Powell v. State , 1987 Tex. Crim. App. LEXIS 632 ( 1987 )

TEAGUE, Judge,

dissenting and concurring.

I join the dissenting opinion that Presiding Judge Onion has filed in this cause because he has stated therein what I believe is the law today in this State on the Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), issue that is before this Court to be resolved. Notwithstanding my agreement with Presiding Judge Onion’s dissenting opinion, but because I believe that what Judge McCormick has stated and held in the majority opinion that he writes for the Court will soon be, in principle at least, the law of the federal constitutional land, on the Estelle v. Smith, supra, issue, I am constrained to agree with what he has stated and held. Therefore, I dissent and concur.

A majority of this Court, at least since I have been a member of this Court, though often given the opportunity to decide a given issue on independent state grounds, and not on Federal Constitutional grounds, has always chosen to be lured by the siren that is sounded on the banks of the Potomac, and thereafter, in lock-step fashion, has always uniformaly marched to whatever tune the drummer that is located in the Supreme Court Building, Washington, D.C., plays.

Given the above fact of life, I would further delay handing down the majority opinion in this cause until the Supreme Court of the United States finally decides Satterwhite v. Texas, — U.S. -, 107 S.Ct. 2480, 96 L.Ed.2d 372 (1987).

The Supreme Court of the United States, notwithstanding the fact that a majority of this Court, in affirming the judgment of conviction in Satterwhite v. State, 726 S.W.2d 81 (Tex.Cr.App.1986), only gave the defendant little more than the time of the day in its opinion on the Estelle v. Smith, supra, issue, has granted certiorari to review what this Court stated and held in Satter-white v. State, supra, concerning Estelle v. Smith, supra.

I cannot, of course, predict exactly what the Supreme Court will state and hold in Satterwhite v. Texas, supra. However, given what that Court’s aggressive and assertive majority has done in the field of criminal law to defendants since the “Burger Court” came into existence, and its make-up since that day has not changed, and even though I am no Jimmy the Greek, I believe that I can predict what it will generally do on that issue. It will, in principle at least, state little more than what Judge McCormick has already stated and held, although it could in the extreme expressly overrule its decision of Estelle v. Smith, supra, because that opinion was sensitive to the rights of the accused and insensitive to state abuses, and the present aggressive and assertive majority of the Supreme Court does not appear to like to hand down decisions that are insensitive to government or state abuses in the field of criminal law.

Thus, because the majority of this Court votes to hand down today the majority opinion by Judge McCormick, and because I firmly believe that what Judge McCormick has stated and held in principle is what the Supreme Court of the United States will ultimately state and hold on the Estelle v. Smith, supra, issue, in Satterwhite v. Texas, supra, and because a majority of this Court has long opted to follow what the Supreme Court stated and held in Estelle v. Smith, supra, I am constrained to agree with what he has stated and held.