dissenting.
The question in this case on remand concerns TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a) (Vernon Supp.1989). The parole law jury instruction was declared unconstitutional in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). Deeming the unconstitutional statute to be void ab initio, the court determined that an objection to the submission of the instruction is not required to preserve error on appeal. The statute’s unconstitutionality rests on two grounds: denial of due process and violation of the separation of powers doctrine. Since the error is present in this case on appeal, the mandated standard of review for this appellate court is set out in TEX.R. APP.P. 81(b)(2):
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
The conviction in the present case is for delivery (not possession) of marihuana (more than four ounces). The jury was instructed that the range of punishment was imprisonment for a term of not more than twenty years nor less than two years and a fine not to exceed $10,000.00. In addition, the jury received instructions on probation with the terms set out within the *930jury charge. Punishment was assessed at fifteen years’ imprisonment but no fine.
The facts show that appellant was a 46 year-old man who was living with his girlfriend, Tammy Ford. She was employed at an ice house-bar. An acquaintance of theirs (the informant) accompanied an undercover agent, who was an investigator of the Texas Department of Public Safety, to the ice house to negotiate a marihuana purchase. When appellant testified, he indicated he happened to be present in the place but did not participate in the actual discussion of the arrangement to buy. He said he did not hear the conversation.
A short while later the informant and the undercover agent waited for the delivery (sale) on a little used road leading to Luck-enbach. Appellant arrived driving Ford’s van. The agent testified that another man accompanied appellant but he did not see Ford at all. After ascertaining who the persons were, appellant went back to the van and retrieved a paper bag. He handed it to the agent, who paid appellant the sum of $200.00 for it. Appellant represented to the agent that the marihuana was “real good.”
The agent testified that he asked the informant where he could contact “the marihuana source” and “that’s where he took me” (the ice house). He said he instructed the informant, “If the person had something, you know, marihuana for sale, then to come back or make a deal and come back and talk to me.” The agent waited in the car outside the ice house for the informant to make the deal.
Appellant testified that the marihuana in this case was kept in the living room of the mobile home where he and Ford lived. He said that it came from Austin where he and Ford obtained it. He stated he could not recall the name of the individual from whom they got it. He indicated it was for their personal use.
The jury learned that the motion to revoke the informant’s probation (D.W.I.) had been dismissed earlier. They learned that the informant had helped to cause two criminal charges to be filed, including the present case. They heard appellant testify that he did not set up the present delivery deal, that Ford did, and that he merely accommodated her by giving the paper bag of marihuana to the agent. The jury could consider all these facts and circumstances in arriving at their decision. In jury argument they were further cautioned by both the prosecutor and defense counsel to consider the facts and circumstances brought out in the guilt/innocence phase of the trial. The defense counsel said:
... I find some fault in perhaps the difference in consideration afforded [the informant] and that we’re working on here today. But that’s not something the law enforcement officers did at that time, but I think it’s something you need to think about in punishment. How did this deal come down? Who set it up? Who negotiated it? Why did it ever come into making? The Defendant’s no doubt guilty. But those are the facts and circumstances you should consider
Defense counsel reminded the jury that the informant had been convicted of possession of marihuana and D.W.I. and had his pending motion to revoke probation dismissed. Defense counsel directed his argument to the granting of probation for appellant.
At one point in jury argument the prosecutor said:
It’s obvious now that the defendant has been convicted, that he is certainly willing to accept these terms of probation. There again, look at the entire case and the circumstances. The third page [of the charge] deals with the parole laws, and it’s very easy to understand I believe. If you read this, the last paragraph on that page talks about the fact that you may consider the existence of the parole law and good conduct time. It talks about one-third of the sentence imposed. [The argument continued outlining each paragraph and page and the verdict forms. There was no further mention of parole law.]
The statutory curative instructions as to parole laws given to the jury were:
It cannot accurately be predicted how the parole law and good conduct time might *931be applied to this Defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular Defendant. You are not to consider the manner in which the parole law may be applied to this particular Defendant.
Certain factors in each case may be considered to determine whether the error in giving the parole law jury instruction was harmless error. The Rose opinion suggests these: whether curative instructions were given to the jury; whether the facts of the case militate in favor of the sentence imposed, and whether the appellant has a criminal record. In this case appellant had no criminal record. It is also plain that Rose does not set a rigid and limited test to determine harmless error. In this case the jury was charged extensively on the law of probation, and the defense centered its evidence and main argument on this possible punishment. The prosecutor asked for “fifteen years and one day.”
Each case will be examined on a case-by-case basis. When we consider the statutory cautionary instructions which we must presume the jury followed, the admonition by both the prosecutor and defense to consider the facts and circumstances of this case, the evidence of the delivery of the contraband, and the possible range of punishment (20 years), we should conclude that the statutory parole law instruction did not affect appellant’s sentence. We therefore should find beyond a reasonable doubt that the error in the trial court’s instruction to the jury on the parole law did not contribute to the punishment in this case.
The judgment should be affirmed. I respectfully dissent.