dissenting.
Judge Miller, in the dissenting opinion that he has filed in this cause, correctly points out the following: “Every once and a while a case comes along that demonstrates how far removed the thinking of this court can travel from the general perception of the legal community.” Also see Vol. 3, Texas Criminal Practice Guide, Section 74.01. This is one of those cases. In light of what occurred in the trial court, I am sure that members of the Bar who practice in Houston, either on occasion or full time, in light of how it has been done in the past, as to when a written election to have the punishment assessed must be filed, will find the majority opinion shocking and revolutionary, to say the least. And, contrary to Judge Miller’s hopes he expresses in his footnote 4, in light of the facts of this cause and what the majority opinion states and holds, I do not perceive that the amending legislation that involves Art. 37.07, V.A.C.C.P., will make a hill of beans.
On direct appeal, Kenneth Ray Postell, appellant, asserted that the trial judge erred by forcing him, over objection, to file his election on punishment after a pretrial hearing had been held, which was prior to his counsel’s voir dire examination of the jury panel and before he pled to the charging instrument in open court in the jury’s presence. The record nowhere reveals or reflects that the pretrial hearing that was held was conducted in accordance with the provisions of Art. 28.01, V.A.C.C.P., upon which the majority relies.
A panel majority opinion of the Houston (First) Court of Appeals, see Postell v. State, 663 S.W.2d 552 (Tex.App. — Houston [1st] 1983), erroneously rejected the appellant’s contention. Today, a majority of this Court puts its stamp of approval on that erroneous decision, and compounds its error by not properly discussing and resolving the several issues that are before us for review — in light of what occurred in the trial court. It does so by relying almost exclusively upon the Beaumont Court of Appeals decision of Ceasar v. State, 624 S.W.2d 669 (Tex.App. — Beaumont 1981), which held that when the trial court holds a pre-trial hearing in accordance with the provisions of Art. 28.01, V.A.C.C.P., the defendant may be required to file at that hearing all of his pleadings, including his election as to whether the jury or the trial judge will assess punishment at his *469upcoming trial in the event he is found guilty. Art. 27.02(7), V.A.C.C.P., provides that an election of the defendant as to punishment is one of the defendant’s “pleadings.” Ceasar, supra, also held that Art. 37.07, Sec. 2(b), supra, was only applicable when no pretrial hearing had been held in accordance with Art. 28.01, supra. It lastly held that there was no conflict between the provisions of Art. 28.01, supra, and Art. 37.07, Sec. 2(b), supra. I agree with the latter holding — in this instance.
In rejecting appellant’s contention, the majority panel decision of the Houston (First) Court of Appeals also relied upon Ceasar v. State, supra. The majority opinion of this Court relies almost exclusively upon Ceasar, supra, in rejecting appellant’s contention. In both instances, in light of what factually occurred in the trial court, the majority panel opinion of the court of appeals and the majority opinion of this Court are clearly erroneous.
I find, for the same correct reasons that Justice Bass stated in the dissenting opinion that he filed in Postell v. State, supra, that the majority of the panel of the Houston Court of Appeals and a majority of this Court were and are in error in relying upon Art. 28.01, supra, in rejecting appellant’s contention. Justice Bass stated the following in the opinion he filed: “The pretrial hearing [that was held] did not meet the formal requirements set forth in Article 28.01, and as such was not a formal pre-trial hearing. 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 [at that time] he would be required to file all of his motions, including his election [as to whether the trial judge or the jury would assess punishment]. Therefore, this cause does not fall within the Ceasar exception and should be controlled by the mandate of Article 37.-07(2)(b), V.A.C.C.P.” The record clearly supports what Justice Bass stated. Note what the trial judge stated into the record when one of appellant’s counsel made known that he did not want to make his election until after the jury had been selected: “The statute provides, as the Court understands it, Article 37.07 of the Texas Code of Criminal Procedure, section 2, sub-paragraph B provides that the Court shall assess punishment unless the defendant in writing elects prior to commencement of the trial that the jury assess the punishment. .. Unless you file your election at this time (which was prior to the voir dire examination of the jury and after a hearing had been held on the appellant’s pretrial motions) [t]here will be no way for the Court to know what counsel would be entitled to voir dire the jury on without that election being made prior to the voir dire examination ...” Cf. Toney v. State, 586 S.W.2d 856 (Tex.Cr.App.1979).
