dissenting.
I respectfully dissent. Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987) (op. on reh’g) (Rose II), told us to apply the harm analysis of rule 81(b)(2), Tex.R. App.P., to determine if there was error in the cases submitted with the parole instruction. According to rule 81(b)(2), we must reverse the judgment unless we decide, beyond a reasonable doubt, the error in the charge did not contribute to the punishment. It is the State’s burden to prove the constitutionally defective parole instruction did not contribute to the punishment.
Rose II gave us three factors to consider in making the harm analysis in these cases: (1) whether the trial court gave the curative instruction, (2) the heinous nature of the crime, and (3) the defendant’s criminal record. Rose II, 752 S.W.2d at 554.
In this case: (1) the trial court did not give the curative instruction, (2) the crime was heinous, and (3) appellant did not have a criminal record. Of the 45 cases this Court has reviewed under the Rose II analysis, this is the first case that we have affirmed when only one of the three Rose II factors was present.1
The majority believes that the statutory charge was as effective in warning the jury not to consider parole as was the curative instruction discussed in Rose II. The majority says the instruction was the trial court’s “last word” on the subject of parole. I see the logic in their argument: if the Rose II opinion stands for the proposition that the trial court’s last instruction resolves conflict in the charge, it is just as logical to suppose the jury followed the next to last instruction to disregard.
These parole charge cases will pass. Unfortunately, the new rule promulgated by *501Rose II will remain. That new rule is: when the trial court gives conflicting instructions in the charge, we will presume the jury probably followed the trial court’s last instruction. In dealing with the conflicting instructions in Rose II, the Court of Criminal Appeals found it “particularly significant” that “the judge’s last word on the subject,” was that “parole was not [the jurors’] concern.” 752 S.W.2d at 554.
The Rose II court arrived at this resolution of the problem by combining two presumptions to disregard. The first presumption Rose II relied on is the presumption that the jury follows the trial court’s instructions in the charge, citing Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). In Cobarrubio, the court assumed the jury followed the trial court’s instruction “to the letter,” when the charge improperly lessened the State’s burden. Id. None would argue with that statement or the authority.
The second presumption, merged into this new rule by Rose II, is the presumption that a jury will follow the trial court’s instruction to disregard after the court sustains an objection to inadmissible evidence or improper argument. Rose II cited Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987), cert. denied, — U.S. -, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987), for this proposition. In Gardner, the defendant argued that the trial court should have granted his motion for mistrial following the instruction to disregard improper evidence and argument. The court held that it presumed, the jury followed the instructions to disregard. Again, everyone would agree with this statement of the law.
Both presumptions, independently of one another, are valid. It is a major extension of the two presumptions, however, to merge them into this new rule and hold the “judge’s last word on the subject” resolves conflicts in the charge. See Rose II, 752 S.W.2d at 554.
The problem is this: when a judge sustains an objection and instructs the jury to disregard what it heard, the jury is a witness to the mistake, the judge’s reprimand, and the correction. In most cases, it is reasonable for us to assume the jury disregarded what the judge told it to disregard. When, however, the trial judge tells the jury to disregard what he just told them, there is no mistake, no reprimand, no correction. It is not reasonable to assume the jury followed the judge’s instruction to disregard part of what he just said.2
I recognize that this Court said here and in cases that pre-dated Rose II, that the instruction to consider parole “in this case” was not in conflict with the instructions not to consider parole “as to this defendant.” See, e.g., Shaw v. State, 728 S.W.2d 889, 892 (Tex.App.—Houston [1st Dist.] 1987, no pet.). I disagree for two reasons. First, Rose II implied there was a conflict when it created this new presumption that the jury follows the judge’s last word. Second, the parole instruction told the jury to both consider parole in this case but not as to this defendant. The jury was there to make only one decision: what punishment is appropriate for this defendant? The jury was not brought together to ponder the philosophical consequences of the parole laws in this case. If the jury was to consider parole at all, it was only in its decision on punishment as to this defendant in this case.
The instruction to consider parole is, at best, an abstract principle of law not related to the jury’s decision about defendant’s *502punishment. But, even that interpretation of the instruction should cause us to reverse: the Court of Criminal Appeals has repeatedly told us that the charge should not contain abstract propositions of law. Newton v. State, 648 S.W.2d 693, 694 (Tex.Crim.App.1983). The charge must clearly apply the law to the facts of the case. Id. In Newton, the charge included abstract propositions of the law about robbery. Defendant, however, was charged with aggravated robbery. The court held the instruction on robbery was an abstract principle of law that was not applied to the case. The court said it was fundamental error and reversed on unassigned error. See also Williams v. State, 622 S.W.2d 578, 579 (Tex.Crim.App.1981), where the court reversed because:
[T]he charge contained certain abstract principles governing the law of aggravated assault, but at no time was there an application of those principles of law to the specific facts of the case.
Because of the emphasis placed on parole during this case, I doubt the jury ignored the parole instruction when it made its decision on punishment. The State told the jury any sentence over 60 years was superfluous and recommended a minimum sentence of 45 years. The jury returned a sentence of 50 years.
Rose I said, “The risk that punishment will be based on extraneous considerations is intolerable in a society that constitutionally demands concepts of fundamental fairness be honored in its criminal justice system.” 752 S.W.2d at 537.
I would reverse and remand this case for a new trial on punishment because I cannot say beyond a reasonable doubt the parole instruction did not contribute to appellant’s punishment. Tex.Code Crim.P.Ann. art. 44.29(b) (Vernon Supp.1989).
. As of March 21, 1989. With all the problems of Rose II, there are some general statements we can make about how this Court decides cases under the Rose II review. After analyzing a data base of all our cases, it is clear the one factor this Court respects more than any other is the finding that the crime was heinous. In all 13 cases in which this Court has determined the crime was heinous, we affirmed. Before today’s case, each of those 13 cases in which the defendant committed a heinous crime, at least one of the other two Rose //factors was present: either the trial court gave the curative instruction or the defendant had a criminal record. Of these, the only published case, Gillian v. State, 766 S.W.2d 867 (Tex.App.—Houston [1st Dist.], n.p.h.) illustrates this point. In Gillian: (1) the trial court did not give the curative instruction, (2) the crime was heinous, and (3) defendant had a criminal record. Id.
. Even the presumption that the jury follows the trial court’s instruction to correct the mistake in the charge does not support this new presumption. See, e.g., Bustillos v. State, 464 S.W.2d 118, 125-26 (Tex.Crim.App.1971) (the trial court corrected a “clerical error” by striking "with a gun” from two paragraphs after the State's argument). The presumption in Bustillos, like the presumption in Gardner, contains elements of mistake and correction that are absent in the new presumption created by Rose II. For exam-pie, in cases like Bustillos, we presume the jury followed the instructions correcting a mistake in the charge because the trial court acknowledges the mistake and makes the correction. When the trial court gave the parole instruction in this case, however, it did not acknowledge a mistake or make a correction. Seconds after the trial court told the jury to consider parole, it told them not to consider parole as to this defendant. I do not believe we can presume the jury followed this kind of instruction.