dissenting.
I respectfully dissent. The majority has predicated its reasons for overruling the appellant’s ground of error three on the following observations and conclusions. First, the majority states that the appellant failed to object to the incorrect charge at the trial stage and hence waived the right to complain of it on appeal. Second, the majority is of the opinion that the error was harmless and hence not fundamental. Finally, it concluded that the error could be cured by simply reforming the judgment by cutting off the unauthorized fine assessed by the jury and otherwise affirming the trial court judgment.
In ground of error three, the appellant contends that the trial court committed fundamental error by charging the jury on unauthorized punishment, which is violative of Section 12.42(c) Tex.Penal Code Ann. (Vernon 1974). The section reads:
(c) If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of *667not more than 99 years or less than 15 years.
The applicable part of the charge reads:
Therefore, you will assess the punishment of the defendant at confinement in the Texas Department of Corrections for not less than fifteen years nor more than ninety-nine years, or life. In addition thereto, a fine not to exceed $10,000.00 may be assessed.... (emphasis added)
The jury assessed a punishment of 60 years confinement and a $10,000 fine.
The appellant, contends that a $10,000 assessment of fine constituted fundamental error and therefore requires reversal. I agree. It is undisputed that the charge given as to the applicable punishment was erroneous and not objected to at the trial level. Therefore, it will not require reversal unless fundamental error is shown. The Texas Court of Criminal Appeals defined fundamental error as being “an error ‘calculated to injure the rights of the appellant to the extent that he has not had a fair trial’.” Ross v. State, 487 S.W.2d 744 (Tex.Cr.App.1972).
I think that appellant’s reliance on Davis v. State, 519 S.W.2d 874 (Tex.Cr.App.1975) is well placed. There the fine and sentence were unauthorized. In Davis, as in the case before us, the forbidden conduct is governed by statute alone, and the punishment exceeded the provisions of the statutes. The court reasoned:
Since the given conduct was governed alone by said Section 50A at the time of the offense, the punishment authorized and imposed was improper and presents fundamental error.
The State and the majority opinion rely principally on Daniels v. State, 527 S.W.2d 549 (Tex.Cr.App.1975) and Adams v. State, 642 S.W.2d 211 (Tex.App.—Houston [14th Dist.] 1982, no writ). Both of these cases may be distinguished. In Daniels, the court omitted the $10,000 fine option from the charge when it should have been included. In our case, the court included the $10,000 fine option when it should have been omitted. (emphasis added) In Daniels, obviously no fine was assessed, while in our case the appellant was assessed the unauthorized $10,000 fine. In Daniels, the wrong charge conceivably may have benefited the accused. It would strain my logic to conclude that the appellant was not harmed by having a fine of $10,000 added to his 60 year sentence.
In Adams, the jury assessed life plus the fine of $10,000, under the erroneous charge by the court that both the life sentence and a fine not to exceed $10,000 could be assessed. Pursuant to 12.42(c), supra, the $10,000 fine was not authorized. The appellate court reformed the sentence by leaving off the fine and declaring that “... We are not speculating on the punishment the jury would have given had there been no defect in the charge.” In the ease before us, the jury, under a similar erroneous charge, sentenced the appellant to 60 years and a fine of $10,000. The majority admits that the court’s charge was erroneous, but that it could “only conceive that the possibility of assessing a fine influenced the jury to reduce the length of confinement or had no effect at all.” This conclusion would have to be pure speculation. In Adams and our case, the assumption has been made that the juries, if correctly charged, would have assessed life and 60 years, respectively. This is the very appellate conduct that the Texas Court of Criminal Appeals condemned in Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978) on motion for rehearing, a case in which the court had originally predicated its judgment on the assumption that the jury, which convicted and assessed the punishment at five years for burglary of a habitation, would assess the same punishment for burglary of a building. Burglary of a habitation was not proven — burglary of a building was proven. In reversing and remanding for a new trial, the court stated:
We have now concluded that we were incorrect in both cases. It is not proper for this Court to speculate on what punishment would have been assessed by either the jury or the judge. This Court by doing so determined the punishment; we were not authorized to determine the *668punishment in either case. In Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976) we should have remanded the cause for the trial court to reassess punishment and to that extent we overrule our decision in that case.
The majority raised the question of whether the admitted error was harmless and benefited the appellant, concluding that it was to his advantage. Here again speculation arises. Absent the $10,000 fine option, would the jury have considered the crime to be less serious and imposed a lesser number of years? Would it have affected the jury’s deliberations in any way? No one knows or will ever know. Once an erroneous charge is given and the jury assesses any punishment except the minimum, there is absolutely no basis for assuming that the appellant has not been harmed. Nalls v. State, 87 Tex.Cr.R. 83, 219 S.W. 473 (Tex.Cr.App.1920).
Lastly, the majority’s holding would defeat the right and option of the appellant to have his fate and punishment, if any, determined by a jury instead of the court as accorded him by article 37.07, Sec. 2(b)(2), Y.A.C.C.P.
The law in Texas is now settled that where an error has occurred in the sentencing or punishment phase of a trial and the assessment was made by the jury, the appellate court does not have the authority to reform the sentence, nor remand for a new trial on punishment only. The accused is entitled to a new trial on the issue of guilt as well. Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1981); Murphy v. State, 619 S.W.2d 164, 166 (Tex.Cr.App.1981); Ex Parte Nivens, 619 S.W.2d 184 (Tex.Cr.App.1981). In Williams v. State, 596 S.W.2d 903 (Tex.Cr.App.1980), the court stated:
Although, the error relates to punishment only, the jury, not the court assessed punishment. We may not, therefore, reform the sentence or remand for a new trial on punishment only.
Therefore, I would sustain appellant’s third point of error, reverse and remand the cause for a new trial.