dissenting.
That jurors did receive other evidence and did engage in misconduct during their deliberations in the jury room cannot be seriously disputed. Just that which the opinion of the Court summarizes on page 759 demonstrates that they ignored and disregarded instructions of the trial court intentionally, knowingly and recklessly— and, yes, repeatedly. Yet, appellant is denied a remedy because a majority of this Court has made it virtually impossible for him and any other accused similarly situated “to show reversible error.”
Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), sanctions a violation of their oath by jurors, Article 35.22, V.A.C.C.P., and an infringement of the doctrine of separation of powers by the jury as a body. Sneed v. State, supra, at 267-269 (Odom, J., dissenting), and at 269-270 (Clinton, J., dissenting).
The situation is reminiscent of days when participants in the criminal justice system pretended that parties did not engage in plea bargaining, so they continued the practice without let or hindrance by statutory regulation or rule. Similarly, knowing that jurors are wont to “discuss” the law of parole, even when shown on the record that they have in fact done so judges look the other way lest they see that what was said is other evidence and the discussion is misconduct. And if the fact that there was discussion of parole cannot be thus avoided, then the ambit is to find “conflicting evidence” in the record of hearing of motion for new trial, and solemnly pronounce that “the trial judge is the final word, absent abuse of discretion,” Opinion, p. 760. Call the next case!
*762Once it was accepted that parties were to be trusted to deal with each other at arm’s length, the plea bargaining process was given some measure of respectability by legislative recognition and direction. See Articles 23.16(a)(2) and 44.02, V.A.C.C.P. Let us accept that jurors are reasonable and sensible persons who can be trusted to follow their oath and instructions from the trial court when they are made to understand the reason they are not to discuss parole.
There is a school of thought that jurors fail to take seriously the stock instruction not to consider or discuss possible action of the Board of Pardons and Paroles because they do not understand the policy behind it and, indeed, may well believe that the intent of such an instruction is to hide something from them. (“Well, outside we read and hear about it all the time, so why does the judge tell us not to talk about it in the juryroom?”) It follows that jurors would be better informed and equipped to remove operation of parole laws from consideration during their deliberations if and when they are given a common sense reason for doing so. And the most practical reason from the perspective of a layman is that no one in this State can predict when an inmate will be released on parole, or whether one will ever be released on parole at all!
When the pattern instruction is given the trial court should add an explanation of the reason the matter should not be considered, somewhat along the following lines, viz:
“Further you are instructed that the determination to grant parole, if and when made, rests on many facts and events not now known, for the simple reason that they have not yet occurred at time of trial. Since it cannot be predicted at this time when or even whether parole will be granted, you are not to mention, refer to, discuss or consider how long the defendant might be required to remain confined to serve the' punishment you assess and the sentence the court will impose. Such matters come within the exclusive jurisdiction to be exercised at some time in the future by the Board of Pardons and Paroles, and to some extent by the Governor of this State, and they are beyond the province of courts and, therefore, of the jury as well.”
See Heredia v. State, 528 S.W.2d 847, 853, n. 4 (Tex.Cr.App.1975).
Against a burden of prospective hearings on new trial, appeals, reversals, retrials and successive appeals, the potential benefits of giving a jury accurate and complete information as to the truth of the matter loom large, and any additional chore imposed on administering the criminal justice system at the trial level is minuscule.
Because by adhering to Sneed the majority will not lead the way out of this morass of jury misconduct, I dissent.