dissenting on Motions for Rehearing.
My views concerning an executive commutation of a death sentence after that penalty has been judicially vacated constituting an impermissible violation of the constitutional doctrine of separation of powers are expressed in Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981) and Rodriguez v. State, 626 S.W.2d 35 (Tex.Cr.App.1981), and will not be reiterated here, though they are the backdrop against which I now state the reasons I do not join in the judgment of the Court.
Briefs before the Court in, e.g., Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974) and State ex rel Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973), will reflect my professional aversion to the notion of the meaning of the term “after conviction” in Article IV, § 11 of the Constitution of the State of Texas so ponderously justified in the opinion on rehearing in Snodgrass v. State, 67 Tex.Cr.R. 615, 150 S.W. 162 (1912), and so casually restated in Goss v. State, 107 Tex.Cr.R. 659, 298 S.W. 585 (1927)—in the latter, I am constrained to note, without the slightest attribution to the former.1 But I need not discuss all the internal inconsistencies in the Snodgrass opinion which flaw its conclusion that in Texas “conviction” is “the verdict of guilty” found by a jury2 for it begat Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972) on which the Court continues to rely.
However, the situation we confront here is that the judgment of the trial court assessing the death penalty had been reversed *707by this Court before the Governor issued a proclamation purporting to commute a nonexistent “sentence” to life imprisonment.3 Thus, as I demonstrated with constitutional and statutory law in Adams v. State, supra, there was and still is nothing for the Governor to commute, and it is on that basis that I find the purported commutation has no effect on the appellate proceedings in the Judicial Department.4
To some degree the majority seem willing to ward off attempted intervention by the Executive Department in Judicial Department business — at least long enough to examine the guilt-innocence stage of a trial for reversible error. What the majority does today means to me that an appellant may resist the gratuitous act of clemency and insist that the Court consider his grounds of error attacking validity of his conviction for the offense of capital murder and, notwithstanding a purported commutation of “sentence,” this Court will proceed to review those grounds of error to the end that should reversible error be found a new trial will be granted and the cause remanded — with the death penalty, I presume, still viable punishment.5 However perplexing it may be that the commutation order preempted further judicial proceedings in Adams, but in this cause is “suspended” pending judicial decision, I applaud the Court in retaking a bit of its jurisdiction, power and authority in capital cases.
*708Still, I dissent to the judgment of the Court.
ONION, P. J., and TEAGUE, J., join.. Goss v. State, supra, cites for its only Texas authority Duke v. State, 106 Tex.Cr.R. 154, 291 S.W. 539 (1927), which likewise ignores Snodgrass. See also the companion case, Snodgrass v. State, 67 Tex.Cr.R. 648, 150 S.W. 178 (1912); the opinion for the Court was written by another judge who finds the first suspended sentence law unconstitutional on somewhat different rationale and for other reasons.
Moreover, in both Duke and Goss the statement of the notion is dicta, for in each pardon and commutation, respectively, came after entry of judgment by the trial court and while the case was on appeal — indeed, in Duke judgment of affirmance had been entered. On account of executive clemency each appeal was dismissed by the Court. The ruling of this Court today must mean that no longer is either Duke or Goss viable authority or that each is limited by its own facts to the theory that acceptance of executive clemency by an appellant moots his appeal.
. Pausing only to observe that the Snodgrass court first painstakingly demonstrates fundamental departures from the common law were taken by constitutional and statutory provisions adopted by the several jurisdictions in this country and in Texas, id., 150 S.W. at 170-171, but then insists that they retained the common law concept of “after conviction” in the same provisions, id., 150 S.W. at 172-174, I point out that the very statute the Court said gave the term its common law meaning, former Article 688 in the 1857 Code of Criminal Procedure, then Article 861 of the 1911 code and now part of Article 42.07, V.A.C.C.P., Reasons to prevent sentence, presupposes that a judgment has been entered. Article 42.02, V.A.C. C.P.; Thornton v. State, 576 S.W.2d 407, 408 (Tex.Cr.App.1979). (All emphasis is mine unless otherwise indicated.)
. Notwithstanding the awkward terminology of Article 37.071(f), V.A.C.C.P. — “The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals...” Article 42.04, V.A.C. C.P. controls, so that when appeal is taken from a death penalty the sentence of death “shall not be pronounced, but shall be suspended until the decision of the Court of Criminal Appeals has been received.” Hughes v. State, 562 S.W.2d 857, 859 (Tex.Cr.App.1978); Hovila v. State, 532 S.W.2d 293, 297 (Tex.Cr.App.1976).
. On remand from the Supreme Court of the United States the Court affirmed the judgment of conviction in Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981) on the solitary basis of Whan v. State, supra, and, in rejecting my dissenting views, propounded a theory that in light of the “sequence of events” the purported commutation “granted” Adams “reached the punishment before the judicial sequence did, and it is the judiciary, not the executive branch, that is left with no death penalty upon which to exercise its power,” Adams, supra, at 569. As we now see though, even that theory — essentially approving a footrace between the Judicial Department and the Executive Department to reach “the punishment” first — is abandoned by the majority. It concedes to the loser of the race.
On original submission a unanimous Court concluded:
“The recent holding of the United States Supreme Court in Estelle v. Smith, supra, dictates that the admission of Dr. Coon’s testimony at the punishment stage of the trial constituted violations of appellant’s rights... and requires that the judgment be reversed and remanded.”
The inevitable consequence of our reversal for that “trial error” and remand for a new trial is that the death penalty remained in the case as a possible punishment.
The opinion on original submission was delivered September 23, 1981; the commutation order is dated November 9, 1981, and thus purports to commute what was by then a nonexistent judgment assessing punishment at death. As in Rodríguez v. State, 626 S.W.2d 35 (Tex.Cr.App.1981), once again interruption by the Executive Department of “the judicial sequence” has eliminated possible imposition of capital murder.
.Implicit in the refusal of the Court to reform the “sentence” (but see note 3, supra) to life— “This we need not do ... [because] the Governor issued a proclamation which commuted this sentence to life imprisonment.” — but nevertheless to proceed to go behind the verdict of guilt to examine the record for trial error is that should reversible error dictate that judgment of conviction based on the verdict of guilt be set aside, the assessment of punishment portion of the same judgment would also fall. Surely, the Court will not permit a purported commutation to fix a ceiling on available punishment if another verdict of guilt be returned after a new trial. My formulation may be wrong, however, since both Snodgrass and Whan and their progeny hold that clemency effectively attaches any time after a verdict of guilt, Whan opining that “imposition of the death penalty is no longer possible by virtue of the commutation” which, the Whan Court said, “merely mitigates the punishment which can be given.” Id., at 277. Perhaps the answer is that Whan is limited to the situation where judgment of conviction must be affirmed because no trial error, e.g., Cherry v. State, 488 S.W.2d 744, 758 (Tex.Cr.App.1972); if so, then the Snodgrass definition is irrelevant.