dissenting.
The majority grants relief and holds that in a case where a capital offense is charged a defendant cannot waive a trial by jury after the State waives the death penalty.1
V.T.C.A., Penal Code, Section 12.31(a), provides that the punishment for a conviction for capital murder under V.T.C.A., Penal Code, Section 19.03, is limited to either life imprisonment or death. Death, however, is the permissible punishment only if the jury answers “yes” to the questions set out in Article 37.071, V.A.C.C.P. In addition, Article 1.14, V.A.C.C.P., states that a defendant accused of capital murder may not waive his right to a jury.
Appellant relies on Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), for the proposition that the State may not waive the death penalty in a capital case.
Under the “category of cases” view, the five acts delineated as capital crimes are by their nature capital offenses regardless of whether the death penalty is to be imposed. Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977); Batten v. State, supra. This reasoning, however, does not compel us to hold that the State may not waive the death penalty in a prosecution under V.T.C.A., Penal Code, Section 19.03, and no statute requires such a ruling.
The present Texas statutes relating to capital cases were passed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and were an attempt by the Legislature to alleviate the constitutional infirmities of our former law, the most significant of which appeared to be unbridled discretion. This was also the reasoning behind the dictum in Batten v. State, supra. See Crump, Capital Murder in Texas, 14 Houston L.Rev. 531 (1977).
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), which was decided after Batten, the Supreme Court of the United States clarified its views on prosecutorial discretion. The defendant argued that the Georgia capital murder statute was unconstitutional because the prosecutor had “unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them.” He also complained of the jury’s ability to convict only for a lesser included offense and the governor’s authority to commute the sentence. In answering these contentions the Supreme Court wrote:
*368“In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there has been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.
“Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).”
It is, therefore, apparent that to hold that the State may not waive the death penalty in a capital case is to deny both the State and the defendant the ability to plea bargain in an appropriate case. Such a restriction was condemned in Gregg. The law has changed since Batten was written. A contrary holding would not only render our entire capital punishment system constitutionally suspect but would also require a determination of at what point in the innumerable steps of the criminal justice system does a case become a capital offense and could conceivably restrict the State’s ability to accept a plea to a lesser included offense.
The State should be able to waive the death penalty while retaining the capital feature of offense, it logically follows that it is appropriate for a trial court to accept a plea of guilty in such a case and impose a life sentence.
The question presented, however, is whether this guilty plea may be accepted by the trial judge without impaneling a jury.
In Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), the defendant was stipulated to have been sixteen (16) years of age on the date of the offense and, therefore, could not be sentenced to death under V.T.C.A., Penal Code, Section 8.07(d). After returning a verdict of guilty, the trial jury was dismissed and the court assessed punishment at life imprisonment. In affirming the conviction we said:
“While a jury is ordinarily required in all capital murder cases at the ‘sentencing proceeding’ by virtue of the provisions of Article 37.071, [and Article 1.14] the very purpose of the jury at such stage of bifurcated trial is to answer the special issues submitted to them. Dependent upon the answers, the court then, not the jury, assess[ed] the punishment. However, in the instant case it would be irrelevant what evidence would have been offered or how the jury answered the issues submitted because the only permissible punishment was imprisonment for life. 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 a result.”
We have held that an accused has no constitutional right to have a jury assess punishment. See Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972).
To require that a jury be impaneled for the sole purpose of receiving the defendant’s guilty plea is a time consuming, expensive and useless thing unintended by the Legislature. A plea of guilty to the court rather than the jury does not render the plea less credible. Since the death penalty was not being sought, the court could impose only one sentence, life. There, as in Allen, the function of the jury would be perfunctory at best.
Another factor in allowing the accused to plead before the court is to ensure the enforcement of the plea bargain. After hearing the defendant’s admission of guilt, a *369jury would be free to disregard the bargain and answer the questions under Article 37.-071 affirmatively, thereby tying the hands of both the prosecution and the court.
It is only where death is at stake or the defendant professes innocence that the procedural safeguards provided by Articles 1.14 and 37.071 and Section 12.31, supra, become imperative and essential for due process. No sentence of death may be carried out until after there has been an appeal to the Court of Criminal Appeals and one will not be affirmed unless the trial has been before a jury. See Article 37.071(f), V.A.C.C.P.
As noted above, the safeguards herein referred to were passed in response to Fur-man and have been modified by the decisions of this Court and the Supreme Court of the United States. In decreeing that a defendant may not waive his right to a jury in a capital case, the Legislature did not intend to do a useless thing. However, requiring a jury to be impaneled merely to accept the accused’s guilty plea and assess the only punishment sought would be useless indeed. Accordingly, in construing Articles 1.14 and 37.071, V.A.C.C.P., and V.T. C.A., Penal Code, Sections 19.03 and 12.31, we should hold that an accused may not waive his right to a jury trial in any capital felony case except where he agrees to plead guilty to the capital charge in return for a promise that the State will not seek the death penalty against him.
The majority relies upon Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). In that case the trial judge erroneously thought that the State had waived the death penalty by not filing a written notice that it would seek the death penalty. The court refused separate voir dire examination of prospective jurors and denied fifteen peremptory challenges granted each party in a capital case under Article 35.15, V.A.C.C.P. The only instruction on punishment was for the jury to assess it at life.
The Court in Batten held that there was a “category of cases” view and the mandatory procedure had to be followed, and that the State cannot waive the death penalty and that a defendant in a capital murder case cannot waive a jury.
There is no reason for such a rule because a defendant cannot be assessed the death penalty when a jury has been waived. Allowing the waiver of the death penalty is beneficial to a defendant. It takes away the possibility that he could be executed for the offense. The Batten case should be overruled. As Justice Brandéis said in DiSanto v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524 (1927), “The logic of words should yield to the logic of realities.”
Since appellant did plead guilty voluntarily and his punishment was assessed at life, his contention should be overruled.
The relief sought should be denied.
ODOM and W. C. DAVIS, JJ., join in this dissent.. See Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977), for a summary of the facts of the offense.