dissenting.
I concur with the majority’s holding that the presented evidence is sufficient to sustain the verdict. However, I must dissent from the majority’s holding that the trial court has discretionary authority to require a period of penal confinement as a condition of probation after a jury in a felony case has recommended unconditional probation.
The defendant’s election of punishment is allowed pursuant to article 37.07 of the Code of Criminal Procedure:
(b) [I]f a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that ... (2) ... where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury....
TEX.CODE CRIM.PROC.ANN. art. 87.-07(2)(b) (Vernon Supp.1987) (emphasis added).1 Custard timely requested that punishment be assessed by the jury. Section 37.07(2)(b)(2) is mandatory in stating that the jury shall determine punishment in such instances. There is long-standing precedent that “[t]he court has no authority to enter a judgment for any term other than that specified by the jury’s verdict.” Ex parte King, 155 Tex.Cr.R. 217, 233 S.W.2d 501 (1950). The court cannot substitute its own findings for those of the jury. Gordon v. State, 707 S.W.2d 626, 629 (Tex.Crim.App.1986).
Article 42.12, section 3a addresses the necessary requisites and limitations on the jury’s right to grant probation. This code section is divided into two subsections separately treating felony and misdemeanor convictions.
Sec. 3a.(a) When there is a felony conviction in any court of this State and the punishment assessed by the jury shall not exceed ten years, the jury may ree-*8ommend probation.... In all eligible cases, probation shall be granted by the court, if the jury recommends it in their verdict, for the period recommended by the jury.
(Emphasis added). Section 3a(a) mandates limited trial court intervention, while in section 3a(b) the trial court has been granted article 42.12, section 6b detention discretion when there is a misdemeanor conviction:
Sec. 3a.(b) Where there is a misdemeanor conviction in any court of this state and the punishment assessed by the jury shall be by imprisonment in jail or by a fine or by both such fine and imprisonment, the jury may recommend probation....
If probation is granted by the jury in a misdemeanor case, the court may impose only those conditions which are set out in Section 6, 6a, or 6b hereof any one or all of those conditions....
(Emphasis added). Absent statutory authority, I would hold that the trial court does not have the discretionary power to impose additional penal conditions when a jury assesses probation in a felony conviction. Therefore, I would reform the trial court’s judgment, deleting the thirty-day assessment of jail time and affirm the conviction and jury punishment.
. All subsequent statutory references are to the Texas Code of Criminal Procedure.