dissenting.
The Supreme Court of the United States has entered an Order that pertains to this cause, namely, “this cause is remanded to the Court of Criminal Appeals of Texas for further consideration in light of Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).” What does this Order mean?
It appears to me and Joe Vargo of the Austin American-Statesmen, if no one else, that the Supreme Court’s Order must be read literally, and, if read literally, it is obvious to me and Vargo, if no one else, that, as Vargo put it, the Supreme Court of the United States ruled that “In vacating Powell’s [the appellant’s] sentence, the Supreme Court said the trial court erred during the punishment phase of the trial by allowing testimony from a psychiatrist [sic].”
I find that the Supreme Court of the United States disagrees not only with what this Court stated and held when this cause was previously before this Court regarding the Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), issue, i.e., it disagrees with what this Court’s previous majority opinion stated and held regarding the admission of the opinion testimony of Drs. Coons and Parker on the issue of appellant’s future dangerousness at the punishment stage of appellant’s trial, but also disagrees with this Court’s previous majority opinion’s holding that any error in admitting such testimony was harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
When this cause was previously before this Court I agreed with what Presiding Judge Onion, now retired, stated in the dissenting opinion that he filed in this cause, but honestly believed that the Supreme Court of the United States, if given the opportunity, would adopt in principle what the majority opinion of this Court by Judge Me Cormick, now Presiding Judge Me Cormick, stated and held. Thus, I went out on the limb and made a prediction, which has now been proved wrong, and therefore must acknowledge that I should not ever predict in print what a majority of the present Supreme Court of the United States might state and hold in a given capital murder case.
My oath of office requires that when it comes to decisions of the Supreme Court of the United States, that concern federal constitutional law, I must acknowledge that that Court’s decisions are the Supreme Law of the Land. See Article VI, Federal Constitution. Also see Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Of course, if a state court judgment is based upon an independent and adequate state ground, the Supreme Court of the United States has no jurisdiction to decide the case so long as the state court’s decision does not fall below the federal ceiling imposed on the States through the Fourteenth Amendment. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Also see Collins, Plain Statements: The Supreme Court’s New Requirement, 70 A.B.A.J. 92 (1983).
Therefore, I respectfully dissent to the majority of this Court’s refusal to adopt Presiding Judge Onion’s well reasoned and well written dissenting opinion on original submission as “The Opinion of the Court of Criminal Appeals on Remand from the Supreme Court of the United States” and also respectfully dissent to this Court’s majority opinion’s feeble efforts to delay doing what its federal constitutional law duty requires that this Court must do.