Adams v. State

624 S.W.2d 568, 1981 Tex. Crim. App. LEXIS 1177

Opinions

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

Our prior opinions on remand from the Supreme Court of the United States are withdrawn.

In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court held that in appellant’s trial prospective jurors were excluded on grounds inconsistent with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), with the result that the death penalty could not be carried out. Subsequently the Governor signed an executive order commuting appellant’s punishment to life. There is now no error in the case, and the judgment of conviction will be affirmed. Whan v. State, Tex.Cr.App., 485 S.W.2d 275.

The dissent attempts to distinguish Whan v. State, supra, on the basis of the bottom line decision by the Supreme Court in this case. The bottom line in Adams v. Texas, supra, said:

“The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty.”

This disposition of the case simply reversed the judgment of this Court in part, 577 S.W.2d 717. It has no direct effect on the as yet unaltered judgment of the trial court. Only upon entry of a new judgment of this Court and the issuance of this Court’s mandate upon that judgment would the trial court’s judgment, and with it the jury’s death-producing verdict, be set aside. The dissent’s argument that there was “nothing to commute” when the Governor entered his order presumes a direct impact by the Supreme Court decision upon the jury’s verdict, outside of time and the orderly course of judicial proceedings. The sequence of events, however, is otherwise. The Supreme Court decision initiated a sequence of proceedings which, if allowed to run a natural course, would have resulted in there being “nothing to commute.” The Governor’s order, however, reached the punishment before the judicial sequence did, and it is the judiciary, not the executive branch,,, that is left with no death penalty upon which to exercise its power.

The Governor having commuted the death penalty, and, consequently, there being no such penalty for this Court to set aside, “the proper course for this Court to follow is to again affirm the judgment of the trial court.” Whan v. State, supra.

The State’s motion for rehearing is granted and the judgment is affirmed.