OPINION
ONION, Presiding Judge.These proceedings involve a post-conviction application for writ of habeas corpus under Article 11.07, V.A.C.C.P.
On April 30, 1975 the petitioner pled guilty to the indictment charging that he, acting together with Clifford S. Blansett, killed the deceased, Danny Gray, by shooting him with a gun, knowing and being informed that Gray was a peace officer. He waived trial by jury. Punishment was assessed by the court of life imprisonment. Apparently the State had entered a plea bargain to waive the death penalty.1
The real thrust of his argument is that in a capital murder case an accused cannot waive trial by jury and the State may not waive the death penalty.
Article 1.14, V.A.C.C.P., provides:
“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of tria] by jury in a capital felony case.” (Emphasis supplied.)
V.T.C.A., Penal Code, § 19.03, defines capital murder and provides in part:
“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
“(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
“(2) * * *
“(b) An offense under this section is a capital felony.
“(c) If the jury does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.” (Emphasis supplied.)
V.T.C.A., Penal Code, § 12.31, provides:
“(a) An individual adjudged guilty of a capital felony shall be punished by confinement in the Texas Department of Corrections for life or by death.
“(b) Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”
It is clear from a study of the Penal Code that capital murder is the only capital felony provided by such code. In the Practice Commentary to said § 19.03 it is written:
“Section 19.03 is a separate offense, punishable by a mandatory sentence of death or life imprisonment, see Section *36612.31, and once an indictment is presented for capital murder the prosecutor may not waive the death penalty as he could under C.C.P. art. 1.14 before that article was amended by the Capital Felony Act of 1973. The offense’s mandatory nature is the first of the constitutional bases touched by the legislature in recognition of the fact that three of the majority in Furman2 objected to the death penalty essentially because of its discretionary application.”
In Batten v. State, 533 S.W.2d 788 (Tex. Cr.App.1976), this court was confronted with an unusual fact situation. The trial judge took the position in that case that since the State had not filed a written notice that it would seek the death penalty within certain time limits the State had waived the death penalty. Overlooked was the fact that the statute on which the court relied had been amended and there was no longer such a requirement. The trial court ordered the trial to proceed as a capital murder trial but instructed the jury that the only possible penalty was life imprisonment. The trial court refused the defendant the procedures applicable to the trial of a capital felony case. The court refused the request for separate voir dire examination of the jurors and denied the defendant the fifteen peremptory challenges granted each party in a capital case under Article 35.-15(a), V.A.C.C.P. Upon a finding of guilt, the court did not submit the special issues required by Article 37.071, V.A.C.C.P., but simply instructed the jury to assess life.
In Batten we held that the trial court erred in holding that the State had waived the death penalty and in limiting the number of peremptory challenges, etc., but then had to decide whether the error was reversible.
In Batten we stated:
“We agree that in the wake of Furman the Legislature has adopted a ‘category of cases’ view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved, and that it is not possible to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason the Legislature mandated the procedure to be used in capital murder cases. Under the statutory scheme adopted, the State may not waive the death penalty, but even in cases such as the instant one where such waiver has been improperly permitted, the capital case procedures, including the right to fifteen peremptory challenges, are still applicable even though the only possible penalty under the circumstances would be life imprisonment.” 3
It is clear from what has been said that the State cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury.4
*367The relief prayed for is granted, and petitioner is remanded to the custody of the Sheriff of Harris County to answer the indictment in Cause No. 225031 in the 182nd District Court.
It is so ordered.
. The case was heard in the 182nd District Court of Harris County following a change of venue from Orange County.
. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
. Nothing in Batten held that the State could not reduce a charge of capital murder to any lesser included offense, such as murder with its wide range of penalties. See V.T.C.A. Penal Code, §§ 19.02 and 12.32.
. The dissent cites Alien v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), which distinguished Batten and which is distinguishable from the instant case. In Alien the defendant was sixteen years old at the time of the capital murder offense and could not be given the death penalty under V.T.C.A., Penal Code, § 8.07(d). He was certified for trial as an adult. He was given a jury trial on his not guilty plea with the capital felony procedures being followed at the guilt stage, such as being permitted fifteen peremptory challenges and allowed separate and
individual examination of the prospective jurors. He was not accorded a jury trial at the penalty stage of the trial because there was only one penalty — life imprisonment, and the jury’s answers to the special issues under Article 37.071, V.A.C.C.P., would not have affected the penalty regardless of what they were, and because the law does not require a useless thing. Death was not a possible penalty because of the statute relating to Allen’s age at the time of the offense, not because the death penalty was waived by the State, as in the instant case. He was accorded a jury trial and not permitted to waive trial by jury as in the instant case. He was permitted capital felony procedures where the appellant was not. Alien clearly is not controlling.
The dissent also misreads the Batten decision and the reasoning behind such decision.