Boudreaux v. State

BURGESS, Justice,

dissenting.

I respectfully dissent. The jury instruction mandated by TEX. CODE CRIM. PROC. ANN. art. 37.07(4)(a) (Vernon Supp.1986) denied appellant a fair and impartial trial. TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 1981). The instruction is confusing and internally contradictory. On the one hand, the instruction tells the jury they may consider the existence of parole law and on the other hand informs them they may not consider its manner of application. I agree with Justice Whitham in Rose v. State, 724 S.W.2d 832 (Tex.App.—Dallas 1986, pet. pending) (dissenting and concurring opinion on motion for rehearing) wherein he states:

[T]o instruct jurors to distinguish between the existence ... and the application of the parole law also creates an irreconcilable conflict and ... this irreconcilable conflict misleads jurors as a matter of law.

*233Further, as noted in Justice McGraw’s dissenting opinion in Rose, supra, “[this] statute allows a jury verdict to be based upon mandated law rather than upon evidence presented.” This also denies a defendant a fair and impartial trial. I would reverse and remand this case because the instruction violates the due process provisions of the U.S. CONST, amend. XIV and the TEX. CONST, art. I, sec. 19. Therefore, I must dissent.