Fair v. State of Texas

I respectfully dissent from the majority's holding with respect to appellants' third and fourth points of error finding beyond a reasonable doubt that the court's instructions concerning the parole and good conduct law made no contribution to the punishments set out in these cases. As I understand the holding of Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1988) (Opinion on Rehearing), it is the duty of this Court, *Page 902 in reviewing the trial court's error in submitting the unconstitutional instruction concerning the parole law, to reverse the judgment unless we determine beyond a reasonable doubt that the error made no contribution to the punishment. The single fact that the jury gave the defendants probation in these cases does not meet this burden for me. There is nothing in this record to indicate how the jury arrived at the granting of probation. It is well known that on occasion juries will decide the length of punishment and amount of fine, if any, they believe is justified in a particular case and after making that decision then consider whether probation is appropriate. This trial took 6 days to try and the record consists of 834 pages. I cannot say beyond a reasonable doubt what factors the jury considered in arriving at its decision. I would feel compelled to set aside the judgment of the trial court in this case and remand the matter for further proceedings in accordance with Ex parte Klasing, 738 S.W.2d 648 (Tex.Crim.App. 1987). See Tex. Code Crim.Proc. Ann. art. 44.29(b) (Vernon Supp. 1988).