OPINION ON APPELLANT’S MOTION FOR REHEARING
After finding the appellant guilty of rape, the jury assessed punishment at 10 years confinement and recommended probation.
On original submission we affirmed appellant’s conviction.
The jury’s verdict on punishment provides as follows:
“We, the Jury, having found the defendant, LESTER BRIDGES, guilty of the offеnse of rape, assess his punishment at confinement in the Texas Department of Corrections fоr a period of 10 years. “We further find that the defendant has not heretofore been convictеd of a felony, offense in this State or in any other State, and we recommend that the imposition оf sentence in this case be suspended and the defendant be placed on probation.”
On оriginal submission, we addressed appellant’s complaint as follows:
“The appellant complains the court erred in assessing probation for a term of 10 years, when the jury assessed punishment of 10 yеars, recommended probation, but did not set any term for such probation. This court has held that in felоny cases the term of probation coincides with the length of time assessed as punishment, unless it is set aside at an earlier time as provided by Article 42.12, Section 7 V.A. C.C.P.; Kinard v. State,477 S.W.2d 896 (Tex.Cr.App.1972), and when appeal is taken probation does not commence until the mandate of this court is issued. Boss v. State,523 S.W.2d 402 (Tex.Cr.App.1975). The cоurt did not err in ordering probation for 10 years.”
We must determine whether our holding in Kinard v. State, supra, that “the term of probation coincides with the lеngth of time assessed as punishment,” is still valid in light of the fact that the Legislature modified the pertinent statute, Art. 42.12, Secs. 3, 3a, V.A.C.C.P., since Kinard was decided. 1
Art. 42.12, Sec. 3a, V.A.C.C.P., provides in pertinent part:
“When there is a conviction in any court оf this State and the punishment assessed by the jury shall not exceed ten years, the jury may recommend prоbation for a period of any term of years authorized for the offense for which the defendant was convicted, but in no event for more than ten years ...
*100 “In all eligible cases, probation shall be granted by the court, if thе jury recommends it in their verdict, for the period recommended by the jury.”
Under the prior statute, a jury’s duty at punishment was to assess punishment and to decide whether or not to recommend probation, if the defendant was eligible and properly applied for it. The actual term of probation was to be set by the court, who “in its discretion” could “fix a period of probation ... equal to or less than thе term of punishment assessed by the jury.” 2 The 1975 amendment, see supra note 1, repealed the court’s disсretion with regard to the period of probation. Under the current statute, the court is bound to grant probation “for the period recommended by the jury.” Under the current statute, then, the jury’s duty at punishment is to assess punishment, and then if the jury decides that probation is appropriate (and the defendant is eligible and has properly applied for it), the jury is to recommend the period to be served on probation. The probation period recommended by the jury may be less than or greater thаn the term of punishment assessed by the jury, as long as the period is for a term of years authorized for thе offense and does not exceed ten years. 3
Despite the statutory changes, we find that our оpinion on original submission properly applied Kinard to the instant case. Kinard merely holds that when a jury assesses punishment and recommends probation, but does not specify a term for that probation, it is presumed that the jury intends the term of probation to coincide with the time assessed as punishment. 4
While the court’s chargе in the instant case did not instruct the jury that it could recommend a term for probation that differed from the term of punishment assessed, appellant made no objection to the charge before it was submitted to the jury, and raised the issue for the first time on appeal. Furthermore, there is nothing in the reсord to indicate that the jury would have considered giving appellant a lesser period for probation than the time assessed as punishment. The jury assessed punishment at 10 years, the maximum allowable for consideration of probation.
Appellant’s motion for rehearing is overruled.
Notes
. See Acts 1975, 64th Leg. ch. 110, Sec. 1, p. 263.
. See Acts 1973, 63rd Leg. ch. 464, Sec. 1, p. 1269, formerly part of Art. 42.12, Sec. 3.
. We note that when the judge assesses punishment, he too is allowed to “fix the period of probation without regard to the term of punishment assessed” as long as the period of probation assessed is not longer than 10 years, or less than the minimum prescribed for the offense. See Art. 42.12, Sec. 3, V.A.C.C.P.
.To the extent that Kinard can be construed as precluding a jury or a court from setting a term for probation that differs from the time assessed as punishment, it is overruled.