Keasler, J., delivered this dissenting opinion in which Keller, J. joins.

I would affirm the judgment of the court of appeals because I do not believe Art. 44.29 controls this case at all.

The majority concludes that the language of Art. 44.29 is unambiguous.⁽¹⁾ I agree. But I think it means something completely different than the majority.

The majority compares sections (b) and (c) of the statute, notes the difference between the "in" language in section (b) and the "affecting" language in section (c), and concludes that the statute is unambiguous. But the majority ignores section (a). Section (a) provides that error occurring in the guilt/innocence phase, or errors occurring in both the guilt/innocence phase and the punishment phase, warrant a reversal for a completely new trial on guilt/innocence. No mention is made of voir dire at all.

This case involves voir dire error which pertains to a punishment issue. Section (c) of Art. 44.29 does not apply, as it involves capital cases. That leaves sections (a) and (b). Neither section applies. Section (a) is limited to errors in either guilt/innocence or punishment, while section (b) is limited to errors in punishment. Voir dire is neither the guilt/innocence stage or the punishment stage.⁽²⁾

Viewing the statute as a whole, including section (a), convinces me that the statute unambiguously does not apply to voir dire error in a non-capital case.

Since Art. 44.29 does not apply, the court of appeals was free to fashion any appropriate appellate remedy in this case.⁽³⁾ It did so when it remanded the case for a new punishment hearing. I would affirm the court of appeals' decision.

Since the majority thinks the statute means one thing, and I think it means something else entirely, a reasonable argument can be made that the statute is ambiguous. Under Boykin, when a statute is ambiguous, we look to extratextual factors to determine its meaning.⁽⁴⁾

The legislative history behind the enactment of Art. 44.29 is revealing. When the statute was enacted in 1965, it merely provided that, when the appellate court awards a new trial, the cause "shall stand as it would have stood in case the new trial had been granted by the court below."⁽⁵⁾ It stated the same thing in the prior code.⁽⁶⁾

This language meant that, regardless of the type of error which resulted in a cause being reversed, the case was retried in its entirety upon remand. This requirement eventually caused some frustration in this Court. In Pierson v. State,⁽⁷⁾ a capital case, the defendant complained on appeal that two veniremembers had been unlawfully excused for cause (on a punishment issue). We agreed and reversed the conviction. On rehearing, the State apparently argued that we should either reform the sentence to one of life, or remand for punishment only. We denied the State's motion for rehearing, but two judges wrote opinions. Judge Teague's concurring opinion and Judge McCormick's dissenting opinion both lamented the Court's lack of options and urged the Legislature to do something.⁽⁸⁾

Several years later, the 69^th Legislature attempted to address the problem with House Bill 2130 and Senate Bill 841. Both bills provided that, in non-capital cases, if the appellate court reverses a case for error occurring in the punishment phase, the remand shall be as to punishment only. Neither bill became law. Judge Leon Douglas of this Court testified on Senate Bill 841, explaining that there were quite a few cases which are reversed solely for error at the punishment stage but which get remanded for a completely new trial.⁽⁹⁾

In the next session, the bills re-appeared as Senate Bills 14 and 43, and House Bill 382. This time, Senate Bill 43 passed. It provided, as had House Bill 2130 and Senate Bill 841 of the 69^th Session, that, in non-capital cases, the remand should be for punishment only if the appellate court reversed for error occurring in the punishment phase. The concern with these bills, as with the bills in the 69^th Session, were the time and expense of re-trying a case on guilt/innocence, and the windfall to a defendant in receiving a retrial on guilt/innocence.⁽¹⁰⁾

The Bill Analysis to Senate Bill 43 is particularly relevant. In the "Background" Section, the analysis states that, under the law at that time, "when an appellate court awards a new trial to a defendant, a complete new trial must take place regardless of whether the error occurred at the guilt/innocence stage or the punishment stage."⁽¹¹⁾ It then recognized this Court's complaints in Evans, Pierson, and Ellison, that we were "without authority to modify punishment or direct a new trial before a different jury on the issue of punishment only, where prospective jurors in a capital case are improperly excluded and the error affects punishment only."⁽¹²⁾

