dissenting.
In order to affirm this capital murder conviction a plurality of the Court today is willing to call a procedure a “jury trial” though plainly it is not. To that same salutary end, the plurality further threatens to dismantle all of our recent caselaw regarding applicability of the rule governing harmless error on appeal. Because I do not believe affirming a capital murder conviction is worth the jurisprudential havoc, I dissent.
I.
In his second point of error appellant complains that the trial court reversibly erred in taking his guilty plea outside the presence of the jury. He contends that this procedure violated his unwaivable right to trial by jury in any capital case in which the State will pursue the death penalty. Articles 1.14(a) and 1.13(b), V-A.C.C.P. The plurality today responds that as long as the jury returns a verdict of guilty and answers the special issues pursuant to Article 37.071, Y.A.C.C.P., appellant has received all the trappings of a jury trial — never mind the jury never heard appellant enter his plea. It is enough that the trial judge told the jury he did. Op. at 930-931. I cannot agree.
The plurality casually observes that, while our caselaw “has emphasized that a plea of guilty before a jury is not a waiver of a jury trial, we have placed no importance on whether the jury was present or absent when the defendant entered his plea of guilty.” Op. at 930. If this is true, it is only because so far in our caselaw the issue has not arisen. Certainly there was no question raised in the cases cited by the plurality that the guilty plea was entered in the jury’s presence.
In Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984), we addressed the contention that a guilty plea before the jury in a capital case amounts to an impermissible waiver of trial by jury. We responded by pointing out that pleas of guilty before the jury have always been considered by our law to constitute trial by jury. Id., at 318, citing Miller v. State, 412 S.W.2d 650 (Tex.Cr.App.1967). There was no doubt in Williams that the guilty plea was taken before the jury. The claim was that taking a guilty plea in the jury’s presence, and then proceeding straight to punishment, constituted a unitary trial, contrary to our statutory capital sentencing scheme, which requires bifurcation. In Williams and in Holland v. State, 761 S.W.2d 307, 313 (Tex.Cr.App.1988), where a similar claim was made, the Court held “that a plea of guilty before a jury in a capital case constitutes trial by jury whether such a proceeding be denominated ‘bifurcated’ or ‘unitary’ in nature.” We had no occasion in these cases to “plaee[ ] ... importance on whether the jury was present or absent when the defendant entered his plea of guilty.” It was clear in each of those cases that the jury was present. Williams and Holland do not support the plurality’s conclusion today.1
Appellant did obtain a jury verdict in this cause, both as to guilt and as to punishment. *946The plurality holds, if only by juxtaposition, that this is enough fully to satisfy his right to trial by jury in a capital case. (“In appellant’s case the jury entered a verdict as to his guilt and answered the special issues under Article 37.071; appellant received a jury trial.” Op. at 931.) Yet it seems to me that under the circumstances neither verdict affords appellant much that can meaningfully be said to vindicate his unwaivable constitutional right to trial by jury.
It is true enough that it was a jury that returned a verdict of guilty in this cause. The jury had no alternative, since, as is the practice in guilty pleas before the jury, the trial court here instructed the jury that it must return a guilty verdict. This instruction is the product of this Court’s observation of “the long established rule that a plea of guilty to a felony charge before a jury admits the existence of all incriminating facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed.” Reyna v. State, 434 S.W.2d 362, 364 (Tex.Cr.App.1968). It is thus apparently the law in Texas that, confronted with a plea of guilty in a felony case, even a capital felony, a jury has no legal option but to find the pleader guilty. Fairfield v. State, 610 S.W.2d 771 (Tex.Cr.App.1981); Morin v. State, 682 S.W.2d 265 (Tex.Cr.App.1983)
It is also true that it is the jury that answers the special issues at the punishment phase of a capital prosecution in Texas. This is so if for no other reason than that Article 37.071, § 2(a) expressly mandates that the capital punishment proceeding “shall” be conducted “before the trial jury.” In the vernacular of Marin v. State, 851 S.W.2d 275 (Tex.Cr.App.1993), this language might be said to identify a fundamental feature of the system, not optional with the parties. At the very least it identifies a right to jury determination of the special issues. If Article 37.071 identifies a feature of the system, then anything other than jury determination of special issues is simply intolerable, by virtue of the language of Article 37.071 itself. If it identifies a right, then arguably it cannot even be waived, at least not when read in conjunction with Articles 1.14(a) and 1.13(b), because under those provisions “the right of trial by jury” can only be waived if the State forsakes the death penalty. See Powell v. State, 897 S.W.2d 307, 318 (Tex.Cr.App.1994) (Clinton, J., concurring).
