Appellant was convicted of the offense of burglary of a motor vehicle and the punishment was assessed at eighty (80) years in the Texas Department of Corrections. On direct appeal the conviction was affirmed. Rodriquez v. State, 721 S.W.2d 504 (Tex.App. — Houston [14th] 1986). Appellant filed a petition for discretionary review in which he contended that the prosecutor's argument referring to the law of parole was error. The Court of Appeals noted that the charge contained the instruction mandated by Article 37.07, § 4, V.A.C.C.P. They then analyzed the argument under the test set out in McKay v. State, 707 S.W.2d 23 (Tex.Cr.App. 1985). Finding no error the Court of Appeals overruled the point of error.
Recently, however, this Court delivered our opinion inRose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1988), in which we held that the statute in question is unconstitutional and that the appropriate vehicle to determine harm in a situation involving the parole law instruction is found in Tex.R.App.Pro. 81(b)(2). The Court of Appeals relied on the giving of the unconstitutional jury instruction in determining that the jury argument here was not error.
Therefore, this cause is remanded to the Court of Appeals for reconsideration of the harm, if any, caused appellant by the arguments relating to the complained of charge in a manner consistent with Rose, supra and Haynie v.State, 751 S.W.2d 878 (Tex.Cr.App. 1988).
ONION, P.J., dissents to the remand. *Page 142