(concurring).
While I fully concur with the majority in its disposition of the case at bar, I feel there is another matter which deserves comment.
At the penalty stage of the proceedings the jury returned both of the following verdicts which were received by the court:
“We, the jury, fix his punishment at imprisonment in jail for 3 months and a fine of $250.00.
/s/ Charles J. Lindeman Foreman
“We, the jury, recommend probation of $150.00 and 3 months imprisonment.
/s/ Charles Lindeman Foreman”
*855While not unmindful of the rule that if the intention of the jury can be arrived at by a fair interpretation of their written findings that such interpretation should be given effect, it is observed that there are two verdicts, each of which assesses a different punishment (as to fine and the issue of probation) applicable to the offense charged. Upon entry of judgment the court had no way of knowing which punishment the jury intended to assess. This is borne out by the judgment which recites, “ * * * the Jury fixed his punishment at confinement in the county jail of Dallas County, Texas for three (3) months and by a fine of $250.00 and recommended probation of $150.00 and 3 months Imprisonment and Costs.”
To further add to the confusion the judgment remanded appellant to the custody of the Sheriff of Dallas County “until all such costs are paid and his fine of $250.00 has been paid and his term thirty (30) days in the County Jail has expired.”
The sentence pronounced reflects that the punishment assessed is a fine of $250.00 and 3 months’ confinement in the county jail.
It is further observed that if the jury recommends probation in its verdict the court must grant it. Article 42.13, Sec. 3(b), Vernon’s Ann.C.C.P. No attempt to grant misdemeanor probation or set conditions thereof appears in the record. Article 42.13, Sec. 4(a), V.A.C.C.P. provides that when a defendant is granted probation “the finding of guilt does not become final, nor may the court render judgment thereon, except as provided in Section 6 of this Article” (relating to revocation of probation).
We find nothing in the record which would have authorized the court to have disregarded the jury’s recommendation of probation.
A probationer may appeal his conviction at the time he is granted or placed on misdemeanor probation. Article 42.13, Sec. 8, V.A.C.C.P. When he does desire to appeal at such time there is no necessity for a judgment and sentence to be entered prior to such appeal. This conclusion is reached when Article 42.13, supra, and Article 42.04, V.A.C.C.P., are read and construed together.
The action of the trial court in receiving two jury verdicts each of which assessed a different punishment applicable to the offense charged was error. I would also reverse for this reason. Stewart v. State, Tex.Cr.App., 422 S.W.2d 928.
I concur.