holding, based upon prior arrests and incarcerations, the accused was familiar with his Sixth -5- 09-00349-CR Amendment rights, and specifically waived his right to counsel
How later courts described this case
- holding, based upon prior arrests and incarcerations, the accused was familiar with his Sixth -5- 09-00349-CR Amendment rights, and specifically waived his right to counsel
- holding that defendant has no standing to complain of an illegal search of another’s residence
- remanding to give defendant opportunity to show harm under new theory applied, by appellate court, from case law decided after trial in this case
- differing procedures of jury voir dire in capital and non-capital cases does not violate federal equal protection
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
Appeal is taken from a conviction for capital murder. After finding appellant guilty, the jury returned affirmative answers to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death. On original submission, this Court affirmed appellant’s conviction. See page 813.
In his first ground for rehearing, appellant challenges the manner in which this Court disposed of his first point of error. There, appellant maintained he was deprived of adequate notice by the State’s failure to include the name of the person providing the remuneration in the indictment. This Court found appellant had been denied a requisite item of notice within the indictment. However, under the test set forth in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), no reversible error was present. Specifically, it was held:
It appears that the indictment’s failure to name the party who remunerated or promised remuneration to the appellant in no way figured into the appellant’s defense at trial. Appellant’s only position at guilt-innocence was that his confessions were improperly admitted into evidence and that, absent the confessions, the evidence against him was generally insufficient. The issue of the indictment’s failure to name the remunerating party was not raised in a motion for new trial. As the record stands, appellant’s ability to prepare a defense was not affected by the trial court’s admittedly improper refusal to grant his motion to quash. Since the record, when viewed in the context of the case, fails to show that the deficiencies in the indictment *842 had any clear impact, the second requirement of the Adams test is not met. at 821.
In his motion for rehearing, appellant points out Adams v. State, supra, was decided after the instant cause was tried. Under such circumstances, appellant urges this Court should remand the cause to the trial court to give appellant an opportunity to demonstrate harm under the Adams v. State, supra, analysis. We agree.
Appellant’s motion for rehearing is granted on ground for rehearing No. 1 but only insofar as appellant shall be given an opportunity to demonstrate harm as a result of the trial court’s error in overruling the motion to quash. The trial court shall hold a hearing to allow appellant to more fully develop his allegation of harm. The record of such proceedings shall be forwarded to this Court within 120 days of the date of this opinion. Appellant’s remaining grounds for rehearing are denied.
The appeal is abated and the cause is remanded to the trial court for further proceedings consistent with this opinion.
CLINTON, J., would grant ground for rehearing No. 2.
TEAGUE, J., without qualification or limitation votes to grant in all things appellant’s motion for rehearing, but does not object to what the majority orders.