Wilder v. State

623 S.W.2d 650 (1981)

John Lewis WILDER and Artie Armour, Appellant, v. The STATE of Texas, Appellee.

No. 57848.

Court of Criminal Appeals of Texas, En Banc.

November 18, 1981.

Jerry L. Davis, New Boston, for Wilder.

James E. Davis, Texarkana, Ark., for Armour.

Lynn Cooksey, Dist. Atty. and Donald W. Dowd, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

DALLY, Judge.

The appellants were convicted of the offense of capital murder and punishment of death was assessed. This Court affirmed the convictions in Wilder and Armour v. State, 583 S.W.2d 349 (Tex.Cr.App.1979). The United States Supreme Court granted the appellants' writ of certiorari and subsequently vacated the judgments and remanded the cases to this Court in light of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 69 L. Ed. 2d 359 (1981); Wilder v. Texas, ___ U.S. ___, 101 S. Ct. 3133, 69 L. Ed. 2d 987 (1981); Armour v. Texas, ___ U.S. ___, 101 S. Ct. 3133, 69 L. Ed. 2d 987 (1981). In Estelle v. Smith, supra, the death penalty of the defendant was vacated because of error occurring during the punishment phase of the trial. The error in these cases was at the punishment phase of the trial.

Subsequent to the Supreme Court's remand in these cases the Governor of the State of Texas commuted the punishment of each appellant to life imprisonment. Since the imposition of the death penalty is *651 no longer possible, and there is no error in the guilt-innocence phase of the trial, the judgments will be affirmed. Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981); Whan v. State, 485 S.W.2d 275 (Tex. Cr.App.1972).

The judgments are affirmed.

ONION, P. J., and CLINTON, J., dissent.