I dissent once again in a Rose case that affirms the judgment. It is inconceivable that the jury did not consider the parole instruction. The Court of Criminal Appeals has told us to assume that it did.
In Arnold v. State, 786 S.W.2d 295, 298 (Tex.Crim.App. 1990), the court said that the harm analysis should be based on the premise that the jury will consider the existence of parole, and assess a term of years it believes will ensure that the defendant serves more than the minimum term regardless of what the prison officials later decide. Id. at 300. And,
Id.With that premise, a reviewing court must examine the record for indicia of factors reasonably conducing to affect minds of average rational jurors in their determination of punishment, the ultimate inquiry being whether it is impossible to say beyond a reasonable doubt that considering declarations made by the trial court in its Sec. 4 instruction law did not influence the jury adversely to appellant in assessing punishment.
The purpose of instructing the jury with the parole charge is to tell them the consequences of the parole laws. We tell them how the sentence may be reduced by parole and good time in order for them to take that into account when they assess the sentence of the defendant. Then, to cure the error, we tell them not to consider it.
The parole instruction states:
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.
The instruction is simple hypocrisy. The only duty the jurors have at the punishment *Page 759 stage is to assess the punishment of "this particular defendant." There is nothing else we ask them to do. To tell the jurors that they may consider the existence of parole and good time, and then tell them not to consider how the parole law will be applied to this defendant is a form of official dishonesty.
I ask the reader to imagine that his or her child is arrested for driving while intoxicated. Further, I ask the reader to assume the attitude that when found guilty, the child should be punished, but that the punishment ought to be fair. Would you consider any punishment assessed against your child fair after the jury is told that as much as one-third of the sentence may never be served? I do not believe you would. If it is not fair for your child, it cannot be fair for any other person's child.
The instruction on parole and good time is not fair. As a society that prides itself in fairness, we should not pretend that we can give the jury information that is prejudicial, then cure the prejudice one sentence later by telling the jury to ignore what we just told it. *Page 935