concurring.
The issue in this appeal is a question of statutory interpretation. Specifically, does Article 44.29(b) give a criminal defendant the right to change a prior election to have a jury determine punishment and instead have punishment determined by the trial court. Because I do not construe this Article as an independent grant of the right to change a prior election to have a jury determine punishment, I would hold that the trial court did not commit error by requiring the defendant’s punishment be determined by a jury.
RELEVANT PROCEDURAL BACKGROUND
Allen Wayne Johnson was convicted of delivery of a controlled substance. Pursuant to his valid election, punishment was determined by the jury. Punishment was assessed at 75 years in prison. The punishment was ultimately set aside by a fed*930eral court on a writ of habeas corpus due to improper argument. A new trial on punishment was ordered. Johnson wanted the new trial on punishment to be before the trial court rather than a jury. The state objected to changing from jury determination to trial court determination of punishment. The trial court rejected Johnson’s request for court assessment of punishment and empaneled a jury. The jury assessed Johnson’s punishment at life in prison.
APPLICABLE LAW
There are two portions of the Code of Criminal Procedure potentially relevant to the issue before this Court. Article 37.07 provides:.
Art. 37.07. Verdict must be general; separate hearing on proper punishment
Sec. 2. (a) In all criminal cases, other than : misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.
(b) Except as provided in Article 37.071 [related to death penalty convictions], if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; -provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury, except as provided in Article 44.29. If a finding of guilty is returned, the defendant may, with the- consent of the attorney for the state, change his election of one who assesses the punishment.
Tex.Code Crim. Proc. Ann. art. 37.07 (Vernon Supp.1999). The other potentially relevant article of the Code of Criminal Procedure provides as follows:
Art. 44.29. Effect of reversal
(b) If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant other than a defendant convicted of an offense under Section 19.03, Penal Code, only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial under Subsection (b), Section 2, Article 37.07, of this code. If the defendant elects, the court shall empanel a jury for the .sentencing stage of the trial in the same manner as a jury is empaneled by the court for other trials before the court. At the new trial, the court shall allow both the state and the defendant to introduce evidence to show the circumstances of the offense and other evidence as permitted by Section 3 of Article 37.07 of this code.
Tex.Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp.1999).
These two provisions must be analyzed together since they each refer to the other by their express terms. A principle objective when construing a statute is to determine the legislature’s intent. Ex parte Jones, 957 S.W.2d 849, 850 (Tex.Crim.App.1997). The reviewing court should first examine the language of the statute and determine if the intent can be determined from the plain meaning of the words used. Only if the plain meaning of the words used leaves the intent of the legislature in doubt, does the court resort to alternative means of determining legislative intent. See Ex parte Evans, 964 S.W.2d 643, 646 (Tex.Crim.App.1998).
The right to have a jury trial on guilt/innocence is guaranteed by the United *931States and Texas constitutions. U.S. Const. amend VI; Tex. Const. art. 1, § 10. There is no corresponding right to have punishment determined by a jury. Nor is there an absolute right, statutory or otherwise, to have punishment set by the trial court. Who imposes punishment is controlled primarily by statute. State ex rel. Turner v. McDonald, 676 S.W.2d 371, 373 (Tex.Crim.App.1984). Thus, before a complaint about the one who imposed punishment can be sustained, the defendant must show a statutory or other right to have punishment assessed by someone else or that due process was violated by having punishment assessed in the manner that it was.
The record before us does not disclose the basis upon which Johnson’s punishment was assessed by the jury in the first trial. It had to be as a result of some affirmative action that he took. Pursuant to article 37.07(2)(b), the court would have determined punishment unless Johnson either filed a sworn motion for probation or an election to have the jury determine punishment. Tex.Code Crim. Proc. Ann. art. 37.07(2)(b) (Vernon Supp.1999). The State’s brief states that Johnson filed an election to have punishment assessed by the jury pursuant to Article 37.07(2)(b).1 This factual statement is not contested by Johnson.
Thus, immediately after Johnson’s application for writ of habeas corpus was granted he stood convicted of delivery of a controlled substance, was awaiting a determination of punishment and had filed an election to have punishment assessed by the jury. The case was in this procedural posture when Johnson attempted to change his prior election to have the jury assess punishment by filing an election to have the trial court determine punishment, and a motion to preclude the State from requesting a jury determination of punishment. In this procedural posture the trial court need look no further than the express language of Article 37.07(2)(b) to determine that for the defendant to change the election of who would determine punishment after a finding of guilty, the State must consent. Id. To alter this result the defendant must show some other source of his right to change his election.
