
    Frank PUENTE, Appellant, v. The STATE of Texas, Appellee.
    No. 56387.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for driving a motor vehicle upon a public highway while intoxicated. There is no transcript of the testimony and no brief has been filed. There is no contention of any error on appeal.

The punishment was assessed by the jury at one year in jail and a $500 fine. The jail time and $200 of the fine were probated. This Court has recently held in Franklin v. State, 576 S.W.2d 621 (Tex.Cr.App.1978), that where the jail time and a fine have been assessed in a misdemeanor case that the jail time cannot be probated. It also noted that the trial court could not exact a portion of the penalty not probated. Under that case, the judgment must be reversed. Accordingly, the judgment is reversed and the cause is remanded. 
      
      . The writer did not agree then and does not agree now with the Franklin case but the majority controls.
     