*1 riam) (remand sufficiency you for second factual HECHT: Do it JUSTICE think was (remand review); Lofton, 777 S.W.2d 884 substantial? review); sufficiency third factual See also I ... COUNSEL: will have to concede Powers, Ratliff,
William Jr. & Jack Another in this court I it that would consider to be Look “No Evidence” and Evi testimony, your Insufficient substantial honor. dence,” (1991). 69 Tex.L.Rev. appeals, light court in that the fact testified, only experts two there were who case, however, presents This a textbook argument I think that the that would be example appropriate of the of our exercise substantially that would not be sufficient responsibility appeals, direct the court enough to sustain the verdict. But reversing insufficiency grounds, when something appeals that it the court of the evidence to the in “detail relevant issue your I hon- should consider. concede that why clearly jury’s consideration and state or. finding factually insufficient or is so against great weight preponderance respondents’ attorney argu- made no to manifestly unjust; why it shocks the Pool; against applicability ment to the conscience; clearly demonstrates bias.” contrary, he precepts. endorsed its His re-
Pool,
berg by over mph.
JUSTICE HECHT: But there is also then
testimony that And that is he didn’t? the court appeals’ opinion. Would
that be material? I
COUNSEL: would think would be significant testimony, your honor. It is a MARTINEZ, Raymond Appellant, DeLeon Molberg_ party, statement of a Mr. you JUSTICE HECHT: So then do con- go
cede has to back? Texas, Appellee. The STATE Well, put myself I COUNSEL: hate to No. 70988. position, judge. But I would have to.... Texas, Appeals Court Criminal inescap- It seem JUSTICE HECHT: does right? Is that able. June honor, testimony, your If that
COUNSEL: testimony, substantial think that un- I Rehearing Denied Oct. any test this court here would have to der the case direction to send back with the specif- appeals
the court of consider testimony.
ic
Eugene Jones, appointed appeal, on court Houston, appellant. Jr., Holmes, Atty., B. Carol M.
John Dist. Gutierrez, Cameron Roberto Asst. Dist. Huttash, Houston, Attys., and Robert State’s Austin, Atty., State. Inten- pretrial Appellant filed Motion Of
OPINION Judg- A Under tion to Show Defendant Was BAIRD, Judge. Insanity At Time Of Commis- ment Of hearing, motion This At the Of Offense. sion murder. Appellant capital was convicted of purported to which documents were tendered 19.03(a)(2).1 TexJPenal Code Ann. adjudicated insane appellant was show that statutory jury affirmatively answered 10, 1967, April in Cause No. Tex.Code Crim. issues under the District Court of Comanche art. 37.071.2 was sen- Proc.Ann. documents further indicate County. The (e). Appeal this tenced death. Id. 'cause, 21, 1968, in the same that on October (h). Court is automatic. Id. at We will *4 Fi- appellant was sane. determined affirm. 30,1969, of nally, superintendent the on June challenge does not the sufficien- Appellant Hospital that trial Rusk notified State cy con- of the evidence to sustain either his discharged had because that been or affirmative answers to the stat- viction the sanity. his of the restoration of Therefore, utory punishment will issues. only necessary the set forth those facts documents, objected Appellant to the disposition points of of error. properly contending they were not authenti See, cated or certified. Tex.R.Crim.Evid.
II.
ruling
his
withheld
901. The trial
hearing
parties
recessed the
to allow
Insanity
and address the issues
review the documents
However,
hearing
two,
never
re
raised.
point
con
on the
and the trial
never ruled
sumed
prove
sanity
tends the
failed to
his
had
State
Therefore, appellant’s complaint on
motion.
adjudication
a prior
been restored after
52(a).
appeal
preserved. Tex.R.App.P.
is
insanity.3
general presumption
There
ais
sanity and the defendant bears the burden of
However,
arguendo
assuming
evidence,
proving, by preponderance
of the
sanity
preserved,
appellant’s
was
was
we find
insanity at
his
time
the conduct
his
for the
of-
not an issue at
instant
charged. Riley v.