Either way, the right to a jury verdict on special issues is purely a creature of statute. There is no right under the United States Constitution to a jury determination of special issues. Cabana v. Bullock, 474 U.S. 376, 385-86, 106 S.Ct. 689, 696-97, 88 L.Ed.2d 704, 716 (1986). Nor is there any such right under the Texas Constitution. Bullard v. State, 548 S.W.2d 13, 19 (Tex.Cr.App.1977). That the statute mandates a jury decision on special issues in the punishment phase of a capital murder trial would not seem to vindicate any constitutional right to trial by jury.2
Yet the plurality says appellant fully enjoyed his right to a jury trial because the jury returned a guilty verdict and a verdict on the punishment issues. If this is everything appellant is entitled to, then the right to trial by jury is a piddling thing. A jury has no alternative but to follow the trial court’s instruction to return a guilty verdict. *947And jury determination of punishment is not even part of any constitutional right to jury trial. If the jury need not actually be present to hear the capital defendant’s plea of guilty, it is hard to identify just what the constitutionally significant jury function is that Articles 1.14(a) and 1.03(b) so assiduously protect.
There are many who will regard a requirement that the jury actually hear the guilty plea as a mere formality. But a guilty verdict cannot rest upon thin air. When a criminal accused pleads not guilty to a felony offense, he puts the State to its proof. In that event a guilty verdict must be predicated upon evidence that is sufficient to convince (and that actually does convince) the factfinder beyond a reasonable doubt of the defendant’s guilt. In a plea of guilty in a felony trial before the court, “in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Article 1.15, V.A.C.C.P. But in a plea of guilty before the jury, the jury is authorized (indeed, apparently required) to find the defendant guilty on the basis of his naked plea. The presumption of innocence and the requirement of evidence sufficient to convince the factfinder beyond a reasonable doubt do not pertain. Fairfield v. State, supra, at 776 & n. 5. Unless evidence adduced to inform the jury’s discretion in assessing punishment should raise a substantive issue as to the defendant’s guilt,3 the jury can only convict. Id. In essence, the guilty plea before the jury obviates the State’s burden of proof and stands in the place of actual evidence adduced in support of a verdict (in a jury trial) or judgment (in a bench trial). It is not clear whether the plea thus operates as conclusive evidence of guilt, or simply authorizes conviction in the absence of evidence. Either way, it seems to me, the jury itself must actually hear it. If the jury has not at least heard the plea, we cannot credibly justify excusing it from its traditional factfinding function, and still maintain that we have afforded the capital defendant anything approaching a “jury” trial. In what possible sense could we say that he has obtained his right to a jury assessment of guilt/innocence (which is, after all, the only thing we have said the constitutional right to trial by jury guarantees)?
Because the jury was not present to hear him enter a plea of guilty in this cause, appellant was denied his right to trial by jury. This right is “inviolate,” under Article I, § 15 of the Texas Constitution, and, in a capital case in which the State pursues the death penalty, cannot even be affirmatively waived, much less forfeited by failing to object. Articles 1.14(a) and 1.13(b), supra; Marin v. State, supra. We should reverse the conviction and remand the cause to the trial court for new trial. Because the Court does not, I dissent.
II.
