dissenting.
In Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), a defendant was indicted for capital murder committed while he was a juvenile. V.T.C.A. Penal Code, Section 8.07, prohibited the execution of a person if that person committed the offense before he was seventeen. Therefore, the death penalty could not have been inflicted. After the defendant was found guilty by a jury of capital murder, the trial court discharged the jury and assessed punishment at life in the Texas Department of Corrections, in obvious contravention of Article 37.071, V.A.C.C.P. This Court held that *745there was no reversible error in discharging the jury and having the court assess punishment, saying:
“While a jury is ordinarily required in all capital murder cases at the ‘sentencing proceeding’ by virtue of the provisions of Article 37.071, supra, the very purpose of the jury at such stage of the bifurcated trial is to answer the special issues submitted to them.” Allen v. State, supra, at 846 (Emphasis supplied)
In concluding that the failure to follow the statutory mandate requiring a jury to answer the Article 37.071 questions at the punishment stage of a capital murder trial was not per se reversible, the Court in Allen said:
“To hold that a jury was required to hear evidence and answer special issues in the instant case would be to require a useless thing. The law does not require a useless thing to be done. We do not believe the Legislature intended such result.”1 Allen v. State, supra, at 846.
Obviously, therefore, not every instance of the trial court assessing punishment in a capital case without the jury answering the Article 37.071 questions is reversible. The concurring opinion acknowledges that the trial court in Allen “did not err in excusing the jury at the penalty stage of the trial and assessing the punishment at life imprisonment.”
This case is distinguishable from the cases that the majority contends mandate that relief be granted. In neither Ex parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979), nor Ex parte Jackson, 606 S.W.2d 934 (Tex.Cr.App.1980), was the defendant convicted of capital murder by a jury. In both cases, the defendants pled guilty to the court in exchange for a life sentence. Both, therefore, gave up something that the Legislature, via Article 1.14, V.A.C.C.P., specifically said they could not. In those cases, a jury might have found them not guilty or guilty of a lesser included offense. However, they gave up that right to a jury determination. They sacrificed a right, albeit consensually, which the Legislature had prohibited them from yielding. It can be said then that they may have been “harmed” by their actions.
In the case at bar, however, twelve citizens had determined beyond a reasonable doubt that the applicant was guilty of capital murder. All procedural safeguards that must accompany a capital murder trial were apparently complied with. Compare, Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). In Batten, this Court held that it was error to allow the State to waive the death penalty in a capital case and not have the jury answer the Article 37.071 questions, but this Court did not stop there. It said that the next issue was whether the error was harmful to the defendant. Since, in that case, the defendant was denied individual voir dire and denied fifteen peremptory challenges, she was harmed and the case was reversed. The trial court in Batten did not comply with Article 37.071, supra, and the jury did not answer the Article 37.071 questions. This Court required the defendant to show harm before reversing the cause.
Here, after the verdict of guilty was returned, only two punishments were possible, death or life in prison. Bailey received the lightest possible penalty and he consented to the proceedings. How was Oliver Bailey harmed by his allowing the trial court to assess punishment?
In 24A C.J.S. Criminal Law § 1887, page 872 (1962), it says:
“It is a rule of practically universal application in appellate procedure that accused cannot avail himself of error as a ground for reversal where the error has not been prejudicial to him.”
See also Lacy v. State, 424 S.W.2d 929 (Tex.Cr.App.1968), holding that absent injury to a defendant a case will not be reversed.
*746In McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975), the trial court allowed the State to introduce a prior conviction at the punishment hearing and erroneously denied the defendant the right to show a subsequent order setting aside the sentence. This Court held that such action by the trial court violated Article 38.24, V.A.C.C.P. However, since the defendant received the minimum possible punishment, the case was not reversed because the defendant had not been harmed.
Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980), was a capital case in which life in prison was the punishment assessed. The defendant complained of an alleged error in the admission of certain evidence in the punishment phase of the trial. The Court stated: “Suffice it to say that any grounds of error relating to the punishment stage need not be considered when an appellant receives the most favorable verdict possible.” 593 S.W.2d at 716. In Phelps v. State, 594 S.W.2d 434 (Tex.Cr.App.1980), this Court also held that a case would not be reversed for errors committed during the punishment phase of a capital murder trial if the defendant received life in prison. See also, Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980).
Eads v. State, 598 S.W.2d 304 (Tex.Cr.App.1980), cited by the majority, was a panel decision of this Court. No motion for leave to file a motion for rehearing was made. It has never been cited as authority before today. It failed to address the case of Allen v. State, supra.
However, Eads can be distinguished from the case before us. In Eads, the case was submitted to the jury at punishment and the jury failed to reach a verdict after deliberating. Eads said that the trial court erred in then discharging the jury and assessing a punishment of life in the Texas Department of Corrections. Eads was based on Article 37.07, Section 3 c, V.A.C. C.P., providing that where punishment is referred to the jury, if the jury fails to agree on a punishment, a mistrial is to be declared. The defendant in Eads objected to the discharge of the jury and assessment of punishment by the court. Here, applicant consented to the procedure used and the matter of punishment was never referred to the jury. Therefore, Article 37.07, Section 3 c, V.A.C.C.P., is not applicable.
The concurring opinion has devoted much effort toward protecting the bench and bar from being misled by this dissent. If the bench and bar are, in fact, misled, it occurred, not today, but on February 25,1976, with the opinion in Batten v. State, supra, and again on June 29, 1977, with the opinion of Allen v. State, supra. It is satisfying that the bench and bar can now relax in the assurance of knowing what was really meant in those two opinions.
Since Allen v. State, supra, and Batten v. State, supra, hold that failure to follow 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.
ODOM and W. C. DAVIS, JJ., concur in this dissent.. Nor do I believe that the Legislature intended such a result as the one reached by the majority today.