¶1OPINION ON MOTION FOR REHEARING
¶2Appellant, in his motion for rehearing, cites us to Turner v. State, 518 S.W.2d 243 (Tex.Crim.App.1975). Our decision is contrary to the holding in that case. That case totally ignores and does not even mention the controlling code provision. The lan*135guage now appearing in Article 37.07, sec. 3(c), Tex.Code Crim.Pro.Ann., is identical to Section 2(d) of Article 37.07 as written in the Code of Criminal Procedure which became effective January 1, 1966, and would have been controlling at the time of the decision in the Turnercase. It states:
In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.
¶3We believe we are bound by the controlling code provision rather than an opinion which was issued without any reference to or application of the code. We can only conclude that the provision of the code which provides that no jeopardy shall attach where the jury is unable to agree on punishment was not cited to the court in the Turnercase. The motion for rehearing is overruled.