concurring.
For the reasons that I stated in the dissenting opinion that I filed in Hicks v. State, 664 S.W.2d 329, 332 (Tex.Cr.App.1984), I only concur. Also see Ex parte McKinney, 668 S.W.2d 559 (Tex.Cr.App.1985).
It is amazing, but what I stated in the dissenting opinion that I filed in Hicks v. State, supra, comes true in this cause. There, I stated the following: “I find from what is stated in the majority opinion that the majority, in order to reach its result, evaluates, analyzes, and discusses the issue from hindsight, i.e., by first looking to the verdict of the jury to see what offense the jury found that appellant had committed, it is able to conclude that he was not harmed by the State abandoning at the commencement of the voir dire the death penalty. However, what the majority has conveniently overlooked is what the Legislature of this State mandated when it enacted Articles 1.13 and 1.14, V.A.C.C.P.” And, is that not exactly what the majority is doing in this cause, albeit a different result from that attained in Hicks, supra, occurs in this cause?
Hicks, supra, should be either expressly overruled or it should be literally followed. I would vote to expressly overrule it. The majority declines to take that step. However, it puts a big dent into Hicks, supra, and, by doing so, reaches the right result.
Therefore, I concur in the result the majority opinion reaches.