concurring in part and dissenting in part.
This is one of several death penalty cases submitted on rehearing in which is raised a common troublesome question: Where cause for reversal is found, what is the proper disposition of the judgment of the trial court? In this case the opinion for the court concludes:
“. .. We are of the opinion that the evidence is insufficient to support the ‘yes’ finding on the issue of future violent conduct. Consequently the death penalty must be set aside. See Sanne v. State, [Tex.Cr.App.] 609 S.W.2d 762; Brasfield v. State, [Tex.Cr.App.] 600 S.W.2d 288; Bullington v. Missouri, - U.S. -, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).”
In Brasfield v. State, supra, having found the evidence insufficient to support the affirmative answer to the second issue, we set it aside and consequently entered “a judgment setting aside the penalty assessed by *78the jury as embodied in the judgment,” declaring, therefore, that appellant may not again be tried for the capital murder alleged “wherein the State seeks the death penalty.” By citing Burks v. United States and Greene v. Massey, supra, the clear understanding conveyed by the Court is that constitutional principles of jeopardy mandated that result, and Buffington v. Missouri, - U.S. -, 101 S.Ct. 1852, 68 L.Ed.2d 270, just now confirms that both rationale and result are right. The cause was reversed and remanded, however, because we have sustained two other grounds of error that implicated the process of trial on guilt-innocence. Brasfield, supra, at 298.1
More recently in Sanne v. State, 609 S.W.2d 762, 766-767 (Tex.Cr.App.1980) the Court followed the Brasfield format, holding that “having received a favorable answer to the second punishment issue in his first trial, appellant Sanne should not have been subjected to the risk of receiving the penalty of death upon his retrial following reversal of his first conviction,2 and that his punishment must be reformed from death to life.” Nevertheless, the Court proceeded to consider “the other grounds of error addressed to the guilt stage” of the trial; unlike Brasfield, however, Sanne’s grounds of error were found meritless. The judgment in his case, “reformed to punishment by confinement for life,” was therefore affirmed, Sanne v. State, supra, at 777.
In the case at bar, though the death penalty is set aside for insufficient evidence to support an affirmative answer to the second question, the Court correctly addresses other grounds of error assailing asserted “trial errors” during the guilty stage, rather than immediately to reform the judgment and affirm it, and thereby obviate a new trial. This action comports with Brasfield and Sanne, and whatever justification is believed to warrant departure from their format is not suggested elsewhere.
However, the resultant reversals and remands presently ordered by the Court when a death dealing verdict has been returned by a jury some of whose members were selected in violation of Witherspoon gloss given V.T.C.A. Penal Code, § 12.31(b) by Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) are inapposite, although there is in them the kernel of a theory that a Witherspoon error affects only the issue of punishment. Yet, the remands in such cases as Grijalva v. State, 614 S.W.2d 420 (Tex.Cr.App.1980); Loudres v. State, 614 S.W.2d 407 (Tex.Cr.App.1980); Pierson v. State, 614 S.W.2d 102 (Tex.Cr.App.1981) were correctly ordered, for reasons that are summarized in the margin.3 *79Still, those reasons will not resolve the quite different problem presented in the case at bar.
Unlike a finding that evidence is legally insufficient, Witherspoon errors do not call into play the jeopardy prohibitions of the Fifth Amendment to the Constitution of the United States and of Article I, Section 14 of our Bill of Rights. From the Burks-Greene tandem it is clear that a finding of insufficient evidence to support a judgment of conviction dictates a judgment of acquittal, thereby precluding a second trial. This is a “constitutionally mandated exception” to the settled rule in this State that “no court can alter a discharged jury’s verdict,” Ramirez v. State, 587 S.W.2d 144, 147 n. 2 (Tex.Cr.App.1979). Where, as here, the exception applies, Brasfield v. State, supra, and there are no other grounds of error that invalidate the verdict of guilt, we should reform the judgment to reflect the only available punishment provided for the offense of capital murder4 of which an accused has been flawlessly convicted. Surely the Court is empowered to do so and, having reformed the judgment, is likewise authorized to reform the sentence to conform to the judgment. Article 44.24(b), V.A.C.C.P., Vasquez v. State, 477 S.W.2d 629, 635 (Tex.Cr.App.1972).5
Accordingly, while agreeing that insufficiency of the evidence requires that the punishment verdict be set aside,6 because the majority has rejected what is seen as trial error, I dissent to the action of the Court affirming the reformed judgment.7
.In Brasfield the Court, as is its wont when the issue is raised, first reviewed sufficiency of the evidence to sustain the finding of guilt and, finding it supportive, moved on to other eviden-tiary issues on punishment. Concluding that an affirmative answer to special issue one was supported by the evidence, but that the affirmative answer to the second issue had not been, and noting the latter holding “affects only the death penalty,” we returned to asserted pretrial and trial errors. After sustaining grounds of errors complaining of overruling a motion to quash the indictment, the Court did point out, at 295, its ruling in that respect “raises a question of proper disposition of the cause in its present posture,” but on the stated assumption that the cause would be retried on an amended indictment we went on to consider the remaining grounds of error. Still, this does not mean that in every case all nonevidentiary grounds of error must be reviewed. See Fearance v. State, 616 S.W.2d 207 (Tex.Cr.App.1981).
