See Grider v. State, 468 S.W.2d 393 (Tex.Cr.App. 1971). A partial list includes: Whan v. State, Tex.Cr.App., 438 S.W.2d 918 (1969) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971); Harris v. State, Tex.Cr.App., 457 S.W.2d 903 (1970) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971); Turner v. State, Tex.Cr.App., 462 S.W.2d 9 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (1971); Quintana v. State, Tex.Cr.App., 441 S.W.2d 191 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Mathis v. State, 283 Ala. 308, 216 So.2d 286 (1968) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2278, 29 L.Ed.2d 855 (1971); State v. Pruett, 18 Ohio St.2d 167, 248 N.E.2d 605 (1969) reversed as to death penalty 403 U.S. 946, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969) reversed as to death penalty 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Ladetto v. Commonwealth, 356 Mass. 541, 254 N.E.2d 415 (1969) reversed as to death penalty 403 U.S. 94
On appeal, this Court affirmed the conviction on February 26, 1969. Whan v. State, 438 S.W.2d 918 (Tex.Cr.App. 1969). The United States Supreme Court granted appellant's petition for certiorari, and on June 28, 1971, ordered that "The judgment of the Court of Criminal Appeals of Texas, insofar as it imposes the death sentence, be reversed, and that this cause be remanded to the Court of Criminal Appeals of Texas for further proceedings."
At this point the court retired the jury and noted the inconsistency and discussed the advisability of withdrawing the plea of guilty. Counsel for appellant insisted on the plea of guilty and appellant agreed. Counsel correctly pointed out that intoxication was not a defense, Article 36, V.A.P.C., (Although the matter is not raised on appeal, it should be noted that no change in the plea was required, see Whan v. State, Tex.Cr.App., 438 S.W.2d 918, and Kelly v. State, 124 Tex.Crim. 579, 63 S.W.2d 1024), and he stated that appellant was saying he did not remember having an intent, but accepted the fact he had the intent based upon the testimony that had been introduced. Appellant agreed to this statement and so testified before the jury.
Counsel's failure to object to similar testimony later in the trial had the same effect for purposes of subsequent review as would a failure to object to this testimony, and was just as serious. The cases cited as involving testimony less prejudicial than that in the present case were: Chism v. State, 470 S.W.2d 673 (Tex.Cr.App. 1971) (not reversible error to admit testimony of deceased's peaceable character where opposite has been testified to on behalf of defense, and no timely objection made); Whan v. State, 438 S.W.2d 918 (Tex.Cr.App. 1969) rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971) (not reversible error to allow crippled wife of deceased to testify without first allowing defense counsel to perfect a bill of exception); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App. 1965) (admission of testimony that deceased was the father of eight children not reversible error where objection not timely made); Cadenhead v. State, 369 S.W.2d 44 (Tex.Cr.App. 1963) (reversible error to admit testimony by mother of deceased that he was sole support of her and her husband); Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957) (admission of testimony by deceased's widow as to number and ages of her children not reversible error because same facts proved by evidence not objected to); Cavarrubio v. State, 160 Tex.Cr.R. 40, 267 S.W.2d 417 (1954) (admission of testimony that deceased had a wife and two small children insufficiently prejudicial in light of other evidence to constitute reversible error); Eckels
We note that the United States Supreme Court has summarily reversed several state decisions, including a decision of this Court, that held error under Witherspoon was harmless or waived. Whan v. Texas, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971), rev'g Whan v. State, 438 S.W.2d 918 (Tex.Cr.App. 1969); Speck v. Illinois, 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971), rev'g People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208 (1968); Wigglesworth v. Ohio, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971), rev'g State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); Bernette v. Illinois, 403 U.S. 947, 91 S.Ct. 2290, 29 L.Ed.2d 858 and Tajra v. Illinois, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 858 (1971), rev'g People v. Bernette, 45 Ill.2d 227, 258 N.E.2d 793 (1970); Funicello v. New Jersey, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), rev'g State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968); Childs v. North Carolina, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971), rev'g State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967). Of these cases, Whan, Speck, Wigglesworth, and Bernette relied in whole or in part on the argument that Witherspoon error was harmless because the state failed to exhaust its peremptory challenges.
