*1 order However, is without The of reversal set aside is affirmed. or reduce to punishment by a assessed Ocker Opinion approved the Court. 288. Tex.Cr.App., v. And, may solely on the while we remand dissents for reasons stated punishment punishment was issue of where dissenting opinion in his court,5 originally assessed we not so was do where jury.6
DOUGLAS, J., participating. not having The found case, its is the same as the instant status a agree
if had to on been unable State, supra. verdict. See Ocker reversed and cause The Appellant, HARRIS, Carl Bruce DOUGLAS, J., participating. not Texas, Appellee. STATE 42896. No. reached, but can- in the results Appeals of Texas. had been if commutation agree not 1972. had been granted after the Sept. 25, 1972. by the United States set aside Court, be reach- result would a different in Whan dissent
ed. this writer’s See 1972). (Tex.Cr.App. S.W.2d FOR ON STATE’S MOTION REHEARING DALLY, Commissioner. appear that
It has now been made upon of the Board the recommendation Paroles, proclamation com- Pardons and sentence from death muting was, day imprisonment 29th August, signed by the Honorable of this State. Preston rehearing is grant- motion ed. Harris and Whan (1972) State, Tex.Cr.App., g. 432 S.W. 6. Ellison v. Miller v. e. 2d 955. *2 imposes it “Judgment, insofar as sentence, reversed and case re-
the death Appeals manded to the Court proceedings.” Harris of Texas for further 2291, Texas, 947, 403 91 29 U.S. S.Ct. (1972). L.Ed.2d 859 by the Commutation of sentence Gov sought granted has not or ernor been State, case. Tex.Cr. instant See Whan
App.,
(1972).
This
Court
pun
or
reduce
jury.
ishment
Turner
State,
(1972);
282
Ocker v.
288. We
solely
pun
cannot remand
on the issue of
ishment where
was assessed
Ellison
The United States Court hav- found that imposed in this its status same as if had been unable to agree on a verdict. Turner v. supra; Ocker v. is reversed and the cause
Opinion approved by the Court. Houston, P. Gray, Gregg, M. Will C. G. 1971, 28, the United States Su- On June Reddell, appellant. Jr., City, Texas for preme Court ordered: Damiani, Galveston, Atty., Dist. Judgment, . . insofar as “. Jules Vollers, Atty., D. Robert sentence, and case reversed Jim Huttash, Austin, Atty., A. for Asst. State’s Ap remanded to the Court of Criminal the State. peals proceedings. of Texas for further 510, Illinois,
Witherspoon
391 U.S.
1770,
Boul
(1968);
S.Ct.
pellant’s the mandate of contention parte Ex Paul Russell CRAIN. Witherspoon in the selection was violated No. 45887. just jurors. hint Without how Appeals misinterpreted or mis- of Criminal have Texas. authorities, these the death *3 action, was set in this writer’s aside. Such Denied Oct. opinion, judicial ais waste of time. We speculate are left to how these authorities
are be in the future. tempted I urge am the court to re- affirm judgment hope with the sincere give that next time the Supreme Court will necessary guidelines. Upon us considera- tion of large number of cases from
and other states wherein the death was set aside enlightenment same date without more than given in this I am convinced that a only delay reaffirmance would
possible appellant re-trial
any real prospect achieving the de- sired result.
Therefore, the result reached. AMENDED MO-
ON STATE’S FOR REHEARING TION ODOM, Judge. 9, 1972, Honorable Pres- August ton pellant a of sentence from commutation imprisonment.
death to pen imposition of the death alty longer possible. is no The order of revers remanding and “insofar is satis the death sentence”
fied. See S.W.2d 275 For Re- Amended Motion hearing granted. is The order of reversal aside, set affirmed. for reasons stated dissents opinion dissenting
in his in Whan v.