In this case, Johnson points to article 44.29 of the Code of Criminal Procedure. TexCode Crim. Proo. Ann. art. 44.29(b) (Vernon Supp.1999). This article does not resolve the question in Johnson’s situation. First, by its express terms article 44.29 only applies if a court of appeals or the Court of Criminal Appeals awards a new trial on punishment to a defendant on the basis of an error or errors made in the punishment stage of the trial. Id. Johnson’s new trial on punishment is the result of the United States Court of Appeals for the Fifth District affirming the federal district court’s grant of his application for a writ of habeas corpus. Article 44.29 does not apply.
Even if article 44.29 applies to Johnson’s situation, it is not a grant of a right to change his prior election of having the jury determine punishment to now require punishment to be determined by the trial court. If article 44.29 operated as a totally new and independent opportunity for a defendant to choose who would determine punishment, there would be no need to refer back to article 37.07(2)(b). See Id. This reference would be totally unnecessary if the defendant can elect to have either the jury or trial court determine punishment on a new trial of punishment only. We must reconcile the language of both statutes to give them meaning and not construe one so that it eliminates the need for the other, particularly when the other statute is specifically referenced.
Article 44.29, provides that “if the defendant elects, the court shall empanel a jury ...” Id. Johnson had so elected and therefore the trial court was under a statutory duty to empanel a jury to determine punishment. After his determination of guilt, *932Johnson was attempting to change his pri- or election. Article 44.29 does not address the timing of the election with good reason. By its reference back to article 37.07(2)(b), the timing of the defendant’s election impacts other provisions of the statute. If there was a valid election to have the jury determine punishment prior to a determination of guilt, that election is still in full force and effect. The defendant need not renew his election for a jury determination of guilt if that election was previously made. However, if that election had not been previously made, the defendant can still utilize the provisions of Article 37.07(2)(b) to change who will determine punishment. But, when the defendant is trying to change his prior decision of who will assess punishment after a verdict of guilty has been returned, as in the situation before this court, article 37.07(2)(b) requires that the state must consent to the change. Tex.Code Crim. Proc. ANN. art. 37.07(2)(b) (Vernon Supp. 1999).
Further, as specifically applied to this case, Johnson is trying to elect to have the trial court determine punishment, not the jury. Thus, his attempt to “elect” to have the trial court determine punishment is not specifically covered by the language “if the defendant elects, the court shall empanel a jury for the sentencing stage ...” Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp.1999). This provision obviously means that if the defendant had previously elected to have the jury determine punishment, or if after the verdict of guilty the defendant elects to have the jury determine punishment rather than the trial court and the State consents to that change, then the trial court will empanel a jury in the same manner as a jury is empaneled for other trials.
Johnson (and the majority opinion) relies heavily on dicta in Saldana v. State, 826 S.W.2d 948 (Tex.Crim.App.1992) construing article 44.29 to grant the defendant the right to elect between having a jury or the trial court determine punishment in a new trial for punishment. Saldana held that article 44.29 granted a defendant who had pleaded guilty, and thus did not initially have the right to elect to have a jury determine punishment, the right to elect a jury determination of punishment in a new punishment trial. Id. at 951. If that issue were presented to this court, the holding of the Court of Criminal Appeals would be binding precedent. However, Johnson’s situation is distinguishable for several reasons. First, Johnson had previously elected to have the jury make the determination of punishment and he now seeks to change that election. Saldana was seeking to have the jury assess punishment rather than the trial court. Secondly, Saldana had never made an election because he pleaded guilty to multiple counts, some of which were reversed by the federal district court on his writ of habeas corpus as affirmed in part by the United States Fifth District Court of Appeals, thus requiring a new determination of punishment. There is no reason to extend Saldana holding to other situations not clearly controlled by its facts and holding.
CONCLUSION
For the foregoing reasons I would hold that the trial court did not err when he refused to grant Johnson’s request to change his prior election of having the jury determine punishment without the state’s consent after the return of a guilty verdict. I would affirm the conviction, without the necessity of conducting a harm analysis as has been done by the majority. Accordingly, I concur in the judgment affirming the judgment of the trial court.
. The State makes numerous references to the transcript (now clerk’s record) from the original proceeding. That record is not before us on this appeal.