dissenting.
I respectfully, but vigorously dissent. This case places before us the most singularly important question raised in all cases where the harmless error analysis is appropriate, i.e., which party has the appellate burden under the “unless” clause contained in TEX.R.APP.P. 81(b)(2). I am compelled to write because the majority completely avoids addressing this vital issue. Instead, the majority converts the Court to a fact finding body, finds harmless error in evidence of appellant’s prior record, and the majority’s emotional revulsion to the heinous nature of this crime, and disregards important factors in the record.
I recognize that the facts of this case are particularly shocking. Yet, this is no more, or should be no more, than one of many factors to be considered in arriving at the decision we are called on to make in complying with the mandate on this remand. We cannot lose sight of the overriding concept that the rule of law must prevail in all such matters. To allow clear reasoning to become clouded by emotion or concern over the outcome is to succumb to the rule of the mob.
The Court of Criminal Appeals has remanded this case to this Court for the sole purpose of conducting a harm analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure which provides:
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 contri*589bution to the conviction or to the punishment.
We are, therefore, instructed that unless we determine, beyond a reasonable doubt, that the submission of the unconstitutional charge made no contribution to the conviction or the punishment assessed by the jury, we shall reverse the judgment. Our analysis does not address the issue of harm in the conviction, therefore, we focus on punishment.
We begin our analysis with it having already been determined by the Court of Criminal Appeals that error did occur when the court gave the charge to the jury as mandated by article 37.07, section 4, of the Texas Code of Criminal Procedure, more recently referred to as a Rose error. See Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987).
Consequently, error having occurred, the rule goes on to instruct us that “the appellate court shall reverse the judgment under review, unless ...” (emphasis added). We now must determine which party has the burden under the “unless” clause. In short, does the “unless” clause put the appellate burden on the State to show that an error was harmless or does the “unless” clause put the appellate burden on the appellant to show harm. The issue is important because it will determine the outcome of most cases involving Rose error.
On this important issue, our sister courts of appeal have reached different conclusions. In Caraveo v. State, 752 S.W.2d 18, 19 (Tex.App.—Fort Worth 1988, no pet.), it was held “of course it was up to the State to prove beyond a reasonable doubt that the error was harmless.” In Herring v. State, 752 S.W.2d 169, 174 (Tex.App—Houston [1st Dist.]), rev’d, 758 S.W.2d 283 (Tex.Crim.App.1988), that court of appeals agreed. “We interpret rule 81(b)(2) to put the burden on the State to show that an error was harmless. This seems appropriate where the court, over objection, has applied an unconstitutional statute.”
Nevertheless, the court in Herring held that the appellant had the burden of showing harm because of the then existing decisions of the Court of Criminal Appeals. Thus, Herring, relied upon Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987); Almanza v. State, 686 S.W,2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g); and LaPoint v. State, 750 S.W.2d 180 (Tex.Crim.App.1988) (op. on reh’g). Herring, 752 S.W.2d at 174. All of these opinions preceded Rose on rehearing. See Rose, 752 S.W.2d at 552. Therefore, relying on these decisions, the court in Herring concluded that “[although we would hold that rule 81(b)(2) requires the State to prove that the error was harmless, we must follow Rose, Almanza, and now LaPoint. Appellant had the burden to show ‘some’ harm and has not done so.”
Upon remanding, Herring v. State, 758 S.W.2d 283, 284 the Court of Criminal Appeals pointed out that the harm analysis had been conducted by that Court of Appeals under the Almanza standard and without the benefit of the rehearing opinion in Rose. Therefore, the case was returned for the now appropriate analysis in this situation under TEX.R.APP.P. 81(b)(2).
In Foster v. State, 687 S.W.2d 65 (Tex.App.—Dallas 1985), this court made a similar harm analysis using the test set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the forerunner of Rule 81(b)(2). The Foster court stated: “We must now determine whether the State has met its heavy burden of demonstrating that this error was harmless.” Although not a “Rose” error as such, the error was a constitutional error of the admission of the fruits of an illegal arrest. The court held, “Applying this test, we are unable to determine beyond a reasonable doubt that this error was harmless.” Foster, 687 S.W.2d at 66.
Consequently in all cases of “Rose ” error, I would hold that the burden is on the State to show the error was harmless, and examine the entire record in that light. While doing so, we are ever mindful of the comments of Justice Teague:
I strongly suggest to the members of the courts of appeals that any time the issue is presented the members of the court of appeals make a careful harmless error analysis. Whether the error will or will *590not constitute harmful error will, of course, as here, be dependent upon the peculiar facts of the case. The facts here that went to punishment would easily warrant any rational trier of fact to assess appellant’s punishment at life imprisonment. As far as harmless error goes, I have viewed that issue from the standpoint of the facts that went to the assessment of life imprisonment. I caution the members of the courts of appeals: When it comes to deciding whether the error was harmless, not all cases are going to nicely fit the facts of this case. (Emphasis added).
Rose, 752 S.W.2d at 557. In Rose, 752 S.W.2d at 554, the Court of Criminal Appeals considered three circumstances which were apparent from the record in that case in reaching the conclusion from its rule 81(b)(2) harm analysis that the offending instruction did not contribute to appellant’s sentence. First, the court noted the existence of a “curative instruction” in the charge following the Rose charge. Rose, 752 S.W.2d at 554. Second, the court observed that the facts militated in favor of a harsh sentence, and third, appellant’s prior record.
It is apparent from the record in this case, that the facts would militate in favor of a harsh sentence and that appellant’s prior record would likely contribute to the jury’s assessment of punishment. There are, however, two additional and distinguishing, glaringly apparent factors in this record which I cannot overlook in this analysis as the majority seems to have done. The charge in this case did not contain the “curative instruction” that played such a vital role in the Rose decision on rehearing. Rose, 752 S.W.2d at 554. The second and most obvious distinguishing factor is that in this case, the jury sent out a note during their deliberation which asked the question, “What is the earliest possible parole on a life sentence?” The court’s reply was not an admonishment as characterized by the majority but was an additional and supplemental instruction to the jury to use the unconstitutional charge to answer their question. Therefore, we have a direct instruction from the court to use the statutorily mandated, unconstitutional charge as the method to resolve their quandary and to ascertain or compute the earliest possible parole on a life sentence. This could only reinforce and encourage the jury to do exactly that and to utilize the time calculations set out in the offending charge in assessing punishment.
We generally presume, although the presumption is rebuttable, that a jury follows the instructions given by the trial judge, in the manner presented. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). See also, in the context of instructions to disregard, Nichols v. State, 754 S.W.2d 185, 199 (Tex.Crim.App.1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.) cert. denied, — U.S. —, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987).
Here, the judge flatly told the jury to use the information in the charge concerning parole in assessing this particular appellant’s punishment. This is particularly significant because this was the judge’s last word on the subject.
This communication from the jury and the nature of the court’s response is very strong evidence that the unconstitutional charge did in fact make a contribution to the punishment. I would, therefore, hold that the unconstitutional charge made a contribution to the punishment assessed in this case. Any other conclusion flies in the face of logic and common sense.
In spite of the grossly brutal facts in this case, I would have to presume harm. The State offers nothing to rebut this presumption nor brings forward any suggestion or evidence that the error was harmless. Therefore, the State totally fails to meet its burden.
Consequently, I am unable to find, beyond a reasonable doubt, that this unconstitutional charge made no contribution to the punishment. I would reverse the judgment and remand the case to the trial court pursuant to article 44.29 of the Texas Code of Criminal Procedure.