830 S.W.2d
hearing, ap-
At
fense.
the aforementioned
also,
(Tex.Cr.App.1992).
See
Breland
pellant’s counsel stated:
(Tex.Cr.App.1973).
his to stand trial before the way. By do it not going to this into the 10-day period, he shall the same time proof, testify, burden of the failure to file notice of his intention to offer evidence explaining things jury not those to the insanity defense. witness, parties, accomplice as well as
(b) timely pursu- Unless notice is filed let’s see ... (a) section, ant to Subsection this evi- certainly go The Court: You can that. over insanity on dence not defense is admis- Appellant: ... we would ask that good sible unless court finds that cause go prospective juror Court into each exists failure to notice. matters, strictly with those whether le- undisputed appellant It is that failed to com- gal, they so we could not see whether or ply Furthermore, § with art. 46.03 appel- understand all those matters in connec- pursue insanity lant did not defense be- tion with the trial. ask We would request fore be instruct- matters, any go Court to into those insanity. on ed the issue of things factual about the stuff would that [juror on question- be these information Having failed to raise the affirmative ... naires] sheets We would ask trial, insanity appellant defense of now go If Court into matters. those shifting seeks benefit of the burden of fashion, going proceed Court proof prior adjudication insanity. of a parties] right we feel have a [the However, we hold the burden does shift feelings know venire [the member’s] appellant and until unless raises the defense about all of law that we believe will insanity. Point of error two is overruled. may applicable be to the case as opposed doing, leaving some III. general do in law voir dire as we ordinary felonies. Individual Voir Dire any rate, Judge, At matters those are three, of error contends precluded conducting he was from individual may very
voir dire of the venire.6
Court: I
well do that.
The
8.01(a) provides:
5. Tex.Penal Code Ann.
three
6. Point
states:
prosecution
It is an affirmative defense to
appellant's right to
The trial court violated
that,
charged,
at the time of the conduct
separate
capital
potential
voir dire of
murder
actor, as a result of severe mental disease or
jurors.
defect, did not know that his conduct was
wrong.
pro-
panel of
to the entire
propound
shall
...
that we are concerned
Appellant:
concerning the
jurors questions
spective
about.
the ease on
applicable to
principles, as
may very
I
I
let
The Court:
well and will
doubt,
proof,
trial,
burden of
of reasonable
you know.
pre-
by grand jury,
return of indictment
individually
Appellant was allowed
innocence,
opinion.7
sumption of
concerning is-
question each veniremember
Then,
or defen-
of the State
on demand
capital
At that
sues relevant
murder.
dant,
examine each
either is entitled to
time,
objected
al-
that he was not
apart
individually and
juror
dire
on voir
individually
dire on the lesser
lowed
voir
may
panel, and
further
from the entire
included offense murder.
pro-
juror
principle
on
question the
any
questions,
such
ruled that
“as well
pounded
the court.
general
questions,” should
asked
other
any
held
Art. 35.17“does not
We
during
general voir dire.
way purport to restrict
discretion
conducting voir dire.”
for Review
B. Preservation
(Tex.
Williams
is not
State contends this
Cr.App.1983).
preserved
prop
for our
review.
order
analogous
contends
case
review,
appellate
erly preserve an issue for
(Tex.Cr.App.
Batten v.
