Ex parte Smith

If, as the majority states, the controlling question presented is whether Washington v. Texas, 385 U.S. 812, 87 S.Ct. 123, 17 L.Ed.2d 54, has retroactive application, then I must dissent on the grounds set forth in my opinion, concurring in part and dissenting in part, in Ex parte Thomas, Tex.Cr. App., 429 S.W.2d 151, where I concluded that Washington must be given retroactive application. My conclusion has since been fortified by the decisions of the United States Supreme Court, among others, in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, footnote 22; McConnell v.…