. The earlier convictions had been reversed in Skillern v. State, 559 S.W.2d 828 (Tex.Cr.App.1977) for the error committed in permitting the jurors to separate after the charge of the court on guilt-innocence had been read to the jury— so-called “trial error,” by which constitutional principles of jeopardy are not implicated. See Burks v. United States, supra, 437 U.S. at 15-16, 98 S.Ct. at 2149-2150; Greene v. Massey, supra, 437 U.S. at 26, 98 S.Ct. at 2155.
. Essentially the reasoning is, as stated in Gri-jalva, though a Witherspoon error taints only the death penalty, “it is not such error as would preclude the State from seeking the death penalty on a retrial” and, therefore, the Court may not reform the punishment to life and affirm that judgment. Underlying the latter statement is the statutorily prescribed scheme of the intimate interrelationship between a verdict, Articles 37.01 and 37.07, § 3(c), V.A.C.C.P., a judgment based on the verdict rendered, Articles 37.12 and 42.01, id.. *79and the sentence pronouncing the judgment and ordering it executed, Article 42.02, id. See Bessett v. State, 78 Tex.Cr.R. 110, 180 S.W. 249 at 250 ff (1915) (Davidson dissenting); Pritchard v. State, 117 Tex.Cr.R. 106, 35 S.W.2d 717 (1931); Wooten v. State, 111 Tex.Cr.R. 524, 15 S.W.2d 635 (1929); Johnson v. State, 125 Tex.Cr.R. 147, 67 S.W.2d 295, 296 (1934); Moore v. State, 83 Tex.Cr.R. 302, 203 S.W. 51 (1918); Williams v. State, 118 Tex.Cr.R. 366, 42 S.W.2d 441 (1931); Chaney v. State, 133 Tex.Cr.R. 517, 112 S.W.2d 464 (1938). Thus, because a jury selected in violation of Witherspoon may not, as a matter of constitutional law, return a verdict which will result in assessment of the death penalty and, therefore, is without authority to render “special verdicts” of “yes” to issues submitted pursuant to Article 37.071(b), any judgment purportedly based on such an invalid verdict is likewise fatally defective and may not be “reformed” into an assessment of punishment at life imprisonment. See Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972): “The verdict having been received by the court and entered of record, the court in its judgment and sentence was not entitled to change the verdict of the jury.”
. Article 37.071(a), V.A.C.C.P., provides that when the defendant has been found guilty of a capital offense, “the court shall conduct a separate sentencing [sic] proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. [Emphasis added].” Section (e) directs that upon a negative finding on any submitted issue, “the Court shall sentence the defendant to confinement in the Texas Department of Corrections for life. [Emphasis added].” Capital murder is, of course, a capital felony, V.T.C.A. Penal Code, § 19.03(b), the prescribed punishment for which is confinement for life or death, d., § 12.31(a). That the Court did not follow this procedure in Warren v. State, 562 S.W.2d 474 (Tex.Cr.App.1978) is no doubt because Burks and Greene had not then been decided.
. Such a disposition may well be dictated by the policy considerations underlying the jeopardy doctrine; Even though his life is no longer in jeopardy, “principles of fairness and finality” would seem also to require that appellant not be subjected to another ordeal of trial for the same offense. See United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975). In any event, that the constitutional jeopardy doctrine precludes the State from again seeking the death penalty is what distinguishes that which we should do here from the remand required by the procedural scheme of Texas law upon the sole finding of a Wither-spoon-Adams error in such cases as Grijalva, Loudres and Pierson [see n. 4, ante].
. Just now enacted by the Legislature, House Bill No. 1164 purports to direct that when an affirmative answer to any special issue on punishment is found to be without sufficient evi-dentiary support, and the prosecutor requests it, the “sentence” of the trial court shall be reformed to punishment at confinement for life.
. In this respect I agree with that part of the Dissenting Opinion by Judge Roberts which examines them and finds error in failing to give a charge on self-defense.