holding "deliberateness” issue could not be waived, even affirmatively, by defendant
How later courts described this case
- holding "deliberateness” issue could not be waived, even affirmatively, by defendant
- Clinton, J., concurringXholding "deliberateness" issue could not be waived, even affirmatively, by defendant
- in dicta, commenting unfavorably on atmosphere created by the single file entry into the court room of about eighty-five uniformed with mourning ribbons taped over their badges, all orchestrated by the State’s attorney
- discussing 1991 legislative changes to art. 37.071
Written by the judges who cited it.
Later courts went against this
Overruled by Prystash v. State, 1999 Tex. Crim. App. LEXIS 97 (1999)
897 S.W.2d 307 (Tex. Crim. App. 1994), overruled by Prystash, 3 S.W.3d 522
The opinion
MALONEY, Judge,
concurring.
I join the opinion of the Court with the following note.
The law at the time of the offense required that before a court could assess the death penalty a jury and only a jury must have submitted to it for its answer an issue requiring them to find that the conduct was “delib *319 erate.” This is statutorily required. Tex. Code Crim.Proc.Ann. art. 37.071(b)(1).
The law prohibits a defendant from waiving trial by jury in a capital case where the State is seeking the death penalty. This too is statutory. Tex.Code Crim.Proc.Ann. art. 1.14(a).
For us to hold otherwise would require us to act as legislators rather than judges.