¶1(dissenting)-
¶2Art. 693, C.C.P. provides that if the plea is not guilty, the jury must find that the defendant is either “guilty” or “not guilty”, “and they shall assess the punishment in all cases where the same is not absolutely fixed by lazv to some particular penalty.”
¶3The appellant was found guilty of the offense of burglary of a private residence at night, the punishment for which is found in Art. 1391, P.C.: “One guilty of burglary of a private residence at night shall be confined in the penitentiary for any term not less than five years.”
¶4The jury also found that the appellant had been previously-convicted of burglary, as charged in the indictment, but assessed no punishment. The trial court received the verdict and entered judgment ordering appellant’s confinement in the penitentiary for a term of 99 years.
¶5The trial court’s action and the majority opinion affirming the 99 year term is supported by the opinion of this Court in Brown v. State, Tex.Cr.App., 346 S.W.2d 842, wherein a 99 year term for a second conviction of assault with intent to rape was affirmed, though the jury assessed no punishment.
¶6As I see it, Brown v. State is clearly wrong and should be overruled rather than followed.
¶7Art. 62, P.C. provides: “If it be shown on the trial' of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”
¶8What is the highest punishment affixed by the statute (Art. 1391, P.C.) for burglary of a private residence at night?
¶9It is evident from a reading of the statute that the Legislature has not fixed a maximum term of years or a life term, or any other particular punishment which may be said to” be the highest particular penalty. They have provided simply that the person committing such offense shall be confined in the penitentiary “for any term not less than five years.”
¶10It follows that a term of 99 years is not “absolutely fixed by law” as the “particular penalty” for burglary of a private residence enhanced by a prior conviction for burglary, nor is 99 years the highest punishment “which is affixed to the commission of such offenses [burglary of a private residence at night] in ordinary cases.”
¶11The fallacy of the reasoning in Brown v. State, that a sentence of 99 years being in excess of the expected life span of any defendant, any greater number of years assessed would be without significance, may be demonstrated.
¶12If 99 years is the maximum punishment, any greater number of years that a jury should assess would necessarily be excessive, and the defendant having served the minimum punishment provided for the offense, would be entitled to discharge. Ex parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d *333412; Ex parte Lindsey, Tex.Cr.App., 331 S.W.2d 320.
¶13The parole laws contain a provision relating to the parole of a convict who has served one-fourth of the maximum sentence.
¶14The expected life span of a defendant can have no significance. If so, why not say the maximum punishment is 90 years, 80 years, 70 years, or even 60 years, rather than 99 years?
¶15I would overrule Brown v. State, supra, and hold that Art. 62, P.C. does not apply where the statute fails to provide a maximum term or a life term as punishment for the primary offense.