dissenting.
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. This is such a case. Much of the bench and bar will be quite surprised to learn that the defendant’s election as to punishment should always have been irrevocably (except with consent of the State) made months or even years before trial or jury selection. To this pronouncement, I dissent.
We granted the appellant’s petition for discretionary review to determine when a defendant must file an election to have the jury assess punishment in cases where a pre-trial hearing is held. First, it should be noted that the constitutional right to a trial by jury does not encompass the right to have the jury assess the punishment. Bul*471lard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977), rev’d. on other grounds, 665 F.2d 1347 (5th Cir.1982), vacated, Estelle v. Bullard, 459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983). Rather, the right to have a jury assess punishment in Texas is purely a creature of statute. Article 37.07, § 2(b), V.A.C.C.P., provides:
“(b) Except as provided in Art. 37.071 (capital cases), 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 at the time he enters his plea in open court, the punishment shall be assessed by the same jury. 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.”
Disposition of the ground of review then would seemingly turn on interpretation of the phrase “at the time he enters his plea in open court.”
In Toney v. State, 586 S.W.2d 856 (Tex.Cr.App.1979), we considered a defendant’s contention that it was error to permit the State to examine the jury panel on punishment during voir dire, as the defendant had not yet elected to go to the jury for punishment. In overruling the defendant’s contention, we adopted the Fifth Circuit’s construction of the phrase “at the time he enters his plea in open court” to mean at the time the defendant makes his plea to the indictment before the jury. See, Donald v. Jones, 445 F.2d 601 (5th Cir.1971); Donald v. Decker, 318 F.Supp. 563 (N.D.Tex.1970). This response to the reading of the indictment would occur after the jury has been voir dired, selected, and impaneled. See, Art. 36.01, V.A.C.C.P. We held, therefore, that it was not error for the State to examine the jury panel on punishment because the defendant still had his Art. 37.07, § (2)(b) election available and could choose to exercise it. We noted that until the time has passed to make the election, the trial judge cannot know whether the jury or the bench will assess punishment.
In the case sub judice, the trial court, over objection, required the appellant to file his election on punishment at the time of the pre-trial hearing and prior to his voir dire of the jury panel. Obeying the trial court’s order, appellant filed a written request to have the judge assess the punishment in the event a guilty verdict was returned by the jury. The Houston Court of Appeals found that when the trial court holds a pre-trial hearing in accordance with Art. 28.01, V.A.C.C.P., the defendant may be required to file all of his pleadings and motions, including his election to have the jury assess punishment, at the pre-trial hearing. In so holding, the Houston Court of Appeals relied on the Beaumont Court of Appeals case of Ceaser v. State, 624 S.W.2d 669 (Tex.App.—Beaumont 1981, no pet.).
In Ceaser, the Beaumont Court of Appeals found that the provisions of Art. 37.-07, § 2(b) and the Toney rule does not apply to cases in which a pre-trial hearing is held. Rather, the Court of Appeals found that the combined provisions of Art. 27.02(7) and Art. 28.01, § 1(2), V.A.C.C.P., control.
Article 28.01, V.A.C.C.P., provides in pertinent part:
“Sec. 1. ... The pre-trial hearing shall be to determine any of the following matters:
(2) Pleadings of the defendant....”
Article 27.02, V.A.C.C.P., provides in pertinent part:
“The pleadings and motions of the defendant shall be:
(7) An election, if any, to have the jury assess the punishment if he is found guilty-”
*472We are thus presented with a conflict between the provisions of Art. 37.07, § 2(b) as construed by this Court in Toney, supra, and the combined provisions of Art. 28.01, § 1(2) and Art. 27.02(7). The former provision, as construed, would require the defendant to file his election to have the jury assess the punishment at the time he makes his plea to the indictment before a jury which has been duly selected, impaneled and sworn. The combined effect of the latter provisions would require the defendant to file his election at the pre-trial hearing, before voir dire of the jury panel and whether or not he entered a plea at the pre-trial hearing.
Art. 5429b-2, § 3.06, V.A.C.S. (The Code Construction Act) provides:
“Sec. 3.06. If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”
This statute applies to criminal cases. V.T. C.A., Penal Code, § 1.05(b); Chalin v. State, 645 S.W.2d 265 (Tex.Cr.App.1982); Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976). See also, Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977).
Art. 37.07, § 2(b), V.A.C.C.P., is a special statute, with a specific and limited purpose. The statute deals strictly with the procedure to be employed in assessing punishment after a finding of guilty has been returned. Subsection 2 thereof explicitly dictates that an election to go to the jury for punishment, if any, is to be submitted in writing at the time the defendant enters his plea in open court. Article 28.01, V.A. C.C.P., however, is a general statute dealing with pre-trial hearings, and Art. 27.02, Y.A.C.C.P., is a general statute dealing with the pleadings and motions of the defendant. Neither Art. 28.01, supra, nor Art. 27.02, supra, purports to deal specifically with the proper time to file an election to have the jury assess punishment, as does Art. 37.07, § 2(b), supra. I would hold, therefore, that the provisions of Art. 37.07, § 2(b) prevail, and any election to have the jury assess the punishment applicable to the offense must be made at the time the defendant enters his plea in open court. It remains to be determined just when one “enters his plea in open court”.
Black’s Law Dictionary 983 (5th ed. 1979) defines “open court” as a court “which has been formally convened and declared open for the transaction of its proper judicial business.” It follows then that anytime a court is performing some function of judicial business prescribed by the Code of Criminal Procedure it is “open”.
