# Powell v. State

> Court of Criminal Appeals of Texas · December 7, 1994 · 897 S.W.2d 307

URL: https://www.frixlaw.com/law-library/cases/9772619

## Case

- **Full name:** David Lee POWELL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 7, 1994
- **Citations:** 897 S.W.2d 307; 1994 Tex. Crim. App. LEXIS 128; 1994 WL 679954
- **Precedential status:** Published
- **Opinion:** Concurrence by Maloney
- **Judges:** Meyers, Clinton, Maloney, McCormick, Miller, White, Campbell
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Prystash v. State, 1999 Tex. Crim. App. LEXIS 97 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772619

## How later opinions describe it (automated extraction)

- holding "deliberateness” issue could not be waived, even affirmatively, by defendant
- discussing 1991 legislative changes to art. 37.071

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772619. Public record. Not legal advice.