Ironically, our complaints in Evans, Pierson, and Ellison were all pertaining to capital cases, but Senate Bill 43 was restricted to non-capital cases. At that time, the Legislature was concerned with the fact that capital cases are different and seemed to warrant a reversal for a new trial rather than simply a punishment hearing. As the Bill Analysis to Senate Bill 43 stated, "it was considered unwise to apply this bill to capital murder cases, where significant issues of jury selection could affect a remand for punishment only."⁽¹³⁾

After Senate Bill 43 became law, Art. 44.29 had three sections. Section (a) provided that, if the appellate court awards a new trial on the basis of an error in the guilt/innocence stage, or on the basis of errors in both the guilt/innocence stage and the punishment stage, the cause shall stand as if the new trial had been granted by the court below. In other words, in those situations, retrial is had on the guilt/innocence stage and the punishment stage. Section (b) provided that, if the appellate court awards a new trial on the basis of an error or errors made in the punishment stage, the court shall commence the new trial as if a finding of guilt had already been returned. That is, retrial is only on punishment. Section (c) provided that "this section" (presumably section (b)) does not apply to capital cases; in such cases, the cause shall stand as it would have stood in case the new trial had been granted by the court below. So in capital cases, regardless of when the error occurred, the retrial would be as to guilt/innocence and punishment.

While the cases prompting the legislation, Pierson and the rest, specifically pertained to voir dire error in capital cases, the statute itself does not mention voir dire and does not apply to capital cases. Was voir dire meant to be included in this statute or not? The answer lies in later legislative action.

In the 72^nd Session, the Legislature extended the statute to capital cases. Senate Bills 880 and 414, and House Bills 9 and 1240, all contained some variation of the language that eventually became law. The discussion regarding the bills indicates that they were in response to the Supreme Court's recent Penry⁽¹⁴⁾ case. The State expected that many capital cases might get reversed based on Penry error. But that error would have occurred only at the penalty stage of the trial, and the State did not want to have to re-try each case as to guilt/innocence. So the State hoped to limit all the Penry reversals to retrials on punishment only.

Significantly, each one of the bills originally provided that if the appellate court reverses a capital case only on the basis of any error in the punishment stage of trial, then the remand will be as to punishment only. But a Committee Substitute to Senate Bill 880 revised that language to read: "on the basis of any error affecting punishment." Senate Bill 880 is the bill that eventually became law.

The hearings regarding the bills indicate the purpose behind the amendment. Senate Bills 880 and 414 were heard simultaneously. Attorney Keith Jagmin testified against the bills, arguing that capital cases were different and should be treated differently from non-capital cases. He then proposed a problem with the bill.

Assume that the punishment error, that we call a punishment error, relates to a limitation on voir dire, that concerns a punishment issue. Now what do we re-try? Do we come back and re-try, for example, in the case that I just tried . . . if the trial court improperly limited my voir dire, is that a punishment error? Is that a guilt/innocence error? I mean, it came long before guilt and innocence was ever tried, though it relates only to the punishment phase of trial.⁽¹⁵⁾

Senator Sibley responded to this testimony by saying, "The appeals court will tell you that."⁽¹⁶⁾ But after Jagmin's testimony, Senate Bill 880 was amended from saying the error should be "in" the punishment phase to saying the error should be "affecting" the punishment stage.

Again, the irony is evident. The cases which prompted the legislation in the first place, Pierson and the rest, were capital cases containing voir dire error which related to punishment. The first legislative response was to pass a bill which neither applied to capital cases nor addressed voir dire error. The second legislative action was to make the statute apply to capital cases and, after a passing remark by someone testifying against the bill, including error "affecting" punishment, which implicitly includes error in the voir dire.

So the statute now contains three sections. Sections (a) and (b) are the same as they were before. Section (c) now provides that, if the appellate court reverses a capital case "on the basis of any error affecting punishment only," the retrial shall be only for a new punishment hearing.

