dissenting.
In appellant’s first ground of error he contends the trial court erred in requiring him to file his election on punishment prior to voir dire of the jury panel.
Although criminal defendants have no constitutional right to have the jury assess punishment, such a right has been afforded an accused under article 37.07 of the Texas Code of Criminal Procedure. Tinney v. State, 578 S.W.2d 137 (Tex.Cr.App.1979). Article 37.07(b) states:
Except as provided in article 37.071 [capital cases] if a finding of guilty is returned, it shall be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that ... (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury.
The phrase “at the time he enters his plea in open court” has been interpreted to mean at the time the defendant makes his plea to the indictment before the jury. Toney v. State, 586 S.W.2d 856 (Tex.Cr.App.1979). Therefore, it is the general rule that a defendant has up until that time to make his election as to whom he wishes to assess punishment. This court has recognized the foregoing rule in Pace v. State, 630 S.W.2d 765 (Tex.App.—Houston [1st Dist.] 1982, no pet.).
An exception to this rule was recently articulated in Ceaser v. State, 624 S.W.2d 669 (Tex.App.—Beaumont, 1981, no pet.), in which the Beaumont Court sustained the trial court’s requirement that a defendant file all of his pleadings, including his election to have the jury assess punishment, during a pre-trial hearing conducted in accordance with article 28.01 Tex.Code Crim. Pro. (Vernon 1974). Although I question the logic of requiring the filing of an election at a pre-trial hearing, the purpose of which is the judicial determination of contested issues, I need not address the rationale behind that decision here. In the case at bar, the court heard numerous motions prior to trial. However, this hearing did not meet the formal requirements set forth in article 28.01, and as such was not a formal pre-trial hearing. The relevant portions of that provision state:
Section 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pretrial proceeding. The pre-trial hearing shall be to determine any of the following matters:
(2) Pleadings of the defendant:
Section 2. When a criminal case is set for such pre-trial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. The record made at such pre-trial hearing, the rulings of the court and the exceptions and objections thereto shall become a part of the trial record of the case upon its merits, (emphasis added)
The record does not show that the defendant was given the required notice. In fact, there is no evidence that the defendant was given any notice whatsoever that a formal pre-trial hearing would be held, and that he would be required to file all of his motions, including his election, at that time. Therefore, this cause does not fall within the *557Ceaser exception and should be controlled by the mandate of Article 37.07(2)(b), supra.
The reason for the rule and the pronouncement by the Court of Criminal Appeals in Toney, supra, is to afford the defendant in a criminal case the opportunity to see, examine and strike the jurors prior to having to make an election as to whether the jury or the judge shall assess punishment. This is a valuable right for a defendant in all criminal causes and should not be curtailed by court decisions which place unwarranted restrictions and/or limitations thereupon.
I am personally convinced that the right to a jury trial is one of the most important rights that are available to a defendant in criminal law jurisprudence.
I am further convinced that Section 15 of Article 1, the Bill of Rights of the Texas Constitution, has set forth this right in explicit terms. “The right of trial by jury shall remain inviolate. The legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency... ” (emphasis added). Pursuant to this provision of the Texas Constitution, the State legislature enacted and passed Article 37.07 and Article 28.01 of the Texas Code of Criminal Procedure, to fully afford a defendant the right of trial by jury and the right to have his punishment assessed by a jury if the defendant so elects.
In the cause at bar, the appellant was not afforded this right to see, examine and strike the jurors, before he was required, by the judge’s order, to elect who would assess punishment. I feel that the judge prematurely compelled the defendant to file his election and thereby denied him his right to make an informed, intelligent election.
The appellant’s first ground of error should be sustained and the cause reversed and remanded for a new trial.
I concur with the majority’s holding on the remaining issues before the court.