trial case, appellant allowed In the instant was appeal.” tion will call for reversal on Clark individually the veniremembers voir dire (Tex.Cr.App. v. S.W.2d relating capital murder.8 as to the law 1980) (citations omitted). long have rec We by judge in procedure employed trial the legal ognized procedures princi that 35.17(2). art. Point er- this case satisfies ples surrounding capital punishment are best is ror three overruled. See, by individual voir dire. Tex. addressed 35.17, Special art. Code Crim.Proc.Ann. IV. Onion, Commentary, In Hon. John F. Jr. Formation of Venire deed, only individual voir dire available penalty. State seeks the death where the error, appel In his fourth 35.17(2) provides: Art. County jury selec lant contends Harris minorities, procedures wrongly excluded capital felony In case in which the tion a representing a fair penalty, denying him a venire seeks the death the court State questions limits "opinion” Appellant does not contend that time We held that includes imposed by judge "knowledge restricted his individu concerning the venirememfaers See, case,” Esquivel al dire. McCarter voir 1992). 1980). (Tex.Cr.App. (Tex.Cr.App. community.9 cross-section of At the time a compiled prior selected from “master list” appellant’s 5, 1987, trial Tex.Gov’t using Code Ann. to October names 62.001(e) § provided: registered County. voters in Harris county municipality a in which the trial, At appellant’s the time of Tex.Gov’t largest with population located 62.001(c) discretionary. §Ann. Code It may, county, jury more than one wheel list, county expand allowed a jury its approval of the court commissioners provided the commissioners court and dis- majority a judges district hav- judges agreed trict to do so. There no ing jurisdiction county, in the be reconsti- County evidence that the Harris commission- by using, source, tuted as an additional all judges agreed. court er’s district so names on the current list be furnished statutory being requirement There no by Department Safety, of Public show- persons holding wheel include all a ing county the citizens of the who hold a license, valid driver’s we find the trial valid Texas driver’s license other than a appellant’s did not in overruling err motion.11 county may Class P. The with contract Point error four is overruled. governmental another private unit person registration to combine voter V. Depart- list the list furnished Safety. ment Public Defining Deliberately 132, 1, Leg., § Acts Sept. 71st ch. eff. seven, points of error five and 62.001(c) Appellant 1989.10 contends contends the trial erroneous right conferred to a venire summoned ly “deliberately” defined at voir and in dire only voters, registered from a list but dire, charge.12 At voir county holding those residents driv- valid instructed the deliber er’s license. ately: quash moved to the venire and ... doing means a manner of an act char- for a recess to allow the formation of a venire resulting acterized from careful con- from all County holding residents Harris sideration. It is a in- conscious decision *7 hearing, valid driver’s license. At the evi- volving thought process a which embraces appel- dence established that the venire in willingness engage more than a mere in approximately lant’s case was summoned fif- the conduct. days prior 5, 1989, September teen the appearance Ceboski, date. Marion Harris charge deliberately The defined clerk,” County “jury testified the venire was follows: as 1991, 442, 1, 1, 9. Point of four Leg., § states: Acts 72nd Jan. ch. eff. appel- The overruling trial court erred in objection lant’s to the selection of members of jury pool precluded the in a which manner a previously 11. We have there held is no constitu significant minority population of the convict- registration in of a tional violation the use voter ing county. State, a list summon venire. DeBlanc 799 v. 701, and, (Tex.Cr.App.1990); Shelby S.W.2d 708 again § 10. Tex.Gov't Code Ann. 62.001 was State, 31, 479 S.W.2d 40 v. provides: amended in 1991. now 62.001 Test, also, 577, See United States v. 550 F.2d 581— (a) jury by wheel must be reconstituted (10th Cir.1976); and, Arlt, 593 United v. States using, as the source: (5th Cir.1978). F.2d 567 1295 (1) persons the registration names all on the current precincts voter lists all the in from county; the 12. Point of error five states: (2) all on a names current list to be fur- giving The trial court erred in a definition of by Department Safety, nished showing of Public "deliberately" objection during over defense county the citizens of the who hold a jury voir dire. valid Texas and the driver’s license citizens of Point of error seven states: county, persons other than who are dis- giving service, trial court in a definition qualified jury from who hold a valid "deliberately” objection personal over defense in the identification card certificate is- department. by charge jury punishment. sued court’s on
37 issue, opportunity first presents This our in first case special used As defining in judge errs meaning a trial “deliberately” has differ- decide whether word a sufficiency reviewing deliberately.13 In ent distinct from the word “intention- support an affirmative ally” previously evidence as that word defined punishment issue we have to the first charge guilt. in answer on held: “deliberately” in the as used The word doing special
first
issue means a manner of
properly
Court has
insisted
While this
resulting from
an act characterized
Legislature the
deferring to
task
upon
careful consideration: “A conscious deci-
deliberate,
defining
term
we have
involving thought process
sion
which em-
a
meaning in accordance
approximated its
in
engage
more than mere
braces
will
something
usage” as
more
with “common
the conduct.”