So what does it all mean? First, the differing language in sections (b) and (c) of Art. 44.29 were written in different legislative sessions. The language pertaining to non-capital cases in section (b) was enacted in 1987, while the language pertaining to capital cases in section (c) was enacted in 1991. In 1987, the Legislature, intentionally or not, limited retrials in non-capital cases to error "in" the punishment phase. Then, in 1991, the Legislature changed the wording as it applied to capital cases, to make retrials on punishment available for any error "affecting" punishment. The amendment was an intentional effort, in response to a witness' testimony regarding voir dire error, to make section (c) applicable to errors occurring in voir dire but affecting punishment. No such amendment was made to sections (a) or (b). While the Legislature was not addressing those sections at the time, nevertheless the failure to amend them indicates that those sections still would not apply to voir dire error.

Another fact to address is that voir dire is nowhere mentioned in Art. 44.29. The majority believes that voir dire error pertaining to punishment is encompassed within section (c)'s "affecting" language but not within section (b)'s "in" language. I agree. But, to take this logic to its natural conclusion, voir dire is also not encompassed within section (a). Voir dire error is simply not contemplated in sections (a) or (b), and therefore the statute does not apply to voir dire error in a non-capital case.

It could be argued that the literal language of section (b) requires the error to be "in" the punishment phase in order for a remand to be on punishment only. I agree that the literal language of the statute should be followed. As explained above, I believe the literal language of the statute does not apply to voir dire at all, and Art. 44.29 has no relevance to this case.

So I believe the Legislature would have been wiser to amend section (b) when it amended section (c). The Legislature should have written section (b) to apply to voir dire errors in non-capital cases that affect only a punishment issue. But they did not. Sections (a) and (b) do not apply to voir dire at all, since voir dire is neither the guilt/innocence phase or the punishment phase. It is not for us to add or subtract from what the Legislature has written.⁽¹⁷⁾

I believe the language of Art. 44.29 is unambiguous. It does not apply to this case. But even if the statute's literal language were ambiguous, the legislative history indicates that Art. 44.29 does not apply to voir dire error in a non-capital case. Since Art. 44.29 does not apply, the court of appeals was not restricted by that statute, and its decision to remand this case for punishment only was sound under Rule 43.2. I would affirm.

DELIVERED: December 1, 1999

PUBLISH

1. Ante, __ S.W.2d at __, slip op. at 5.

2. Chambers v. State, 903 S.W.2d 21, 36 n.16 (Tex. Crim. App. 1995) (in ineffective assistance of counsel cases, same standard applies to claims regarding the guilt/innocence phase of capital and non-capital cases, the punishment phase of capital cases, and the voir dire of non-capital cases; implying that voir dire is separate from guilt/innocence and punishment); Cooks v. State, 844 S.W.2d 697, 722 (Tex. Crim. App. 1992) (setting forth appellant's claim as one of error "during the voir dire, guilt/innocence and punishment portions of the trial"); Woods v. State, 569 S.W.2d 901, 902 (Tex. Crim. App. 1978) (explaining that judge presided over pretrial hearing, voir dire, guilt/innocence stage, and punishment stage). See also Chapters 35 and 36, Texas Code of Criminal Procedure (formation of the jury occurs first, then trial proceeds).

3. Tex.R.App.P. 43.2, 43.3.

4. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

5. Former Tex. Code Crim. Proc. Art. 44.29 (Vernon 1979) (amended 1987).

6. Former Tex. Code Crim. Proc. Art. 852 (repealed).

7. 614 S.W.2d 102 (Tex. Crim. App. 1980).

8. See also Evans v. State, 614 S.W.2d 414 (Tex. Crim. App. 1980); Ellison v. State, 432 S.W.2d 955 (Tex. Crim. App. 1968).

9. Criminal Justice Committee Hearing, March 26, 1985, Tape 1 of 2, Side 1, Counter 134-44.

10. Criminal Justice Committee Hearing, March 3, 1987, Tape 1 of 1, Side 1, Counter 289.

11. Bill Analysis to Senate Bill 43, 70^th Legislative Session.

12. Ibid.

13. Ibid.

14. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

15. Criminal Justice Committee Hearing, April 4, 1991, Tape 1 of 3, Side 1, Counter 402-13.

16. Id., counter at 413-15.

17. State v. Mason, 980 S.W.2d 635, 638 (Tex. Crim. App. 1998).