Unquestionably, had the trial judge properly invoked the provisions of Art. 28.01, supra, then that statute might control the issue before us. But, he didn’t. Art. 28.-01, supra, is as far removed from this case as Timbuktu is from Texas.
The author of the majority opinion in this cause does not discuss the applicability of Art. 37.07, supra, to this cause. He apparently has forgotten that in Pace v. State, (Tex.Cr.App., No. 170-82, October 19, 1983), this Court dismissed the State’s Petition for Discretionary Review, which had requested this Court to review the decision of Pace v. State, 630 S.W.2d 765 (Tex.App.—Houston [1st] 1982), a unanimous panel opinion from the very same court that decided the cause before us, which had held that an election was timely filed as long as it was filed before the accused pled to the charging instrument before the jury.
In the court of appeals decision of Pace v. State, supra, Justice Warren, who authored that opinion, stated the following:
The phrase ‘at the time he enters his plea in open court’ (as stated in art. 37.07, Sec. 2(b)) 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); Donald v. Jones, 445 F.2d 601 (5th Cir.1971).
*470Justice Whitham of the Dallas Court of Appeals, in the dissenting opinion he filed in Jones v. State, 644 S.W.2d 546, 552 (Tex.App.—Dallas 1982), also correctly pointed out the following:
The phrase “in open court” in this section (Art. 37.07, Sec. 2(b), supra,) has been interpreted to mean at the time a defendant makes his plea to the indictment before the jury. Donald v. Jones, 445 F.2d 601 (5th Cir.1971); Donald v. Decker, 318 F.Supp. 563 (N.D.Tex.1970); Toney v. State, 586 S.W.2d 856 (Tex.Cr.App.1979).
Justice Warren, in Pace v. State, supra, also correctly stated the following:
We hold that the filing of a written election to have the jury assess punishment immediately following the defendant’s plea before the jury, satisfies Art. 37.07, Sec. 2(b) and entitles the defendant to have his punishment assessed by the jury.
A strict construction of the statute would require a defendant to simultaneously verbally enter his plea before the jury and manually file his written election with the Clerk.
This would result in a practice that would at its best be awkward. We do not believe that the legislature intended such a result.
Thus, until the charging instrument was read to the appellant in open court in the jury’s presence, but before he entered his plea to the charging instrument, he had the right to elect whether the trial judge or the jury would assess the punishment in the event he was found guilty. Jones v. State, supra, and Jones v. State, 646 S.W.2d 449 (Tex.Cr.App.1983). Cf. Wilson v. State, 633 S.W.2d 952 (Tex.App.—El Paso 1982, No P.D.R.). The facts in Pace v. State, supra, reflect that the election that the defendant made in that cause occurred before the lunch recess and after the jurors had been excused for lunch. The election was held to be timely. In accordance with this Court’s decision of Toney v. State, supra, which was decided over three (3) years prior to what occurred in this cause, appellant should not have been forced to make his election prior to the jury voir dire. Art. 37.07, supra.
Lastly, the author of the majority opinion, and the majority of this Court, have apparently overlooked this Court’s decision' of Cleaveland v. State, 507 S.W.2d 769 (Tex.Cr.App.1974), in which this Court at page 770 held that the trial court “erred in refusing to permit the filing of a motion for probation prior to the voir dire examination of the jury panel on the basis that the filing was untimely.”
In requiring the appellant in this cause to make his election as to whether the trial judge or the jury would assess the punishment, in the event he was found guilty, at a pre-trial hearing that was not conducted in accordance with the provisions of Art. 28.-01, supra, but which was nothing less than the “Harris County informal hearing on pretrial motions,” was not only error, it was reversible error, and this Court should so hold. To the majority’s contrary holding, I respectfully dissent.