¶1concurring.
¶2As the majority ably points out, the plea bargain attempted in the present case is an impossibility for two statutory reasons: (1) An accused, in a capital felony case, cannot waive the right to trial by jury. Article 1.14, Vernon’s Ann. C.C.P. (2) Capital murder is a separate offense, punishable by a mandatory sentence of death or life imprisonment and therefore, neither of these mandatory sentences can be waived by the State. V.T.C.A., Penal Code, Section 12.31.
¶3In the present case, the State was not precluded from dismissing the capital felony indictment in order to proceed on an indictment or information for the lesser included offense of murder. Had this been done, a valid plea bargain could have been struck between the State and the appellant providing that in return for appellant’s plea of guilty the State would recommend punishment at life imprisonment. Under our present capital felony scheme, this is the only possible way the State could have entered into a plea bargain such as the one sought in the present case.
¶4For the reasons stated, I concur.