Arcos v. State , 1982 Tex. App. LEXIS 4050 ( 1982 )

OPINION

YOUNG, Justice.

This is an appeal from a conviction for aggravated robbery. Appellant pled guilty to a jury. The jury denied his application for probation and assessed his punishment at five years.

We note that the record has come forward with an agreed statement of facts under Tex.Code Crim.Proc.Ann., art. 40.09 § 11 (Vernon Supp. 1982). For this we commend the parties.

In his only ground of error, appellant contends that the trial court erred in refusing to include in the charge an instruction and a verdict form which would permit the jury to assess a penitentiary term with probation and a fine that was not probated. The punishment option requested by appellant is authorized under Tex.Code Crim.Proc.Ann. art. 42.12 (Vernon 1979). Ex parte McIver, 586 S.W.2d 851 (Tex.Cr.App.1979). Refusal to submit this option to the jury was error.

The judgment of the trial court is reversed and the cause is remanded.