concurring.
The question presented by this Article 11.07, V.A.C.C.P., proceeding is whether a defendant in a capital murder case may, at the penalty stage of the bifurcated trial, waive trial by jury and permit the trial court to assess punishment. Necessarily included are questions of the right of the State to waive the death penalty, and of the authority of the trial court to assess punishment, if such waiver by the State is not proper and death is still a viable penalty.
The trial court’s findings reflect that the applicant was indicted for capital murder on March 7, 1974, the offense being alleged to have occurred on or about February 22, 1974. On May 3, 1974, the applicant was found guilty of capital murder by a jury at the guilt stage of the trial. According to the trial court’s findings, applicant’s attorneys, prior to the penalty stage of the trial, “withdrew their request to go to the jury for punishment on the agreement of the State and on the Court’s guarantee to assess life imprisonment.”
The docket sheet supports only the finding that the petitioner moved to withdraw the punishment issue from the jury. The judgment reflects the verdict of guilty and that the court assessed punishment at life imprisonment for capital murder. Sentence was imposed. No appeal was taken.
Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977), discussed at length the fact that a defendant in a criminal case has no constitutional right to trial by jury on the issue of punishment, but noted our statutory capital murder scheme was different. There this court wrote:
“Under this statutory scheme there must nearly always be a jury at the penalty stage of every capital murder case. See Article 37.071, Vernon’s Ann.C.C.P. It is a right that cannot be waived. See Article 1.14, Vernon’s Ann.C.C.P.; Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643 (1956), cert. den. 351 U.S. 975, 76 S.Ct. 1042, 100 L.Ed. 1492 (1956).”
*743It is now well established that a defendant in a capital murder case cannot validly waive trial by jury. Articles 1.14, V.A.C. C.P.,1 and 37.071, V.A.C.C.P.; V.T.C.A., Penal Code, §§ 19.03 and 12.31; Bullard v. State, supra; Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979); Eads v. State, 598 S.W.2d 304, 307 (Tex.Cr.App.1980); Ex parte Jackson, 606 S.W.2d 934 (Tex.Cr.App.1980). And this rule would apply regardless of the time of the attempted waiver. Further, in such cases the State cannot waive the death penalty. Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976); Ex parte Dowden, supra; Ex parte Jackson, supra.
It is also clear from our statutory capital murder scheme (V.T.C.A., Penal Code, §§ 19.03 and 12.02; Articles 1.14 and 37.-071, V.A.C.C.P.) that it was the intention of the Legislature that a judge would not be permitted to assess the death penalty.
Thus, even if it could be said that the applicant waived trial by jury,2 the State could not waive the death penalty and the trial judge would be without authority to assess punishment. See and cf. Jones v. State, 416 S.W.2d 412 (Tex.Cr.App.1967).3
For the reasons stated, I concur.
The dissenting opinion appears to view the question presented as a failure to follow the provisions of Article 37.071, supra, rather than a question of the right to waive trial by jury.
I write further because the dissenting opinion misconstrues and mischaracterizes Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), and Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), which this writer authored for the court.
The dissent concludes:
“Since Allen v. State, supra, and Batten v. State, supra, hold that failure to *744follow Article 37.071, supra, will not result in a reversal absent harm to the defendant and since the applicant was not harmed and consented to the procedure, I must dissent.”
Since Allen and Batten did not so hold, the bench and the bar should not be misled.
Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), held that V.T.C.A., Penal Code, § 8.07,4 had to be read with §§ 19.03, 12.-31(a), and Articles 37.071 and 1.14, V.A.C. C.P., and that where the undisputed evidence shows that the defendant was under seventeen years at the time of the offense the death penalty could not be imposed. There the trial court did not err in excusing the jury at the penalty stage of the trial and assessing the punishment at life imprisonment since that was the only punishment that could have been assessed under the circumstances as the punishment became fixed by law.
The case did not discuss the need for the defendant to show harm for failure to follow Article 37.071, V.A.C.C.P.
In Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), an adult defendant was charged with capital murder. Prior to trial the court took the position the State had waived the death penalty since it had not filed written notice it would seek the death penalty, relying upon the provisions of Article 1.14, V.A.C.C.P. Such statute had previously been amended in 1973 to eliminate the requirement of such written notice. The trial court was in error. Since the court no longer considered death a possible punishment, it refused to permit the defendant to exercise 15 peremptory challenges as to prospective jurors as permitted in capital cases or to voir dire the prospective jurors individually separate and apart from the entire panel.
The court held that in enacting the capital murder procedure scheme the Legislature had adopted a category of cases view rather than a penalty view of the offense and that even if the death penalty was eliminated (although in error) the defendant was still entitled to the 15 peremptory challenges and to separate individual voir dire examination of prospective jurors, and the trial court was in error in refusing such procedures. The failure to follow Article 37.071, V.A.C.C.P., was not the basis for the reversal.
The dissent also attempts to disparage Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980). It states that Eads was (1) a panel decision where (2) no motion for leave to file a motion for rehearing was made, and that (3) it had never been cited as authority. I did not know before today that any of these things disqualified a signed opinion of this court from being considered as an authority. The dissent also faults Eads for failing to address Allen. Eads dealt with the acceptance of an incomplete verdict, and Allen dealt with a punishment fixed by law and assessed by the court because the defendant was under seventeen years of age at the time of the offense. It was for these reasons Allen was not mentioned or cited in Eads, both of which opinions were authored by this writer for the court.
I concur in the result reached by the majority and decry the dissent’s approach.
TOM G. DAVIS and TEAGUE, JJ., join in this opinion.. Article 1.14, supra, reads:
“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.” (Acts 1973, 63rd Leg., p. 1127, ch. 426, Art. 3, § 5, eff. June 14, 1973.)
. There was certainly no written jury waiver. Cf. Article 1.13, V.A.C.C.P., applicable to felony cases less than capital.
. After the adoption of the capital murder procedure by the Legislature, some confusion arose when dealing with the possibility of a plea bargain in a capital murder case.
In the concurring opinion in Ex parte Jackson, supra, it was observed that prior to the 1973 amendment (Acts 1973, 63rd Leg., p. 1127, ch. 426, Art. 3, § 5, eff. June 14, 1973) to Article 1.14, V.A.C.C.P., such statute expressly provided that where the State did not seek the death penalty that the defendant could waive trial by jury and the death penalty could not be imposed. Such opinion then stated:
“The language deleted from Art. 1.14, supra, by the 1973 amendment did expressly allow waiver of a jury when the death penalty was not sought. By removing that provision of the prior law and enacting the current version of Art. 1.14 in absolute terms as part of the present capital felony statutory scheme, the legislature expressed a clear intent to abolish the prior practice that cannot be denied.”
The opinion then suggested that the Legislature may wish to again amend Article 1.14, supra, and permit plea bargaining in capital felony cases. This has not yet been done. This may be due in part to the recourses open to the parties in a capital murder case where there is agreement that the proper punishment under the facts should be life imprisonment rather than death.
The offense of capital murder, however, may be reduced by the State with the approval of the trial court to the lesser included offense of murder (V.T.C.A., Penal Code, § 19.02). Then the defendant may waive trial by jury, enter a guilty plea, and the plea bargain of life imprisonment may be imposed (V.T.C.A., Penal Code, § 12.32). See Ex parte McClelland, 588 S.W.2d 957 (Tex.Cr.App. 1979). See also Ex parte Dowden, supra, footnote # 3; Ex parte Jackson, supra, footnote # 1.
Further, the State is not precluded from dismissing a capital murder indictment in order to proceed on an indictment or felony information for the lesser included offense of murder. Thereafter, a valid plea bargain can be struck between the State and the defendant that the defendant enter a guilty or nolo contendere plea for the State’s recommendation of life imprisonment to the court for murder after waiver of trial by jury. See concurring opinion, Ex parte Dowden, 580 S.W.2d 364, 367 (Tex.Cr. App.1979).
(Said concurring opinion stated: “Under any present capital felony scheme, this is the only possible way the State could have entered into a plea bargain such as the one sought in the present case.” In this the concurring opinion was in error. See Ex parte McClelland, supra.)
. Said § 8.07(e) at the time of Allen’s trial (now . § 8.07(d), provided:
“No person may, in any case, be punished by death for an offense committed while he was younger than 17 years.”