OPINION
PHILLIPS, Judge.The offense is driving while intoxicated; the punishment, assessed by the jury, $300.00 fine and three days confinement.
Appellant’s first ground of error contends the trial court committed reversible error by denying appellant’s written request to have the court assess punishment. On June 11, 1975, appellant filed an application for misdemeanor probation and two requests, which the trial court denied, to have the court assess punishment.
Art. 37.07, Sec. 2(b), V.A.C.C.P. provides: “Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.”
Under Art. 37.07, Sec. 2(b), supra, it is the responsibility of the trial judge to assess punishment unless the accused requests that the jury assess punishment either in a timely filed motion so electing or in a sworn motion requesting the jury to recommend probation. See Bullard v. State, Tex.Cr.App., 548 S.W.2d 13 (decided February 6, 1977); White v. State, Tex.Cr.App., 478 S.W.2d 506; Hall v. State, Tex.Cr.App., 475 S.W.2d 778; Langham v. State, Tex.Cr.App., 473 S.W.2d 515. Once the accused so elects, he may change his election of one who assesses the punishment only if the attorney for the State consents. Stephens v. State, Tex.Cr.App., 522 S.W.2d 924; Gonzales v. State, Tex.Cr.App., 466 S.W.2d 772; Palasota v. State, Tex.Cr.App., 460 S.W.2d 137.
In the instant case appellant’s application for probation prays that he be granted probation in said cause, and states he “would show the court” that he is eligible for probation. The application does not contain a request for the jury to grant probation. Cf. White v. State, supra; Ortegon v. State, Tex.Cr.App., 459 S.W.2d 646; Martin v. State, Tex.Cr.App., 452 S.W.2d 481.1 Appellant did not invoke the statutory right afforded by Art. 37.07, supra, to have the jury assess punishment. It was the “responsibility of the judge to assess punishment,” and the trial court was without authority to deny appellant’s request to have the court assess punishment. Further, the appellant was not required to *743file a written motion of election at the time he entered his plea, since he did not elect to have the jury assess punishment.2
In view of the fact that the appellant at no time requested that the jury consider the issue of punishment, this case is distinguishable from Benson v. State, Tex.Cr.App., 496 S.W.2d 68; Ortegon v. State, supra, and Martin v. State, supra.
In Benson, the defendant elected before trial to have the judge assess punishment and changed his election after the jury announced they had reached a verdict, but before the verdict was received by the court. The court granted the defendant’s request to have the jury assess punishment even though the State did not consent. We held the error in submitting punishment to the jury was against the State and not against the defendant and the defendant could not complain because the court granted his request. Further, the defendant was not harmed by the trial court’s action because the judge made an independent finding that the defendant was the same person who committed a like offense as alleged in the indictment for enhancement under Art. 62, V.A.P.C.
In Ortegon, this Court held a written request for the court to assess punishment had the effect of withdrawing a prior request for the jury to assess punishment, which request was evidenced by a motion for probation, and constituted a waiver of the right afforded by Art. 37.07, Sec. 2(b), supra.
In Martin, the accused filed a motion for probation to the jury and a motion to have the court assess punishment. After the jury returned a finding of guilty, the jurors were discharged and the court assessed punishment. The defendant did not object to discharge of the jurors and no question was raised at the hearing on punishment or in a motion for new trial concerning the right of the trial court to assess punishment. This Court held that even if the motion to have the court assess punishment was not a request for the judge to assess punishment, the circumstances showed the defendant changed his election and waived the right to have the jury assess punishment.
The circumstances here presented are similar to the circumstances presented in Dickson v. State, Tex.Cr.App., 492 S.W.2d 267, wherein the issue of punishment was presented to the jury even though the defendant had not made such an election and had not made application for probation. Although the jury was not authorized to assess punishment under Art. 37.07, Sec. 2(b), supra, we held reversible error was not presented in light of the defendant’s failure to object to the procedure.
However, in the instant case, appellant did object to the submission of the punishment to the jury when he filed a request for the judge to assess punishment. The question remains whether failure to object when the jurors were not discharged after the finding of guilt was received constitutes a waiver. In Dickson, the issue did not arise until the punishment hearing commenced before the jury. In the instant case, the issue arose at the time appellant entered a plea and made his election. There is nothing in the record to show appellant changed his election at the close of the guilt stage of the trial, and we cannot presume such from a silent record. In light of the trial court’s denial of the appellant’s earlier request, we hold appellant did not waive his right to have the judge assess punishment under Art. 37.07, supra, and appellant was not required to reurge his request in order to preserve the question for review. See Waythe v. State, Tex.Cr.App., 533 S.W.2d 802; Glover v. State, Tex.Cr.App., 532 S.W.2d 346; Terrell v. State, Tex.Cr.App., 521 S.W.2d 618.
*744Appellant’s remaining ground of error relates to a comment by the court during the punishment hearing and need not be discussed in light of the disposition.
We cannot presume what punishment the court would have assessed. Cf. Benson v. State, supra. The error herein relates to punishment only. Accordingly, the punishment heretofore assessed is set aside, and the cause is remanded to the trial court for the proper punishment to be assessed by the court and the pronouncement of sentence, and further proceedings authorized by Art. 40.09, V.A.C.C.P.
It is so ordered.
DOUGLAS, J., concurs in the results.. In White the accused filed a motion seeking probation from the jury. In Ortegon the defendant asked “the court or jury” to grant probation. In Martin the defendant asked the court to submit to the jury the application for a probated sentence.
. The State points out that the record does not reflect whether the application for probation was filed before one or both requests for the court to assess punishment. The order in which these papers were filed is of no consequence in light of the fact that appellant did not at any time request the jury to consider the issue of punishment and in view of the fact that there was no necessity to file a motion for the court to assess punishment.