dissenting.
On original submission, appellant’s conviction was reversed on the basis of the United States Supreme Court’s holding in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). This Court further ordered the cause remanded to the trial court. Today, the majority overrules the State’s motion for rehearing without written opinion.
In its motion for rehearing, the State urges that reversal due solely to Adams error should not automatically require a remand to the trial court, but that this Court has authority to reform the judgment to life imprisonment whenever the State certifies that such would be in the best interest of justice. This argument is predi*113cated on the proposition that, since Adams or Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), errors only prohibit the execution of a sentence of death and does not render the finding of guilt invalid, this Court may reform the sentence to life since that is the only other punishment available for the offense committed. The State is correct in this contention, and the motion should be granted.
I.
In Witherspoon v. Illinois, supra, the Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. 391 U.S. at 522, 88 S.Ct. at 1777. In so holding, the Court made it abundantly clear that its decision did not “render invalid the conviction, as opposed to the sentence, in this or any other case.” 391 U.S. at 522, fn. 21, 88 S.Ct. at 1777, fn. 21. (Emphasis added)
In Adams v. Texas, supra, the Court held that the provisions of V.T.C.A. Penal Code, Section 12.31(b), could not constitutionally coexist with Witherspoon, and, based on Witherspoon, held:
“... Accordingly, the Constitution disentitles the State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded.
“The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty.” 100 S.Ct. at 2529. (Emphasis added)
Clearly, these two decisions leave to the states the proper procedure to be followed when a death penalty must be set aside. Several other jurisdictions whose laws provide only for death or life imprisonment as the punishment for a specified crime have determined that a proper remedy to be utilized when the jury selection in a capital case is infected by Witherspoon error is to reduce the punishment of death to life imprisonment. See, State v. Laws, 51 N.J. 494, 242 A.2d 333 (1968), cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968); Zimmer v. State, 206 Kan. 304, 477 P.2d 971 (1970); State v. Sherrick, 105 Ariz. 514, 467 P.2d 908 (1970); Hawkins v. Rhay, 78 Wash.2d 389, 474 P.2d 557 (1970); Segura v. District Court, 179 Colo. 20, 498 P.2d 926 (1972).
I think it also significant to note here that at least two jurisdictions who were faced with this issue but whose laws provided for alternative punishments in addition to life or death have rejected the reformation argument but only because there existed more than one alternative. Following the decision of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court of Virginia, in setting aside a death penalty conviction, noted that the punishment could not be reformed to life imprisonment because a third alternative, 99 years’ imprisonment, was available. Hodges v. Commonwealth, 213 Va. 316, 191 S.E.2d 794 (1972). In reaching that decision, the court refused to follow the California Supreme Court, People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972), and reform the punishment to life because in California only life or death was available and “[n]o such restrictive penalty provisions, however, obtain in Virginia.”
Similarly, in Beaver v. State, 475 S.W.2d 557 (Tenn.Cr.App.1971), the Tennessee Court of Criminal Appeals, in remanding the appellant’s case for a new hearing on punishment only, stated:
“Had we not the variety of punishment for first degree murder (from over twenty years, to life, to execution), T.C.A. § 39-2405, we could simply substitute the alternative to death (usually, in other jurisdictions, life imprisonment) and enter judgment accordingly, if the State did not insist upon again seeking the death penalty.” Beaver v. State, at 560.
I conclude, as have other jurisdictions, that where error occurs in the assessment of a death penalty which would prohibit its imposition, if there is but one other punishment which could be given, i. e. life impris*114onment, there exists no constitutional infirmity in reforming the punishment. State v. Laws, supra.
II.
It being well established that a death penalty which was infected with Wither-spoon error may be reformed to life imprisonment where that is the only other available punishment, I proceed to consider whether existing Texas law will allow the same result. Such is not an issue of first impression before this Court.
In 1972, this Court held in Ocker v. State, 477 S.W.2d 288 (Tex.Cr.App.), that a death penalty secured in violation of Witherspoon could not be reformed to life. In so holding, this Court noted that the holdings of the Supreme Court of New Jersey could not be applied in Texas because, “in New Jersey the punishment for murder in the first degree ... is either death or life imprisonment depending upon the verdict of the jury.” Under the statutes then in effect in this State, the alternatives to punishment in capital cases also included a term of years. Since, at that time, the alternative punishment was not fixed by law, the cause was remanded.
The Court went on to say that:
“If our statutes provided for a fixed punishment in lieu of the death penalty, the situation would be closely akin to the cases in which the punishment is absolutely fixed, and in which this Court has assessed punishment.” Ocker, at 290.
With the passage of the 1974 Penal Code, the situation is now identical to the New Jersey cases. Appellant having been found guilty of capital murder, the only punishment that could have been imposed was either life imprisonment or death. Article 37.071, V.A.C.C.P.
Article 44.24, Subsection (b), V.A.C.C.P., provides that:
“The Court of Criminal Appeals may affirm the judgment of the court below or may reverse and remand for a new trial or may reverse and dismiss or may reform and correct the judgment as the law and the nature of the case require.” (Emphasis added)
It has been suggested that this Court is without authority to reform a death penalty to life imprisonment in that such would be an usurpation of the constitutional power of a jury and would amount to a reformation of a verdict, which is prohibited. Such a contention was rejected by the Supreme Court of Colorado in Segura v. District Court, 179 Colo. 20, 498 P.2d 926 (1972). In overruling the appellant’s contention that a different punishment could only be determined by a jury, the Colorado Court held that substituting a life sentence for death was nothing more than a ministerial act that “imposed the judgment which would have been imposed had the jury [selected in violation of Witherspoon ] in fact returned the only verdict it was qualified to return under the circumstances.” Segura v. District Court, supra, 498 P.2d at 928-929.
