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Saldano v. State

The state's confession of error in the U.S. Supreme Court is contrary to Texas procedural law for presenting a claim on appeal, as well as the Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims.

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APPEAL FROM COLLIN COUNTY ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Womack, J., delivered the opinion of the Court, in Part I of which all Members of the Court joined, and in Part II of which Keller, P.J., and Meyers, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Price, and Johnson, JJ., dissent in Part II. Keller, P.J., filed a concurring opinion in which Keasler, Hervey, and Cochran, JJ., joined. Price, J., filed a dissenting opinion. Johnson, J., filed a concurring and dissenting opinion.

This case comes before us again on remand from the Supreme Court of the United States. After we affirmed his conviction on September 15, 1999, the appellant petitioned the Supreme Court for a writ of certiorari. The question for review was, “Whether a defendant’s race or ethnic background may ever be used as an aggravating circumstance in the punishment phase of a capital murder trial in which the State seeks the death penalty.” *fn1 The Attorney General of Texas filed a response to the petition, in which he confessed that the prosecution’s introduction of race as a factor for determining “future dangerousness” constituted a violation of the appellant’s rights to equal protection and due process. *fn2 The Supreme Court granted the petition, summarily vacated our judgment, and remanded the case to us “for further consideration in light of the confession of error by the Solicitor General of Texas.” *fn3

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