dissenting.
I dissent to the reversal of the judgment of guilt, for the reasons stated in my opinion in Evans v. State, 614 S.W.2d 414 (Tex.Cr.App.1980).
I also take exception to the statement in the Court’s opinion that “a majority of this Court might well agree that Mr. Justice Rehnquist, in his dissenting opinion [in Adams v. Texas], states the proper view .... ” Justice Rehnquist's opinion was that Witherspoon need be followed no longer, because juries no longer have unguided discretion to impose the death penalty. A majority of this Court has never indicated any doubt that Witherspoon was anything other than alive and well in Texas. See Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), and the cases cited in Adams v. Texas, 448 U.S. 38, 47 n. 4, 100 S.Ct. *4142521, 2527 n. 4, 65 L.Ed.2d 581 (1980). Only recently Judge Clinton, like Justice Rehnquist, concluded that Witherspoon should not apply to Texas’ capital punishment scheme; like Justice Rehnquist’s, his reason was that the jurors no longer have the discretionary task of assessing punishment in a capital case. Russell v. State, 598 S.W.2d 238, 255 (Tex.Cr.App.1980) (Clinton, J., dissenting). No other judge joined this opinion. Yet today we are told that “a majority of this Court might well agree” with that position.
The record of this Court is clear to me, and it cannot be changed now. This Court always has held that Witherspoon applied to our capital sentencing procedure, and that Section 12.31(b) was independent of it, and that Witherspoon was not violated by the excusing of a juror under Section 12.-31(b). There simply was no support for this Court’s long-held position in any of the opinions in Adams v. Texas.