(dissenting).
The majority have ordered this needless reversal on inadequate reasoning. They have misinterpreted Article 37.071, Y.A.C. C.P., and have incorrectly determined the applicability of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
Witherspoon, supra, says:
“Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”
The procedure set out in Article 37.071, supra, is mechanical, and provides for a mandatory death penalty upon an affirmative answer to each of the special fact issues submitted under Section (b). The jury neither imposes nor recommends imposition of the death penalty under this statute. In fact, under the provisions of Article 1257, V.A.P.C. (under which appellant was convicted), each juror must state under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact. The majority ignore both the mandatory character of this statute and the oath required of each juror. I must dissent to their reliance upon a presumption of jury misconduct.
I also dissent to the majority’s reversal of this conviction because the reasoning followed in their opinion is in conflict with that followed in their disposition of Jurek v. State, 522 S.W.2d 934 (1975). In Jurek the majority found that Article 37.071, supra, provides for a limitation on “the standard-less imposition of the death penalty,” by “channeling] the jury’s consideration on punishment,” and “directing] and guid[ing] their deliberations.” These controls, said the majority, saved this statute from the faults condemned in Furman v. Georgia and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 32 L.Ed.2d 346. Now, say the majority, “the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury’s answers would not be affected by their attitude toward the death penalty . would be to disregard the obvious.” After their finding that the controls of Article 37.071 save the scheme from unconstitutionality, they now find it obvious that the controls will be ignored. If the majority insist on being wrong, they should at least strive to be wrong with consistency, and avoid being wrong in a different way each day.
Finally, I must dissent for the reasons stated in my opinion concurring in part and dissenting in part in Jurek v. State, supra. In that opinion I pointed out the defects in Article 37.071, supra, which render it unconstitutional. Under the reasoning therein the judgment herein should likewise be reformed to provide for life imprisonment. The Witherspoon issue upon which the majority stand so ready to reverse would then be moot (Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900, 910) and the judgment would be affirmed.
For all the reasons stated I dissent to the needless reversal of this case.
STATE’S MOTION FOR REHEARING