noting that motive is not an element of a crime
How later courts described this case
- noting that motive is not an element of a crime
- On Motion for Rehearing overruled without written opinion on April 29, 1981, McCormick, J. dissent joined by Dally, J.
- On Motion for Rehearing overruled without written opinion on 4/29/81, McCormick, J. dissent joined by Dally, J.
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
But for two provocative observations made in a single sentence in the dissenting opinion I would not write in this cause. Since my dissent in Russell v. State, 598 S.W.2d 238, 255 (Tex.Cr.App.1980) was handed down with the majority opinion March 12, 1980, rehearing was denied April 23,1980 and the opinions were published in the advance sheet dated June 24, 1980, I leave to Mr. Justice Rehnquist the matter of whether his June 25, 1980 dissent in Adams v. Texas, 448 U.S. 38 , 100 S.Ct. 2521, 2529 , 65 L.Ed.2d 581 (1980) is “like” my dissent in Russell .
In Russell, supra at 257 I opined:
“Where the jury is not the assessor of punishment in a capital case but is charged with finding facts upon which the assessment is made, the Witherspoon holding 1 gives way to another doctrine for testing the qualification of veniremen that Witherspoon ... took express pains not to preclude. That is, as subsequently developed in Lockett v. Ohio, 438 U.S. 586, 596 , 98 S.Ct. 2954, 2960 , 57 L.Ed.2d 973 (1978):
‘Each of the excluded veniremen in this case made it “unmistakenly clear” that they could not be trusted to “abide by existing law” and “to follow conscientiously the instructions” of the trial judge. Boulden v. Holman, 394 U.S. 478, 484 , 89 S.Ct. 1138, 1142 , 22 L.Ed.2d 433 (1969)’.”
My conclusion in Russell — “that a good deal more manifestation than merely acknowledging ‘the magic phrase’ of § 12.-31(b) should be required for disqualification” — is, I submit, more “like” the conclusion of the Supreme Court in Adams v. Texas, supra.
Today the Court follows Adams and, of course, I concur in that.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.