The Code of Criminal Procedure contemplates two times when a defendant shall enter his plea. Both times are, according to our previous discussion, de facto “in open court.” The first is arraignment under Arts. 26.02 and 26.11, V.A.C.C.P., which provide:
“Art. 26.02 Purpose of Arraignment. An arraignment takes place for the purpose of fixing his identity and hearing his plea.”
“Art. 26.11 Indictment Read. The name of the accused having been called, if no suggestion, such as is spoken of in the four preceding Articles, be made, or being made is disposed of as before directed, the indictment shall be read, and the defendant asked whether he is guilty or not, as therein charged.”
The second is when the indictment is read to the jury and the defendant is entering a plea of not guilty as described in Art. 36.-01(1) and (2), V.A.C.C.P., which provides:
“Art. 36.01. Order of Proceeding in Trial. A jury being impaneled in any criminal action, the cause shall proceed in the following order:
1. The indictment or information shall be read to the jury by the attorney prosecuting. ...
2. The special pleas, if any, shall be read by the defendant’s counsel, and if *473the plea of not guilty is also relied upon, it shall also be stated....” 1
In the case at bar the defendant was not arraigned during the pre-trial hearing as authorized by Art. 28.01, § 1, V.A.C.C.P.2 Therefore, he did not enter his plea in open court at that time. Accordingly, it was error for the trial court to compel him to make his election as to punishment at that time.
Even had appellant been arraigned at the pre-trial, there is no authority for the proposition that his election as to punishment could be compelled at that time. Indeed, (and this is the real key to this case) at arraignment and at pre-trial the defendant may not even have counsel. Art. 28.01, § l(l)(appointment of counsel), V.A.C.C.P. The trial itself may not take place for months, perhaps years, after arraignment or pre-trial. Art. 28.01, § 1(5) (continuance), V.A.C.C.P. The trial may not even take place in the same county as the arraignment or pre-trial. Art. 28.01, § 1(7) (change of venue), V.A.C.C.P. Even the evidence available at the pre-trial may not be discovered until later. Article 28.01, § 1(8) (discovery), V.A.C.C.P. Evidence might also be disallowed after arraignment or after the time during pre-trial that the judge compelled the punishment election. Article 28.01, § 1(6) (motion to suppress), V.A.C.C.P. Rather than ignore the fact that regardless of what happens at the pre-trial hearing, the defendant will still, under Art. 36.01(2), V.A.C.C.P., enter his plea in open court at a time subsequent to the pre-trial hearing, we must agree with the following statement of the El Paso Court of Appeals: “The order of trial dictates that voir dire be conducted prior to the deadline for election as to sentencing.” Wilson v. State, 633 S.W.2d 952, 957 (Tex.App.—El Paso 1982). I would therefore hold that the arraignment is simply not a time when a trial judge can compel election as to punishment. Accord, Pace v. State, 630 S.W.2d 765 (Tex.App.—Houston [1st Dist.] 1982, pet. dism’d). The time when “he enters his plea in open court” then is the time the defendant makes his plea to the indictment before the jury. Toney, supra.
The Toney rule makes perfect sense because: 1) it fixes the identity of the trial judge, who in many courthouses may not be the judge who conducted the pre-trial hearing; and, 2) it affords an accused the opportunity to see, examine, and strike jurors prior to having to make an election as to whether the jury or judge shall assess the punishment. Juror attitudes regarding punishment are quite diverse — what more cogent area of inquiry should trial counsel be allowed to make before he is required to choose the authority which will assess his punishment? If the Texas statutory right of election is going to be meaningful, it should be informed and intelligently made. To compel a blind election between a trial judge (and his attendant punishment reputation) and twelve faceless citizens (whatever their attitudes on punishment may be) is to truly deprive a criminal defendant of a valuable right. Consequently, I would find that the trial judge erred in requiring the appellant, over objection, to file his election on punishment at the pre-trial hearing.
This error was compounded then by the inability of the appellant to voir dire the jury panel on the question of punishment.3 Although no election as to punishment was filed at the time appellant entered his plea *474to the indictment in open court in front of the jury, I take that as proper conduct of appellant’s attorney in acquiesing to the previous order of the trial court that the election be filed at pre-trial. Appellant’s well articulated objection at that time was sufficient to preserve error. See, Gibson v. State, 549 S.W.2d 741, 743, 746 (Tex.Cr.App.1977). Moreover, the absence of voir dire questioning about punishment precluded the making of any rational choice when the plea was entered in front of the jury. It is the wrongful de facto denial of this statutory right to have the jury set punishment that provides the harm requiring reversal.
To the judgment of the majority of this court holding otherwise, I dissent.4
ONION, P.J., joins.. Art. 26.14, V.A.C.C.P., of course, mandates that the jury assess punishment if the plea is guilty, permitting the defendant to select the judge to assess punishment by waiver of jury, not by election.
. The record reflects that appellant waived formal arraignment and entered a plea of not guilty on July 6, 1982. The pre-trial hearing was conducted on August 2, 1982.
.This seems to have been the motivation of the trial judge in compelling the election when he did. The statement of facts quotes the judge as saying that the election was being ordered before voir dire because "[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." During the voir dire the prosecutor asked potential jurors if they could “leave it [punishment] in the hands of the Judge...?”
. Hopefully, in the opinion of the writer, some of the mischief done by the majority opinion will be alleviated in the future by S.B. 148, effective September 1, 1985, which amends Art. 37.07, § 2(b), C.C.P., to allow a defendant's election of the judge or the jury to assess punishment "before the commencement of the voir dire examination of the jury panel” instead of "at the time he enters his plea in open court."