State,
intentional,
612
than
Heckert v.
549,
(Tex.Cr.App.1981), and
552
S.W.2d
deliberately has
been
definition
premeditation, Gran
something less than
frequent
in
In
capital appeals.
issue
Russell
(Tex.Cr.
State,
107, 123
viel v.
771,
(Tex.Cr.App.
v.
665
780
S.W.2d
cert, denied,
933,
97
App.1976)
U.S.
1983),
we held the trial
need not define
(1977),
a “con
53 L.Ed.2d
S.Ct.
deliberately
charge
the court’s
because
involving thought process
scious decision
ordinary
know
presumed
its
than
will to
embraces more
mere
which
meaning.
common
We have deferred to
engage in the conduct.”
Legislature
clarify
the difference between
Lane v.
intentional
deliberate.
(Tex.
Nichols v.
S.W.2d
(Tex.Cr.App.1987);
627-628
S.W.2d
Cr.App.1988). Although
Legislature
has
and, Russell,
word defined, precluded we have never liberate ent and distinct from the word “intention- a definition. Williams such ally” previously as that word was defined (Tex.Cr.App.1984), noted that and; charge guilt “de- the word would have been “a definition of deliberate liberately” special in the issue used first suggested the helpful,” and we Id. doing act character- means a manner case. Id. given definition in the instant exact resulting ized from careful consider- Accordingly, n. we hold involving “a ation: conscious decision defining judge did not err deliberate. *8 thought process; conduct which embraces overruled. Points of five and seven are error engage will in the more than mere to conduct.” VI. Marquez at art.
Id. 244. contended 37.071 finding of de- was unconstitutional because Arraignment necessarily made when the liberateness six, appellant kill- of con jury guilt in intentional In error determines “an failing to ar the trial ing.” disagreed at We and held tends Id. 243. jury.14 presence of the deliberately raign had him outside the and intentional “differ- However, arraigned appellant was meanings. we The contends ent distinct” State and jury prior to his presence of the propriety of the trial outside the did not address the 4, 320, supra. trial. at n. judge’s first See instruction. State, 412, error six states: 430 14. Point of 13. Satterwhite v. 858 (Tex.Cr.App.1993), the defendant contended Formally Failing Court Erred in to The Trial erroneously jury on the instructed Arraign Jury’s Appellant Presence. Outside deliberately. of the issue definition Id., appellate preserved at for review. not 430. once, purpose arraignment arraignment of subsequent is to fix the ... After identity necessary defendant’s and hear defendant’s trials it is not it be re plea. 155, peated. Tex.Code Crim.Proe.Ann. art. 26.02. Shaw v. 32 Tex.Cr.R. also, 588; See Collins Sims v. S.W. Tex.Cr.R. asking (Tex.Cr.App.1976). Simply 256; the defen- Myers 36 S.W. Tex. plead dant to to the indictment is not Cr.R. S.W. 938. arraignment. Tex.Code Crim.Proc.Ann. art. Steen v. Tex.Crim. S.W. requires: 36.01 (App.1922). Point of error six (a) being any impaneled A criminal overruled. proceed action ... shall cause in the
following order: VIII. 1. indictment or information shall Psychiatric Testimony jury by attorney to be read prosecuting.... points ap nine and ten special pleas, any, if shall be pellant testimony contends Dr. Walter counsel, by the read defendant’s and if Quijano, psychiatrist, process violated due plea guilty not also upon, relied and denied effective assistance it also be shall stated.... counsel.16 case, judge merely In the instant the trial trial, appellant Prior to filed a to motion indictment, plead asked require “provide the State to a list of all 36.01(a)(2), arraign art. and did not him call witnesses intended] presence jury.15 and, they be and the order will called in further,
