Arnold v. State

LAGARDE, Justice,

concurring and dissenting.

I concur in the result reached by the majority. I write, however, to dissent to that portion of the majority opinion that concludes that the “important question” of which party has the appellate burden of showing “beyond a reasonable doubt that the error made no contribution to the ... punishment” is unsettled. It is my view that the issue is settled that the State has the burden of showing that constitutional error is harmless beyond a reasonable doubt. See Satterwhite v. Texas, — U.S. —, 108 S.Ct. 1792, 1794, 100 L.Ed.2d 284 (1988); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 828,17 L.Ed.2d 705 (1967); Foster v. State, 687 S.W.2d 65, 66 (Tex.App.—Dallas 1985, pet. ref'd.) citing Jordan v. State, 576 S.W.2d 825, 829 (Tex.Crim.App.1978) (quoting Chapman, 87 S.Ct. at 828). Although the error with which we are concerned here is not eviden-tiary error, it is constitutional error; therefore, I conclude that the above authorities have settled the burden of proof issue and that the State has the burden of showing harmlessness of constitutional error beyond a reasonable doubt.

Having reviewed the record, I conclude that there is nothing to rebut the presumption that the jury followed the court’s instruction not to consider the parole laws. Consequently, I join the majority in concluding that the error was harmless beyond *856a reasonable doubt. TEX.R.APP.P. 81(b)(2). I, too, would affirm.