This Court has stated that “except where the penalty is absolutely fixed by law” it may not pass sentence. Ocker v. State, supra, at 290. Further this Court has held that when a juvenile is found guilty of capital murder and since V.T.C.A. Penal Code, Section 8.07(d), disallows the punishment of death, the trial court may properly remove the sentencing authority from the jury and assess the punishment at life imprisonment since that is the only punishment available. Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977).
Since life imprisonment is the only punishment which could be entered on the judgment in this case, I hold that, where the only error which occurs in a capital case affects the imposition of the penalty of death, this Court may properly reform the judgment to reflect the punishment to be life imprisonment.
In so concluding, I am not unaware of the argument that such a reformation would invade upon the role and power of the jury and that this Court is without authority to reform a verdict. Not only has that argument been rejected elsewhere, Laws and Sequra, supra, it overlooks the unique procedures employed in a capital case in Texas.
*115Under Article 37.071, V.A.C.C.P., the jury does not assess punishment. Punishment is set by the court based upon the jury’s answer to special issues. Article 37.071(e), V.A.C.C.P. Furthermore, pursuant to Article 44.24, V.A.C.C.P., this Court may “reform and correct the judgment, as the law and nature of the case may require.” Under Article 42.01, V.A.C.C.P., the term “verdict” as used in Sections (1),(7)-{1),(8), clearly refers to the decision of the jury as to guilt or innocence. A reformation of the punishment in cases such as the one before us would only affect Section (1),(10) of Article 42.01, relating to the punishment “as has been determined.”
III.
Having recognized that Witherspoon and Adams error do not affect the determination of guilt, and having also determined that this Court has authority to reform a death penalty to life imprisonment, I now turn to the contention of the State that such reformation should occur only when the State certifies that the interests of justice would best be served thereby or that, absent such certification, the cause should be remanded to the trial court for a complete retrial where the death penalty would again be a possible punishment. As stated in Grijalva v. State, 614 S.W.2d 420 (1980), the error presented here is not such as to prevent the State from retrying the defendant and seeking the death penalty. If the State certifies to this Court that it no longer desires to seek the death penalty, should not this Court recognize that “waiver” and reform the punishment to life — the only punishment available when the State has, through its discretion, removed death as a possible punishment? Such an approach would not be novel, would not be novel.
In an almost identical situation, the New Jersey Supreme Court concluded that, even absent specific authority for the State to waive the death penalty, a death penalty conviction infected with error relating to punishment only could be reformed where the prosecution makes known it would not seek death on retrial. State v. Laws, 51 N.J. 494, 242 A.2d 333 (1968), cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968). Such a waiver could, the court noted, be effected by the prosecution’s seeking an indictment for a lesser offense; by accepting a plea negotiation for a lesser offense; or by proceeding to trial on a lesser offense. “As a practical matter, whenever the prosecutor decides not to ask for the death penalty he may so tell the jury and that effectively eliminates its return.” Laws, 242 A.2d at 343.
As in Laws, it would be “utterly wasteful and needlessly burdensome to conduct the trial as though it were a capital case” if the State does not seek the death penalty. “Here there was a legal error to the sentence alone and the prosecutor, assuming as we find that a new trial on punishment alone is unavailable, seeks modification rather than retrial; in effect the death penalty is being waived. It undoubtedly could have been waived before and during the trial and there is no rational basis for denying the power to waive now.” Laws, 242 A.2d at 342. See also, State v. Sherrick, 105 Ariz. 514, 467 P.2d 908 (Ariz.1970), and Williams v. State, 183 Ark. 870, 39 S.W.2d 295 (1931).
This Court has the statutory authority to reform a judgment as the law and the nature of the case may require. The State, through her district attorney, has indicated to this Court that “a retrial of this case would not be in the best interest of justice and of the public and that the State desires to forego such a retrial and the possibility of a death penalty in this case.” The nature of this case today dictates that the judgment in the case be reformed to reflect the punishment of life imprisonment.
If the State of Texas, through her elected prosecutor, certifies that justice would be served by such a reformation, then this Court can and should reform the judgment. Similarly, if the State feels that death is indeed proper and wishes to again seek that punishment, then that option should be available also.
*116This Court is charged by statute to determine appeals with due regard to the rights of the parties and proper administration of justice. Article 44.23, V.A.C.C.P.
As pointed out by Judge Roberts in his dissenting opinion in Evans v. State, 614 S.W.2d 414 (1980):
“There is nothing in the Constitution that requires us to set aside the judgments of guilt (which is free of error so far as the Court tells us); to cloak the properly-convicted appellants in the presumption of innocence; to require the State to marshall evidence that is years and years old; and to require the sizeable expenditure of time and money that attends a capital trial.”
Both reason and justice indicate that this Court should give careful consideration to the “nature of the case” before it, and if justice would best be served by reforming appellant’s punishment of life imprisonment, that is what should be done.
The majority has concluded that our statutory scheme prohibits the results set forth in this opinion. Perhaps today’s decision will ring the death knell for the rule requiring a complete retrial of guilt when an error has occurred at the sentencing stage. The Legislature can, and should, immediately remedy by amendment the law that allows a lawfully convicted felon another trial when there was no constitutional infirmity in the verdict that found him guilty.
Finally, I am compelled to speak briefly to the concurring opinion that has been filed in this casej I believe my reasons for concluding as I have are sufficiently set forth above. I do not, however, believe that when this Court reaches a legal conclusion that is also logical we are being pragmatics. Instead, I believe we have accomplished that which is the intent of the law. Some people call it Justice.
I dissent.
ROBERTS, J., joins in Part I and Part II only. DALLY, J., joins in the dissent.