dissenting.
I agree with the majority’s assignments of burden in the punishment issue of release of a kidnapping victim alive and in a safe place. I agree, as well, that the court of appeals erred to hold unqualifiedly that appellant should have been punished as a second degree felon in this cause. I part ways with the majority here in its conclusion that failure to submit the issue of safe release to the jury, with instructions that it assess punishment in accordance with its resolution of that question, did not constitute fundamental error under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Moreover, because I disagree this error was harmless, I do not regard appellant’s petition for discretionary review to have been improvidently granted. I do believe, however, that his contention is ultimately without merit.
I.
The court of appeals found error in charging the jury that appellant should be punished as a first degree felon to be egregious, and hence fundamental under Al-*290manza. While I disagree that a properly charged jury could not rationally have found that the cemetery was not a safe place, I nevertheless conclude that failure to submit the issue to the jury was egregious error.* The court of appeals assigned the entire burden of proof to show the place of release was safe to the State, and held that it wholly failed to meet that burden. Though now we hold that the State assumes only the ultimate burden of persuasion, it seems likely to me that a jury would ultimately find the State fell short of meeting even that partial burden. On the record in this cause a properly instructed jury would likely have found as a matter of fact that appellant did release his victim in a safe place — or at least have harbored a reasonable doubt that he did not. The issue was not simply raised here. It likely would have been resolved in appellant’s favor! Thus, the harm here is “not just theoretical.” Almanza v. State, supra at 174. That counsel for appellant did not argue for a finding of safe release is not surprising, much less persuasive in the egregious harm analysis. For without a fact issue submitted in the punishment charge, there was nothing for him to argue.
The likely finding that the complainant was released alive and in a safe place would have mandated punishment within a range of “not more than 20 years or less than two years.” V.T.C.A. Penal Code, § 12.33. Instead, appellant was assessed a life sentence. That hardly sounds like a “minimal impact” to me. Op. at 289. Under the circumstances I cannot conclude he was afforded a fair and impartial punishment proceeding on his aggravated kidnapping conviction.
II.
I do not agree appellant did not suffer egregious harm in the failure to submit the issue of safe release in relationship to his punishment for aggravated kidnapping. Therefore I cannot agree that our decision to grant his petition for discretionary review was improvident. Ultimately, however, I believe his contention fails.
Appellant complains that the erroneous charge on aggravated kidnapping also deprived him of a fair and impartial consideration of punishment for aggravated sexual assault. He asserts that the wrong penalty range in the aggravated kidnapping charge which misguided the jury’s deliberation on that offense also misguided the jury’s deliberation on the aggravated sexual assault conviction. Emphasizing that the same jury assessed punishment in both prosecutions and heard the same evidence, the appellant contends that it is unreasonable to suppose that the error infected only one of the two prosecutions.
Appellant relies primarily upon Uribe v. State, 688 S.W.2d 534 (Tex.Cr.App.1985) in which the trial court submitted a penalty range which exceeded that authorized by law. Although the jury in Uribe assessed punishment within the lawful range, a unanimous Court reasoned that “[t]he court’s misdirection thus harms the defendant because the jury is instructed to consider his offense as more serious than the law grades it. Although the jury assessed punishment within the lawful range, an appellate court will not presume that the jury would have assessed the same punishment if the jury had been correctly instructed that the law holds the offense to deserve a lesser maximum punishment.” Uribe, supra at 538. This Court noted that the “range of punishment is society’s statement of the seriousness of the crime and necessarily influences the jury in its punishment decision.” Uribe, supra at 536, quoting Gonzales v. State, 672 S.W.2d 618 (Tex.App.—Amarillo 1984, no pet.).
Although Uribe is instructive, it is distinguishable from the present case. Uribe involved conviction for only one offense, for which the jury was instructed on an improperly high punishment range. In the present ease, the instruction authorizing *291punishment for the aggravated sexual assault conviction was correct.
Appellant essentially argues that the error committed in the instruction authorizing punishment for aggravated kidnapping as a first degree felony somehow spilled over to vitiate assessment of punishment for aggravated sexual assault as well. The court of appeals held that such harm was too “speculative,” and at any rate not sufficiently egregious to justify reversal of the aggravated sexual assault conviction, sans objection. Albeit before Almanza was decided, this Court has held similarly on a similar set of facts. Blott v. State, 588 S.W.2d 588, at 590 (Tex.Cr.App.1979).
In Blott the defendant was convicted in a single proceeding of three instances of injury to a child and one instance of aggravated assault. The jury charge at the conclusion of the guilt phase of trial authorized conviction should the jury find the defendant acted, inter alia, “with criminal negligence.” Because the indictment did not allege that particular mens rea, the Court recognized that the instructions on injury to a child reduced the State’s burden of proof and thus were fundamentally defective under Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). The defendant argued that the fundamental error adhering in the instructions on injury to a child also “tainted” the charge authorizing conviction for aggravated assault. This is particularly true, he asserted, in view of an apparent prosecutorial invitation to the jury to convict defendant of that offense as well upon a finding of no more than criminal negligence. Noting that the defendant had failed to object to the prosecutor’s argument, and that the instruction on aggravated assault properly required a finding that the defendant acted at least “recklessly,” as the indictment had alleged, we rejected Blott’s “taint” analysis.
Absent an objection to the aggravated kidnapping instruction, and in view of the fact that the instruction on aggravated sexual assault correctly identified the punishment range for that offense, we should likewise reject appellant’s contention in the instant cause. It was within the jury’s authority to assess a life sentence for the aggravated sexual assault offense. There is no indication in the record that the jury was invited to assess additional punishment for the aggravated sexual assault offense on the basis that he contemporaneously committed the offense of aggravated kidnapping. Cf. Lomas v. State, 707 S.W.2d 566 (Tex.Cr.App.1986). That the jury may have felt a pressure to assess a higher penalty for the aggravated sexual assault because it was erroneously informed it must consider as much as a life sentence for the aggravated kidnapping is a possibility too remote to justify the conclusion, as in Uribe, that appellant was deprived of fair and impartial assessment of punishment for the aggravated sexual assault.
III.
Insofar as it affirmed appellant’s conviction for the offense of aggravated sexual assault, the judgment of the court of appeals should be affirmed. We should also affirm the court of appeals’ ultimate disposition of appellant’s conviction for aggravated kidnapping; that cause should be remanded to the trial court for further proceedings not inconsistent with this opinion. Because the majority does not, I respectfully dissent.
MALONEY, J„ joins.Obviously I would reject the court of appeals' dictum that “[i]f the evidence had been sufficient to create a fact issue on ‘safeness,’ the trial court’s instruction may not have risen to the level of egregious harm." Williams v. State, supra, at 775.