dissenting.
I dissent to the majority’s discussion of points one through four regarding the trial court’s refusal to instruct the jury about appellant’s parole ineligibility. The majority maintains that the trial court did not err when it refused to instruct the jury (at appellant’s request) that appellant would be parole ineligible until he had served 35 calendar years in prison. The majority relies on Smith v. State, 898 S.W.2d 838 (plurality opinion) (Tex.Cr.App.), cert. denied — U.S. -, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995) and Jones v. State, 843 S.W.2d 487 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993) in holding that parole is “traditionally not a matter for jury consideration in a Texas capital murder. trial.” Op. at 594.
I have repeatedly insisted that a capital murder defendant’s parole ineligibility for the statutory number of years associated with a life sentence should be presented to the jury. See Braxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995) (Overstreet, J., dissenting), Willingham v. State, 897 S.W.2d 351 (Tex.Cr.App.1995) (Overstreet, J., dissenting), Rhoades v. State, 934 S.W.2d 113 (Tex.Cr.App.1996)(Overstreet, J., dissenting). It is my strong belief that juries should be presented with all relevant information as it pertains to the future dangerousness and mitigation special issues. Relevant information includes the defendant’s parole eligibility or ineligibility. In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the Supreme Court held that the sentencing jury must be informed that a defendant is ineligible for parole where future dangerousness is at issue and the defendant is ineligible for parole. To permit otherwise would violate the defendant’s due process rights. Id.
This Court, however, has limited the application of Simmons and made what I believe to be irrelevant distinctions. In particular, this Court chose to limit the application of Simmons by concluding that it did not extend to defendants facing life imprisonment with the possibility of parole. Smith, supra. Since Texas does not have life without parole, the Court concluded that the trial court’s denial of an instruction regarding parole is not a due process violation under the U.S. Constitution nor a due course of law violation under the Texas Constitution. Smith, supra.
The problem with this rationale is that it overlooks the underlying reasoning in Simmons. In Simmons, the Supreme Court emphasized the fact that juries are often misled or uninformed about parole as it relates to a capital murder case and that this “misunderstanding pervade[s] the jury’s deliberations” and “ereate[s] a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” Simmons, 512 U.S. at 161, 114 S.Ct. at 2193. As a result, the jury is apt to choose death because they fear the defendant may be paroled after a short period of time and would thus be a future danger to society.
Future danger to society is the special issue jurors are trying to decide and in order for them to make a determination regarding whether the defendant would be a future danger to society they must understand and have knowledge of two concepts: future dangerousness and society. Specifically, the jury is attempting to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society!)]” Art. 37.071 § 2(b), V.A.C.C.P. Thus, *602future dangerousness means appellant is inclined to commit future acts of violence that puts society or members thereof at risk.
“Society” presents a challenge because the term in Texas has been held to include free citizens as well as inmates. Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). However, no instruction regarding the definition of society is required and is not given. As such, the jury is forced to rely on the “ordinary meaning” of society which usually encompasses only free citizens. Penry v. State, 691 S.W.2d 636, 653 (Tex.Cr.App.1985). Based upon the ordinary meaning, the jury considers free society when determining the special issue of future dangerousness. This being the case, it would seem logical to inform the jury that society refers to free citizens as well as prison inmates. In order then for a jury to weigh the risk to free citizens, the courts should inform the jury upon request that a capital murder defendant is parole ineligible for many years. Such an instruction is not barred by the constitution and is even allowed in noncapital cases.1 Therefore, it would be fair and reasonable to allow such an instruction so that the jury may make an informed decision based on accurate information on a matter involving life versus death.
It is for these reasons that I respectfully dissent to the majority’s disposition of appellant’s points of error one through four.
. I add that many courts have given the instructions in Texas. See Rhoades v. State, supra (dissenting opinion by Overstreet, J.)