dissenting and dissent from denial of motion for rehearing.
After considering the State’s motion for rehearing, I withdraw my original concurring opinion dated January 8, 2003, and incorporate it here in this dissenting opinion and dissent to the denial of the State’s motion.
What the majority refuses to reconsider, and what I overlooked in my previous concurring opinion, is a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner that it can be corrected. See Tex.R.App. P. 33.1. Here, the trial court gave Loredo ample opportunity to correct its assessment of the juror Loredo sought to challenge. In response to Loredo’s challenge, the court said:
My recollection ... is that while she did tell you at one time that probation would not be a possible punishment in her mind that when I asked her a question she recanted and said that she would. Does anybody disagree with that? Or have I screwed the numbers up again?
Loredo’s counsel said nothing.
The Court of Criminal Appeals has said: A counsel’s statement about an occurrence in the courtroom, which was made for the purposes of the record, recorded by the court reporter, undisputed by the opposing counsel, and unquestioned and unqualified by the judge in whose pres-*40enee the statement was made, establishes the occurrence for purposes of the appellate record. Yarborough v. State, 947 S.W.2d 892, 895 (Tex.Crim.App.1997) (citing Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975)).
It would be illogical for this not to apply to the trial court’s statements as well. But if one would take issue with that reasoning, Loredo did not dispute the prosecutor’s statement that, “[s]he did say something about probation being an appropriate consideration.”
The mistake made by the trial court and the prosecutor is similar to a mistake made by a prosecutor when reciting race neutral reasons for a peremptory strike in the wake of a Batson1 challenge. See Ford v. State, 1 S.W.3d 691 (Tex.Crim.App.1999). In Ford, the appellate court reversed the trial court because it determined no facts in the record supported the race-neutral reasons given by the State. Id. at 693. When confronted with a Bat-son challenge, the prosecutor stated that she struck a particular juror because the juror knew the defendant’s mother. Id. at 692. The defendant did not take issue with that statement. It was revealed on appeal that the prosecutor questioned another juror about knowing the defendant’s mother, not the juror who was the subject of the Batson challenge. Id. at 692-693. The State maintained that the prosecutor’s statement was an “honest mistake.” Id. at 693. In reversing the appellate court, the Court of Criminal Appeals noted that the reason for striking the juror was uncontra-dicted and facially plausible. Id.
Just as in Ford, the trial court in this cause believed the challenged juror had been rehabilitated. The trial court was mistaken. But no one disputed the court’s recollection even when given an opportunity to do so. Loredo should not be allowed to claim on appeal that the trial court erred when counsel took no effort to give the trial court the opportunity to correct its recollection of events.
Accordingly, because Loredo failed to preserve the issue for review, I would overrule it. Because the majority does not, I respectfully dissent. Additionally, because the majority refuses to require a response and to address the issue raised in the State’s motion for rehearing, I respectfully dissent from the denial of the motion for rehearing.
Additionally, as noted originally in the concurring opinion, without adequate analysis, the majority purports to hold that community supervision is within the range of punishment to be considered by a juror. This holding has already been made by the Court of Criminal Appeals. See Satterwhite v. State, 858 S.W.2d 412, 418 (Tex.Crim.App.1993); Williams v. State, 773 S.W.2d 525, 536 (Tex.Crim.App.1988); and Pierce v. State, 696 S.W.2d 899, 902 (Tex.Crim.App.1985) (overruled on other grounds, 757 S.W.2d 744 (Tex.Crim.App.1988)). There is no need for the majority to make a holding when there is precedent by which we are bound.
There is also no need to cite case authority to support the majority’s “holding” that does not actually support the proposition stated. See, e.g. Johnson v. State, 982 S.W.2d 403 (Tex.Crim.App.1998)(not a probation case) and McClenan v. State, 661 S.W.2d 108 (Tex.Crim.App.l983)(statement was dicta and not necessary to resolve recusal issue).
Although we are bound by the prior decisions of the Court of Criminal Appeals, I believe there is a substantial question regarding whether community supervision is actually punishment and must, there*41fore, be within the range of punishment that a juror must be able to consider. In light of more recent cases such as Speth and Ex parte Williams, in which the Court of Criminal Appeals has clearly stated that community supervision is not part of a sentence, the question of whether community supervision is punishment ought to be reexamined. See Speth v. State, 6 S.W.3d 580, 532 (Tex.Crim.App.2000); Ex parte Williams, 65 S.W.3d 656, 657 (Tex.Crim.App.2001).
. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).