Even if the defendant is correct in asserting that the fact of unexhausted peremptories will not cure a Witherspoon violation, reversal of the conviction is not required. In each of the cases cited by the defendant in which the Supreme Court reviewed cases with Witherspoon errors (Speck v. Illinois, 41 Ill.2d 177, 242 N.E.2d 208 (1968), rev'd 403 U.S. 946, 91 S.Ct. 2279, 29 L.Ed.2d 855 (1971); Bernette v. Illinois and Tajra v. Illinois, 45 Ill.2d 227, 258 N.E.2d 793 (1970), rev'd 403 U.S. 947, 91 S.Ct. 2290, 2291, 29 L.Ed.2d 858 (1971); Mathis v. New Jersey, 52 N.J. 238, 245 A.2d 20 (1968), rev'd 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed.2d 855 (1971); Wigglesworth v. Ohio, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969), rev'd 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (1971); Whan v. Texas, 438 S.W.2d 918 (Tex.Cr.App. 1969), rev'd, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (1971), only the sentence was overturned and the cases were remanded for resentencing. Witherspoon made clear that the remedy for wrongful excusal was the prohibition of the imposition of the death sentence and not reversal of the conviction. See State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).
This Court has consistently held evidence of this type to be inadmissible. Faulkner v. State, 43 Tex.Cr.R. 311, 65 S.W. 1093 (1901); Allen v. State, 102 Tex.Cr.R. 441, 278 S.W. 201 (1925); Goolsby v. State, 112 Tex.Cr.R. 216, 15 S.W.2d 1052 (1929); Ainsworth v. State, 122 Tex.Cr.R. 483, 56 S.W.2d 457 (1933); Elizondo v. State, 130 Tex.Cr.R. 393, 94 S.W.2d 457 (1936); Eckels v. State, 153 Tex.Cr.R. 402, 220 S.W.2d 175 (1949); Cavarrubio v. State, 160 Tex.Cr.R. 40, 267 S.W.2d 417 (1954); Orozco v. State, 164 Tex.Cr.R. 630, 301 S.W.2d 634 (1957); Cadenhead v. State, 369 S.W.2d 44 (Tex.Cr.App.1963); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965); Whan v. State, 438 S.W.2d 918 (Tex.Cr.App.1969); Chism v. State, 470 S.W.2d 673 (Tex.Cr.App.1971). We note in passing that Martin's complete testimony relates to his personal knowledge of the deceased's reputation.
". . . The State's right to introduce evidence is not restricted by entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved. Brookens v. State, Tex.Cr.App., 438 S.W.2d 577; Whan v. State, Tex.Cr.App., 438 S.W.2d 918, 56 Tex.Jur.2d, Trial, Sec. 130; Beard v. State, 146 Tex.Crim. R., 171 S.W.2d 869. There is no limit, either by statutory direction or judicial interpretation, upon the kind, character or amount of relevant testimony which the State may introduce upon a plea of guilty. Whan v. State, supra; Brooker v. State, 124 Tex.Crim. R., 63 S.W.2d 1033. ' See Beard v. State, 146 Tex.Crim. R., 171 S.W.2d 869 (1943), to the same effect.
In Whan v. State, supra, this Court noted that the term After conviction, as used in Art. IV, Sec. 11, of the Texas Constitution, Vernon's Ann.St. and Art. 48.01, V.A.C.C.P., providing that the Governor shall have powers, After conviction, to grant commutations, has been construed to mean after verdict of guilty. Antwine v. State, 578 S.W.2d 486 (October 18, 1972), following Whan v. State, supra, is contrary to appellant's contention that the Governor is without authority to commute the punishment before sentence is pronounced. Whan v. State, Tex.Cr.App., 438 S.W.2d 918. Snodgrass v. State, 67 Tex.Crim. R., 150 S.W. 162; Goss v. State, 107 Tex.Crim. R., 298 S.W. 585.
In the event of a re-trial, the court's attention is directed to our recent decision in Grider v. State, 468 S.W.2d 393 (Tex.Cr.App. 1971), and the five Texas cases in which the death penalty was set aside and the cause remanded to this court for further consideration in light of Witherspoon and the decisions in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221. See Turner v. Texas, 403 U.S. 947, 91 S.Ct. 2289, 29 L.Ed.2d 858 (Tex.Cr.App., 462 S.W.2d 9); Quintana v. Texas, 403 U.S. 947, 91 S.Ct. 2284, 29 L.Ed.2d 857 (Tex.Cr.App., 441 S.W.2d 191); Whan v. Texas, 403 U.S. 946, 91 S.Ct. 2281, 29 L.Ed.2d 856 (Tex.Cr.App., 438 S.W.2d 918); Harris v. Texas, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (Tex.Cr.App., 457 S.W.2d 903); Crain v. Beto, 403 U.S. 947, 91 S.Ct. 2286, 29 L.Ed.2d 857. For the reason stated, the judgment is reversed and the cause remanded.