Appellant they expected testify further contends he was what arraigned formally Appellant requested entitled to “that be after the about.” further conviction, required reversal his initial and the defense State presents immediately legal any his second trial. no a list did witnesses who authority for this testify contention. We have held: the first trial of this case following colloquy Montgomery]: Judge, object The record reflects the [Mr. be- would judge, attorney arraign- formally tween the State the fact that he has not been appellant: plead being required ed to the before indict- ment. afternoon, gen- THE Good COURT: ladies and ago. years THE COURT: Six tlemen. Montgomery]: [Mr. So be it. Gutierrez, would, you please, present Mr. if plea you COURT: Do want to enter his THE jury. to the indictment you want to? him him Yes, please [Mr. Gutierrez]: Honor. If it Your Montgomery]: objection. [Mr. {Whereupon, our Note the Court. following proceedings were by authority In the name the State presence hearing had duly organized Jury Grand Texas: The of Har- follows:} Texas, County, presents ris in the District indictment, THE COURT: To which tinez, Mr. Mar- Texas, County, Court of Harris in Harris you plead, guilty guilty? do how Texas, Martinez, County, Raymond DeLeon guilty, [Mr. Castillo]: Not Your Honor. defendant, styled hereinafter heretofore on first, your please pro- THE COURT: Call 13, 1983, July or about did then and there opening ceed to make an statement. *9 committing unlawfully while in the of course Yes, [Mr. Gutierrez]: Honor. Your attempting robbery and to commit the of Her- Chavis, style [sic.] man the hereinafter com- 16. Point error nine states: of plainant, intentionally of [sic.] the death cause shooting allowing complainant by complainant judge by prosecu- the the erred the The trial Against peace dignity present psychological punish- with a and tion to evidence at firearm. the of [out] of the State. ment with sufficient notice in violation signed guarantees. by process And that is of the Grand due Foreman Jury. Point of error ten states: indictment, judge allowing prosecu- THE To erred the COURT: which Mr. Mar- The trial tinez, you plead, psychological punish- guilty guilty? present do evidence at how not tion to thereby {Whereupon, following proceedings denying the were ment without sufficient notice appellant appointed hearing the effective of court held at the Bench outside assistance trial counsel. as follows:}
39 the and, and defen testimony be constitute “bad faith” whether designate what their will reasonably anticipated further, they have the phase the will dant could at which of trial State, motion, testimony. Stoker v. 788 hearing on called.” At the the the witness’ See, 1, (Tex.Cr.App.1989). Nobles judge 15 S.W.2d trial instructed State: 503, State, (Tex.Cr.App. v. 515 843 S.W.2d you to any If have as witnesses State, 1992); 558, 566 Bridge v. 726 S.W.2d spe- question punishment who not were State, and, Hightower v. (Tex.Cr.App.1986); cifically punishment phase called 920, (Tex.Cr.App.1981). 629 925 S.W.2d please give the last trial them to the De- fense. dialogue” Appellant agreed “ongoing to an wit- regarding supplementation of the State’s agreed provide The State to a list of the prosecu- ness list. On several occasions witnesses as follows: attempting tor he to locate an indicated was I doing don’t mind it on an State: testify concerning expert the sec- witness to basis, ongoing I but would like the record Quijano punishment ond issue. When file, my I opening to I am have reflect located, attorney promptly appellant’s open opened my plan file I to and leave prosecutor notified. We conclude did time, during during dire voir and all act in faith. bad prefer ongoing I would is to what have daily dialogue keep so I on basis can him testimony psychologists and Expert going abreast of what’s on. I don’t mind punish psychiatrists regarding the second doing that. commonplace. v. ment issue Estelle Smith, 454, 1866, Appellant: me, to 451 U.S. 101 S.Ct. Sounds reasonable Estelle, (1981); Judge. L.Ed.2d 359 v. Barefoot 3383, 880, U.S. 103 S.Ct. 77 L.Ed.2d conviction, appellant’s After but to (1983); Holloway v. 613 S.W.2d punishment phase, judge (Tex.Cr.App.1981); Fuller v. 502-503 parties punishment discussed the State’s wit- (Tex.Cr.App.1992); prosecutor nesses. informed