I also object to the plurality’s treatment of appellant’s first point of error. Holding that the trial court erred in failing to admonish appellant in accordance with Article 26.13(a), subsections (2) through (4), V.A.C.C.P., the plurality finds the error harmless under Tex. R.App.Pro., Rule 81(b)(2). In order to do so, the plurality must plow under recently-settled easelaw on the scope and applicability of the harmless error rule.
On its face, Article 26.13 applies to any plea of guilty, including a guilty plea to a capital murder indictment. This is odd, since the admonishments in Article 26.13(a)(2) and (3) clearly have no application in a capital case. I would hold that to give the admonishment required by the plain language of Article 26.13(a)(2) and (3) in a capital ease would reap a truly absurd result, viz: to mandate informing a capital defendant of certain “facts” that simply are not accurate. Because the plain meaning is absurd, we may consult other indicia of legislative intent. *948See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). Because I cannot imagine the Legislature intended for the trial court to “admonish” a capital defendant with irrelevancies to assure the voluntary and knowing character of his guilty plea, I would simply hold that the admonishments of Article 26.13(a)(2) and (3) do not apply in taking a capital guilty plea. For that reason the trial court did not err in failing to admonish appellant under those provisions.
It is far less clear that the deportation admonishment of Article 26.13(a)(4) does not apply in a capital case. It is perhaps for this reason that the plurality is content to call the trial court’s failure to give the admonishment error, but harmless beyond a reasonable doubt under Rule 81(b)(2). In my view, however, the plurality errs to apply that rule.
It is true that under Article 26.13(c), substantial compliance with the admonishment requirements of Article 26.13(a) will suffice unless a defendant can show he was unaware of the consequences of his plea and he was misled or harmed by the admonishment. Conversely, in Morales v. State, 872 S.W.2d 753 (Tex.Cr.App.1994), we held that failing to give the deportation admonishment altogether, because it did not amount to substantial compliance, was not subject to the Article 26.13(e) requirement that the defendant show harm. Morales did not expressly hold that failure to substantially comply with one of the Article 26.13(a) admonishments is subject to a Rule 81(b)(2) harmless error analysis— in fact, in Morales we did not address that question at all. For this reason, says the plurality today, Morales “does not preclude application of an 81(b)(2) analysis to the error under review.” Op. at 927.
However, we did affirm the court of appeals’ reversal of the conviction in Morales, even though the court of appeals had not conducted a harm analysis under Rule 81(b)(2). We affirmed that reversal without performing, remanding for, or even remotely alluding to the necessity of, an analysis for harm. This is not surprising, given that up to that time we had consistently identified failure at least substantially to comply with the admonishment requirements of Article 26.13(a) as error of a “fundamental” nature. Ex parte Cervantes, 762 S.W.2d 577 (Tex.Cr.App.1988); Ex parte McAtee, 599 S.W.2d 335 (Tex.Cr.App.1980). None of the opinions in Morales mentions Rule 81(b)(2) because it did not occur to any of us to apply a harm analysis, none ever having been applied before to the total failure to give any of the Article 26.13(a) admonishments.
In essence, we have treated complete failure to give the deportation admonishment under Article 26.13(a)(4) as error that is immune to a harm analysis because it is one of those “prophylactic rules of procedure designed, in most cases by the Legislature, to impose a uniform requirement where the fairness of a flexible rule is too uncertain.” Marin v. State, supra, at 281. The statute was plainly written so as “to assure that trial judges need never litigate the question of a person’s citizenship in order to determine whether he should be admonished under subdivision four.” Morales, supra, at 755 (Meyers, J., concurring). “Speculation about the possible effect of ignoring prophylactic procedural rules,” we observed in Marin, “is always a perverse and inappropriate application of the harmless error doctrine.” 851 S.W.2d at 281. Nevertheless the plurality decides today that error in failing to admonish on the possibility of deportation is subject to an analysis for harm under Rule 81(b)(2). By this the plurality only assures that the citizenship of a defendant is likely to be the subject of litigation in every guilty plea proceeding after all, since, as in this case, failure to admonish an American citizen will be deemed harmless. Thus the legislative intent is wholly thwarted.
