¶1dissenting.
¶2I respectfully dissent for two reasons.
¶3In the first instance, the trial court prevented objective cross-examination of the State’s witnesses on the question of value, a necessary element of proof for the State to carry its burden. The appellant objected and preserved the error. I would adhere to that line of cases holding that where the right of confrontation is compromised, no showing of harm is required. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed. 347 (1974); Zuniga v. State, 664 S.W.2d 366 (Tex.App. — Corpus Christi 1983, no pet.).
¶4The majority holds that in order to preserve error, the appellant must show by bill of exception what questions he wanted to propound and the answers expected therefrom. They overlook the fact that the record already shows what questions the appellant wanted asked and what answers he anticipated; therefore, no bill of exception was necessary. Furthermore, establishing the value of the vehicle was an essential element of the State’s case. If the complainant’s testimony cannot stand the test of cross-examination, was there a case in the first instance?
¶5Next, appellant challenges the constitutionality of article 37.07, section 4, Tex. Code Crim.P. (Vernon 1986), which makes mandatory a jury instruction on parole and credits for good conduct time in certain cases.
¶6Article 37.07(4) requires that where punishment is to the jury, the charge must include language set out in the statute relative to the possibilities for parole as well as good conduct time credits. The charge on punishment in this case tracked the statutory provisions verbatim. There was no objection to the charge.
¶7*822Generally, courts should reach the question of the constitutionality of a statute only if it cannot reverse on another ground. Smith v. State, 658 S.W.2d 172, 174 (Tex.Cr.App.1983). Appellant asks in his remaining two grounds of error that the court find that article 37.07(4) Tex.Gode Crim.App.1983). Appellant asks in his re-invasion of the judicial and executive power, and that it is unconstitutionally vague.
¶8To show a statute to be unconstitutionally vague and ambiguous, appellant must demonstrate that persons of common intelligence would necessarily guess at its meaning and differ as to its application. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, (1972); Aheard v. State, 588 S.W.2d 327, 338 (Tex.Crim.App.1979). A statute that is so vague that its application violates the first essential of due process of law is fundamentally defective. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Passmore v. State, 544 S.W.2d 399 (Tex.Crim.App.1976); Baker v. State, 478 S.W.2d 445 (Tex.Crim.App.1972); Ex parte Chemosky, 153 Tex.Crim. 52, 217 S.W.2d 673 (1949). In this instance it is not necessary to preserve a fundamental error by argument or objection to the trial court and the error may be first raised on appeal.
¶9A careful reading of the statute reveals that it is hopelessly ambiguous due to drafting errors.
¶10The charge given to the jury tracks paragraphs from 37.07(4)(a), (b) and (c). Those sections are cross-referenced to article 42.-12 sec. 3f(a)(l) and (a)(2). However, those sections of article 42.12 do not contain the substantive matter referred to in 37.07(4)(b) and (c). Section 3g(a)(l) and (2) and perhaps 3g(b) and (c) contain material in harmony with what should be anticipated on reading 37.07(4)(a), (b) and (c).
¶11I would hold that the drafting defects are sufficiently ambiguous that persons of common intelligence would be required to guess at the meaning and intent of the legislature and could differ in their opinion as to the statute’s proper application.
¶12I would reverse the judgment and remand the cause for a new trial with directions to exclude the instructions.