The opinion
TEAGUE, Judge,
dissenting.
The record of this cause is almost a duplicate of the one found in Ex parte Owens, 679 S.W.2d 518 (Tex.Cr.App.1984). As in Ex parte Owens, supra, all members of this Court agree in this cause that one of the two prior felony convictions that was alleged and used to enhance the punishment of Elvin James Adams, applicant, to automatic life imprisonment is void. See V.T.C.A., Penal Code, Section 12.42(d), prior to amendment. Also see Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App.1979).
Adams, however, also claims in his application that his trial counsel was ineffective counsel because the attorney erroneously advised him to permit the trial judge, rather than the jury, to assess his punishment. The basis for the attorney’s advice was as follows: “because [the trial judge] knew about [Adams’] prior convictions and would probably assess a lighter sentence,” which advice Adams claims he acted upon in agreeing that the trial judge, rather than the jury, would assess his punishment. However, counsel’s advice was patently erroneous because if the State proved up the two prior felony convictions that it had alleged in the indictment against Adams, to enhance Adams’s punishment to automatic life imprisonment, see Section 12.42(d), pri- or to amendment, which it did, the trial judge, by his very oath of office, presumably had no choice about the matter — he had to assess Adams’ punishment at life imprisonment. For the same reason, if the members of the jury had been called upon to assess the punishment, and had they adhered to their oaths of office, they also would have assessed Adams’ punishment at life imprisonment.
The majority “white-washes” Adams’ claim by holding: “Applicant has not alleged any facts to show in what manner he was harmed by fact that he was sentenced by the judge than by a jury.” In light of Adams’ claim, and what this Court did in Ex parte Owens, supra, I am compelled to disagree.
In Ex parte Owens, supra, the defendant in that cause, in addition to claiming that one of the prior felony convictions that had been alleged and used to enhance his punishment to automatic life imprisonment was void (which contention this Court sustained), also asserted that because of erroneous legal advice by his trial counsel, which he claimed he acted upon, he was denied and deprived of his right to have the jury assess the punishment. In response, this Court “found an evidentiary hearing was required on this issue and remanded [the] cause to the habeas corpus court for that purpose.” A hearing was held. Thereafter, this Court resolved the issue against the defendant. In this cause, however, no such hearing has been held on Adams’ like contention. Why is Adams not *260 entitled to the same consideration that this Court gave the defendant Owens?
This Court’s above declaration that one of Adams’ prior convictions is void should entitle Adams to a hearing to establish, if he can, that but for his trial counsel’s patently erroneous legal advice he would have elected to have the jury, rather than the trial judge, assess his punishment. The majority states that Adams has not shown any harm. The short answer to the majority’s holding lies in the fact that had the jury, instead of the trial judge, assessed Adams’ punishment, Adams would now be entitled to a new trial, rather than simply a new punishment hearing, as the majority opinion mandates.
Because the majority refuses to order a hearing on the issue that Adams raises, that his trial counsel was ineffective because he advised Adams to elect to have the trial judge, rather than the jury, assess his punishment, I am compelled to dissent.