trial (Tex.Cr. Amos 819 S.W.2d judge being that efforts were App.1991); Cook v. 821 S.W.2d testify psychiatrist made to locate con- and, Stoker, (Tex.Cr.App.1991); cerning second issue.17 The light widespread use S.W.2d at 8. prosecutor agreed promptly notify appel- testimony, prosecu coupled attorney any lant’s additional witnesses as regarding pres tor’s desire statements they Sunday evening were known. On type testimony, appellant ent this should prosecutor appellant’s pro- called counsel and reasonably testimony. anticipated such Qujjano’s description vided name and judge Accordingly, we hold the trial did not testimony following to be offered. Tues- allowing Quijano abuse his discretion objected day, appellant Quijano’s testimo- testify. Points of error nine ten ny Quijano because the State failed list overruled. Quijano a witness. The trial allowed testify. eleven, error allowing contends Notice of the State’s witnesses Quijano during in the courtroom remain upon given request. Young shall be testimony appellant’s brother and sist If provides: er.18 Tex.R.Crim.Evid. 613 testify allows a who witness to list, request appear party At of a the court shall does the State’s witness they prosecutor’s excluded so that can- consider whether the actions order witnesses prosecutor explained psychiatrist 17. The that a Point of eleven states: *10 judge because the trial had indicated needed allowing by trial erred the state’s The court appellant's Department records from the Texas testimony key pun- psychologist to to listen Corrections, including psychiatric of and evidence evidence of the witness ishment witnesses in violation demonstrating appellant’s twenty- during rule. five instances of misconduct his initial row, stay on death were inadmissable. witnesses, testimony
not predictions appellant.19 hear the of other about the may and appellant’s make the order its own we have reviewed trial numerous motion. objections appellant This rule does authorize ex- did make either (1) objections party objec- clusion a is a natural who of those at trial. When (2) person, employee an complaint officer or of a tion at trial is different from the person appeal, nothing defendant which natural preserved is not a raised on is for our designated State, representative by as its its at- review. Rezac v. S.W.2d (8) torney, person presence (Tex.Cr.App.1990). whose Point of thirteen is party shown to be essential to the overruled. (4)
presentation cause, victim, of his testify unless the victim is to and the court IX. testimony determines that the victim’s Motions For After Continuance be if materially would affected victim Begun Trial Has testimony hears other at trial. purpose “prevent behind Rule 613 to error, appel his twelfth testimony of influencing one witness from in judge denying lant contends the trial erred testimony of another.” v. Cook 30 his oral motion for a continuance.20 After 607,18 (1892). Tex.App. See, S.W. Webb testified, Quijano and the rested its State (Tex.Cr.App. S.W.2d case, appellant requested a con 1989). Appellate review of a violation of the expert tinuance locate an to rebut witness is limited judge rule to whether the trial Qujjano’s testimony. Appellant informed the abused his discretion. Guerra judge expert trial he had located an who had (Tex.Cr.App.1988). 475-476 testify. judge offered to declined The trial morning trial until recess the the next In Lewis v. 486 S.W.2d appellant opportunity allow an to locate a (Tex.Cr.App.1972), we held: Appellant agreed. witness. next morn The trial court is vested discretion (cid:127) ing appellant judge he informed the trial had may permit expert witnesses to be expert again contacted same who de exempt they from the rule in order that testify. clined to Counsel also informed the may testify hear other and then witnesses attempt of an unsuccessful opinion testimony. base their on such expert. contact another also, See Carlile v. speaks Tex.Code Crim.Proc.Ann. art. 29.13 begun. Art. to continuances after