The opinion
CLINTON, Judge,
concurring.
Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972), was wrongly decided, and its progeny are equally wrong. See Adams v. State, 624 S.W.2d 568, 569-573 (Tex.Cr.App.1981) (Dissenting Opinion). Therefore, we need not strain to distinguish the judgments in those cases from the one here by calling the former “voidable” and the latter “void.” The true rule in Texas is that an appellate court “may not reduce the punishment assessed by the jury,” Ocker v. State, 477 S.W.2d 288, 290 (Tex.Cr.App.1972), and the consequence of that rule is:
“If the punishment was erroneously imposed, then the case stands in the same position as if the jury had failed to reach a verdict. While this Court may remand for an assessment of punishment where the punishment was originally set by the court, we may not do so where the original punishment was set by the jury.”
Id., at 291 . Ellison v. State, 432 S.W.2d 955 (Tex.Cr.App.1968).
On that basis I concur in the order granting relief.
ONION, P.J., joins.