Summary
holding that because the governor had commuted the death penalty sentence to life, the error was moot
Summary of this case from Jenkins v. StateOpinion
No. 57848.
November 18, 1981.
Appeal from the 5th Judicial District Court, Bowie County, Bun L. Hutchinson, J.
Jerry L. Davis, New Boston, for Wilder.
James E. Davis, Texarkana, Ark., for Armour.
Lynn Cooksey, Dist. Atty. and Donald W. Dowd, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
The appellants were convicted of the offense of capital murder and punishment of death was assessed. This Court affirmed the convictions in Wilder and Armour v. State, 583 S.W.2d 349 (Tex.Cr.App. 1979). The United States Supreme Court granted the appellants' writ of certiorari and subsequently vacated the judgments and remanded the cases to this Court in light of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 69 L.Ed.2d 359 (1981); Wilder v. Texas, ___ U.S. ___, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981); Armour v. Texas, ___ U.S. ___, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981). In Estelle v. Smith, supra, the death penalty of the defendant was vacated because of error occurring during the punishment phase of the trial. The error in these cases was at the punishment phase of the trial.
Subsequent to the Supreme Court's remand in these cases the Governor of the State of Texas commuted the punishment of each appellant to life imprisonment. Since the imposition of the death penalty is no longer possible, and there is no error in the guilt-innocence phase of the trial, the judgments will be affirmed. Adams v. State, 624 S.W.2d 568 (No. 60,037, delivered September 30, 1981); Whan v. State, 485 S.W.2d 275 (Tex.Cr.App. 1972).
The judgments are affirmed.
ONION, P. J., and CLINTON, J., dissent.