Opinion
No. 45448.
May 3, 1972.
Appeal from Jerome Chamberlain, J., of the Criminal District Court of Dallas County.
Robert B. Maloney, Sam Vilches, Jr., Dallas, for appellant.
Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
OPINION
The offense is murder; the punishment, death.
Our original opinion affirming this death penalty conviction is reported as Martin v. State, 401 S.W.2d 831.
Since the rendition of our original opinion, a habeas corpus hearing has been held in the Criminal District Court of Dallas County and the Honorable Jerome Chamberlain, Judge of said Court, has certified to this Court his findings of fact and conclusions of law together with the record of such hearing. He concludes that forty-four (44) of the prospective jurors 'were excused for cause merely because they expressed that they had conscientious or religious scruples against voting the death penalty.' Judge Chamberlain concludes that the writ should be granted.
We have examined the voir dire of the prospective jurors and find that at least 44 prospective jurors were improperly excluded under the holding of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and under the holding of this Court in Grider v. State, 468 S.W.2d 393.
Since Witherspoon v. Illinois, supra, is retroactive, see footnote 22 of such opinion, and under the holding of this Court in Grider v. State, supra, the writ of habeas corpus must be granted.
The original judgment of conviction is reversed and the cause is remanded. Accordingly, petitioner is ordered released from confinement by the Department of Corrections and ordered delivered to the Sheriff of Dallas County, Texas, there to stand charge on the indictment in Cause No. E — 6308 — IH there pending against him.
It is so ordered.