion of the court of appeals, we have determined that the State’s Petition for Discretionary Review was improvidently granted.

The State’s Petition for Discretionary Review is therefore dismissed.

ONION, P.J., and CLINTON, W.C. DAVIS and McCORMICK, JJ., dissent to the conclusion that the State’s Petition for Discretionary Review was improvidently granted.  