I respectfully dissent. Rose v. State told us to apply the harm analysis of Tex.R.App.P. 81(b)(2), to determine if there was error in the cases submitted with the parole instruction. 752 S.W.2d 529, 552 (Tex.Crim.App. 1988) (op. on reh'g) (Rose II ). I do not believe the State carried its 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. RoseII, 752 S.W.2d at 554. The Rose II court was particularly impressed with the curative instruction because it was "the judge's last word on the subject." 752 S.W.2d at 554.1
In this case: (1) the trial court did not give the curative instruction, (2) the crime was not heinous, and (3) appellant's only prior convictions were for misdemeanors.
As of March 3, 1989, this Court had reviewed 45 cases 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. This Court has reviewed eight cases in which the crime was not heinous and the defendant did not have a criminal record. In five of those cases, this Court remanded for a new trial on punishment.2
In making the harm analysis, the majority opinion considered that the defense counsel discussed parole in his closing argument. This Court has considered defendant's argument of parole in only two published cases from our Court, with inconsistent results. In Urbano v. State, 760 S.W.2d 33 (Tex.App. — Houston [1st Dist.] 1988, pet. pending), this Court noted that defendant's attorney argued parole, which this Court said was harmful. Id. at 39. InGilliam v. State, 766 S.W.2d 867 (Tex.App. — Houston [1st Dist.] 1989, n.p.h.), this *Page 508 Court interpreted defense counsel's lengthy argument about parole as waiving the error because it was part of his trial strategy.3
I do not believe appellant here or defendant inGilliam invited or waived the constitutional error in the charge when defense counsel mentioned parole.4 I do not believe either of them could waive the error. A defendant cannot accidentally waive an unknown right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). We cannot infer or presume a defendant waived constitutional error. Robles v.State, 577 S.W.2d 699, 703 (Tex.Crim.App. 1979). We must indulge every reasonable presumption against the waiver of constitutional rights. Id.
Appellant could not waive his right to a punishment trial free of a constitutionally defective charge by mentioning parole unless appellant knew the parole instruction was constitutionally defective. At the time this case was tried, this Court believed article 37.07, sec. 4 was constitutional.See Clark v. State, 721 S.W.2d 424 (Tex.App. — Houston [1st Dist.] (where this Court held article 37.07, sec. 4 was constitutional), vacated, 760 S.W.2d 657 (Tex.Crim.App. 1986). If this Court believed article 37.07, sec. 4 was constitutional at the time this case was tried, we cannot fault appellant for acting as if it were constitutional.
In discussing the parole laws, appellant's defense counsel was acting according to the Legislature's expressed intent. The Legislature expected attorneys for the State and the defense to discuss parole in final arguments. Just before the final vote on article 37.07, sec. 4, the following question was addressed to Senator Buster Brown, the bill's sponsor:
Senator: Does your bill have the latitude for the court to be able to tell the jury also that this person's obvious problem, or this person's alleged problem, at sentencing, which is disclosed at sentencing, can be addressed in that system, in that prison system?
Senator Buster Brown: Senator, I think the best way I can answer that is that the bill allows for both the State and the defense to argue on the subject of parole and good time, and — [Emphasis added.]
Senator: O.K. So you in effect allow both the defense and the prosecution to comment on it?
Senator Brown: That's correct.
Senator: O.K. Well that's a far better balanced thing than just a jury instruction as such, one-sided and probably not complete.
Senator Brown: That was the belief of the committee, Senator, in moving the bill out.
(Tex.Leg. 69th Session, [on tape] April 3, 1985.)
Instead of considering the mention of parole by appellant as a factor justifying *Page 509 affirming, I would hold any mention of parole by either the State or the defense was grounds to reverse. If either side discussed parole in argument, I would assume the jury considered the parole laws in their sentence.
Rose II requires a harm analysis, not a fault analysis. 752 S.W.2d at 554. Rose II requires us to decide if the jurors considered parole in assessing punishment. Id. The issue before us is not waiver. That issue was already decided in favor of appellant whenRose II held it was not necessary to object to the charge. 752 S.W.2d at 552-53.
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 recommended a sentence of 50 years, and appellant's counsel argued for probation but in no event more than a 10-year sentence. Defense counsel explained that any sentence over 10 years precluded appellant from probation. The jury returned a sentence of 12 years.
I seriously doubt the jury ignored the parole instruction when it made its decision on punishment. The jury returned a sentence of 12 years, a number divisible by three. The jury knew that any sentence over 10 years meant appellant would serve time in the penitentiary.
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.