Of course, in order to apply Rule 81(b)(2), and thus dispose of this pesky capital murder appeal with the desired result, viz: an affir-mance, the plurality must first “disavow” the rationale of a number of considered opinions decided in the last half dozen years, on full briefing, on petitions for discretionary review, in which the precise issue before the Court was the propriety of application of *949Rule 81(b)(2). Not only is the holding in Part III of Marin now in jeopardy, but so are the Court’s opinions in Warmowski v. State, 853 S.W.2d 575 (Tex.Cr.App.1993), Sodipo v. State, 815 S.W.2d 551 (Tex.Cr.App.1990) (Opinion on original submission), and Nunfio v. State, 808 S.W.2d 482 (Tex.Cr.App.1991), and no doubt others as well. The “case by case” harm analysis endorsed by the plurality today, Op. at 928, was expressly rejected in Marin and Warmowski, It is disconcerting to see how readily the Court will sacrifice its own settled precedent in order to avoid the public disapprobation that inevitably follows reversal of a capital murder conviction.
To such jurisprudential wavering, I also dissent.
. The plurality also relies on Tutor v. State, 599 S.W.2d 818 (Tex.Cr.App.1980), opinion at 930, a panel decision that was not subjected to rehearing by the En Banc Court. The majority opinion induced former Presiding Judge Onion to declare against “reach[ing] out and commend[ing] a procedure that would deprive a defendant of the right to enter his guilty plea before the jury,” and to caution that the case "should not be used as a vehicle for promoting one procedure for a defendant to enter his plea before the jury after the indictment is read when that plea is guilty or nolo contendré and another procedure when the plea is not guilty.” Id., at 820. Perhaps his protest explains why Tutor has yet to be cited as authority by this Court — until today, that is.
Moreover, subsequently in Shields v. State, 608 S.W.2d 924 (Tex.Cr.App.1980), also cited by the plurality at 930, former Presiding Judge Onion pointed out that Article 26.11 is in the chapter of the Code of Criminal Procedure prescribing an arraignment, its purpose and requisites. Therefore, he opined: "[Article 26.11] does not control directly the procedure in a guilty plea. Article 27.13 does.” Id., at 927. That Shields was a trial before the court does not detract from the lesson being taught, viz: An arraignment is a pretrial exercise performing discrete functions designed to set the stage, so to speak, for an ensuing trial. Once completed, the arraignment becomes functus officio; a distinctly different set of procedural requisites dictate conduct of the trial that follows, including particularly that the accused must enter a plea before the factfinder— in this cause, the jury. E.g., Williams and Holland, supra.
. It is true that in Morin v. State, supra, we remarked that “the defendant is not deprived of a trial by jury when a verdict is directed pursuant to a guilty plea since the jury receives evidence at the punishment stage and must determine whether the defendant is to receive life imprisonment or the death penalty." Id., at 269. This remark seems to signify a belief that the fact that the jury is instructed to return a guilty verdict does not adversely impact a capital defendant's right to jury trial because the jury still answers special issues. As such, it stands as better authority than Williams and Holland for what the plurality holds today. But the Court’s remark in Morin is sans citation to supporting authority, and seems to be unmindful of the Court's earlier holding in Bullard that the constitutional right to trial by jury does not embrace the right to jury determination of punishment issues. Enjoyment of a jury determination during a phase of trial at which he is not constitutionally entitled to one cannot satisfy a criminal defendant’s right to trial by jury during a phase at which he clearly is.
. In this event it becomes the duty of the trial court to withdraw the guilty plea, enter a plea of not guilty on behalf of the defendant, and proceed to trial on the issue of his guilt or innocence. Fairfield, supra, at 777-778, quoting Taylor v. State, 88 Tex.Cr.R. 470, 483, 227 S.W. 679, 686 (1918) (Opinion on motion for rehearing).