dissenting.
Valid reasons why Ex parte Johnson, 697 S.W.2d 605 (Tex.Cr.App.1985), was wrongly decided are set forth in the several dissenting opinions therein, and to reprise them here would be redundant. Nevertheless, this proceeding presents an occasion for the Court to determine whether Article 37.10(b) may be gratuitously invoked and applied by this Court in a post conviction habeas proceeding in which a final judgment of conviction imposes a sentence based upon a verdict of a jury assessing punishment not authorized by law. The majority fails to address that question, so I will.
First of all, even if valid, on the face of it Article 37.10(b), V.A.C.C.P. has no application. Obviously focusing on Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983), the amendment directs “the appellate court” to reform a jury verdict. The only occasion for an “appellate court” to have jurisdiction to do so is on direct appeal from a judgment of conviction.
In a postconviction habeas corpus proceeding this Court may hear a cause “as though originally presented to [it] or as an appeal,” Article 11.07, § 3, V.A.C.C.P. Still, as has been often pointed out by the Court, a habeas corpus proceeding may not be used as a substitute for an appeal. Ex parte Powell, 558 S.W.2d 480, 481 (Tex.Cr.App.1977). A postconviction habeas application will not lie to correct errors qua errors committed in the trial court. The Court does not decide a habeas cause in its capacity as an “appellate court.”
Secondly, approaching Article 37.10, supra, from another direction, one notes that Article 11.07, V.A.C.C.P., provides that the procedure it outlines “shall be exclusive ...,” id., § 3. Thus, even if Article 37.10 is retrospective in the sense erroneously imputed to it in Ex parte Johnson, supra, *673the procedure it purports to authorize is excluded from a habeas corpus proceeding.
Thirdly, relief available in a habeas corpus proceeding to resolve problems of the nature presented here and in Ex parte Hernandez, 698 S.W.2d 670 (Tex.Cr.App., this day decided), has been explicated by this Court in, e.g., Ex parte Hunter, 616 S.W.2d 626 (Tex.Cr.App.1981) and Ex parte Brown, 575 S.W.2d 517 (Tex.Cr.App.1979). As stated in Brown, “the proper inquiry should be who assessed punishment,” for if applicant is entitled to any relief from punishment previously assessed, that which is ordered depends upon whether it had been assessed by judge or by jury. When assessed by a judge, the cause is remanded to the trial court for a hearing on punishment, e.g., Ex parte Hunter, 616 S.W.2d 626 (Tex.Cr.App.1981); when assessed by a jury, the cause is either dismissed if applicant has served requisite time or remanded to the trial court for a new trial, Ex parte Brown, supra.
Applicant is entitled to relief in this habe-as corpus proceeding. Because the majority denies it, I dissent.
ONION, P.J. and TEAGUE, J., join.