trial has Quijano expert opinion was to provides: 29.13 whether would constitute continu- Therefore, ing society. threat we cannot may postponement A continuance or say that trial judge his discretion abused granted on the motion State or allowing Quijano testimony observe begun, when defendant after trial has appellant’s brother and sister. Point of appear it is made to to the satisfaction of error eleven is overruled. occur- unexpected the court that some began, no rea- rence since the trial which of error thirteen diligence anticipated, could sonable allowing contends the trial erred that a applicant by surprise is so taken Quijano testify concerning pun second fair trial cannot be had. Quijano incapable ishment issue because drawing points a distinction error nine previously between deliberate As noted premeditated. ten, appellant further con was well aware Quijano sufficiently expert potential calling tends did not have de wit- State testify punishment phase him tailed information as to allow to make ness to at the 19. Point of error thirteen of error twelve states: 20. Point states: overruling judge incorrectly psychol- appel- The trial allowed
ogist testify requested opinion about the rebuttal to his future lant’s continuance to secure dangerousness special psychological expert testimony. issue. *11 Dallas, Fishburn, appellant. Therefore, for Quijano’s trial. we find testi- Allan mony “unexpected was not an occurrence Vance, Atty., and Pamela Sulli- Dist. John began, which no reasonable since Dallas, Berdanier, Atty., Rob- Asst. Dist. van diligence anticipated” appel- could have Huttash, Atty., and Matthew W. ert State’s by surprise fair lant was not “so taken that a Austin, Paul, Atty., for State. Asst. State’s Accordingly, had.” [could] not be hold the trial did not abuse his discre- denying appellant’s in motion for
tion oral PETITIONS FOR ON STATE’S OPINION continuance. Point of error twelve is over- REVIEW DISCRETIONARY ruled. MALONEY, Judge. judgment of the trial court is affirmed. for murder and Appellant was indicted IV., part. II., III., Only parts Publish in of the lesser included convicted VIII., V., VI., IX., designated negligent criminally homicide. offense of opinion publication. The remainder of the punishment at confine assessed published. not be shall Rabbani v. year. Thereafter the State ment for one (Tex.Cr.App.1992). robbery. aggravated Appellant for indicted pre-trial application writ Appellant filed CLINTON, dissents, J., particularly to dis- contending corpus, prosecu that a of habeas position explicated 21 for reasons robbery aggravated was barred tion for Rios v. at 316-317 jeopardy due to double clause prosecution. The trial court denied murder OVERSTREET, J., concurs in the result Appeals reversed relief and Court only. holding opinion rehearing, its Grady prosecution second was barred under J., MALONEY, concurs in the result Corbin, S.Ct. U.S. III., part dealing reached (1990). parte Lowery, Ex L.Ed.2d 548 three, joins opinion. and otherwise 1992).1 (Tex.App. S.W.2d 550 — Dallas granted County the Dallas Dis- We both Prosecuting Attorney’s the State trict Attorney’s petitions to determine whether Appeals interpreta- in its the Court of However, Grady tion of v. Corbin.2 Supreme has since over- Court United States - Dixon, Grady in States v. ruled United Douglas Ex Parte Allen LOWERY. U.S.-, 2849, 125 113 S.Ct. L.Ed.2d (1993). No. 1251-92. Appeals did the Court of Since Texas, Appeals Court of Criminal handed of that decision when it the benefit En Banc. ease, judg- opinion its in the instant its down is reversed and the cause remanded ment Dec. light of Dix- that court for reconsideration on. specific Appeals in the originally Court be- contentions raised 1. The affirmed some bring complete pre- cause faded to forth a petitions. did not its withdraw appeal. record on opinion the same and reached conclusion vious applying the same rationale. Tex.R.App.P.101, Ap-
2. Pursuant the Court opinion, addressing peals supplemental issued a