dissenting.
Believing that on discretionary review this Court should not concern itself with such trivial matters, particularly when there is no indication that it formed any part of the reason for decision of a court of appeals to overrule the ground of error, but nevertheless being of the view a claim (as identified in the majority opinion) that the trial court denied him a fair and impartial jury by including “Objectives of Law” in its penalty charge is consonant enough with his trial objections to present the issue for appellate consideration, on the basis of my dissenting opinion in Cane v. State, 698 S.W.2d 138, 141 (Tex.Cr.App.1985), I would reject this kind of jury tampering, reverse the judgment of the Beaumont Court of Appeals and of the trial court and remand this cause for a new trial by a jury that is “give[n] such written instructions as may be necessary” 1 for it to discharge its own “responsibility of assessing punishment,” Article 37.07, § 3(b), V.A.C.C.P.2
I respectfully dissent.
TEAGUE, J., joins.
. All emphasis is mine throughout unless otherwise indicated.
. The opinion of the Court does demonstrate frailties of the lead opinion of two judges in Cane. There is more to it than that, however; the lead opinion is unsound internally in that it twists charge rules that govern "distinctly setting forth the law” in order to fit them on "statements of the legislature as to its objectives,” as pertinent excerpts from its rationale reveal, viz:
“Texas law requires that the trial judge charge the jury with the 'law applicable to the case.’ Art. 36.14, V.A.C.C.P. ... Some law is required to be submitted ... while other law is submitted at the discretion of the trial judge, York v. State, 566 S.W.2d 936 (Tex.Cr.App.1978) (admonitory instructions given at discretion of trial court), [emphasis in Cane]
"The objectives of the Penal Code ... in § 1.02, supra, are the clear statements of the legislature as to its objectives in formulating a set of law governs criminal conduct. As such, those objectives arguably cotild be considered relevant to the disposition of any criminal case. An instruction on those objectives_ would be discretionary BECAUSE it does not involve the law applicable to the facts of the *205case. The instruction is simply informational
Cane, at 140. Note that in finding failure to give such an instruction is not error of any kind, York, supra, stated: "The giving of admonitory instructions by the trial court, ‘in order to guard against jury misconduct [described in Article 40.03(3), V.A.C.C.P.],’ is within the sound discretion of the court." Id., at 938.
While the opinion of the Court criticizes the leading opinion in Cane, still the majority now accepts its analysis and conclusion that failing to instruct a jury to consider all (or perhaps just most) “objectives of law" over proper objection may be reversible error, and without objection may be fundamental error. The notion seems to be that once a trial judge decides to exercise discretion to introduce the subject to a jury, ipso facto the judge loses discretion to determine content of that instruction. Effectuating that notion is to compound Cane’s initial assault on reason.