dissenting.
Appellant’s eighth point of error alleges that “the trial court erred in overruling appellant’s requested instruction in the jury charge regarding the minimum time served for a life sentence assessed for the offense of capital murder.” Point number four asserts that if Article 37.07, V.AC.C.P. “was properly interpreted as preventing the trial court from fully informing the jury of the statutory sentencing provisions for capital murder, the section violated the due process rights afforded by the Fourteenth Amendment to the United States Constitution and Article I, Sections 13 and 19 of the Texas Constitution.” Both points complain about the trial court’s refusal to inform the jury that a life sentence after conviction of capital murder statutorily required service of 35 years incarceration before becoming eligible for parole. The majority concludes that “the trial court did not err when it refused to give a parole instruction.” Rhoades v. State, 934 S.W.2d 113, 128 (Tex.Cr.App.1996). I respectfully disagree and believe that appellant was entitled to his requested instruction informing the jury that he would not be eligible for parole for 35 years if he received a life sentence.
Appellant sought to inform veniremembers about the statutory requirement of 35 years incarceration before becoming eligible for parole, but the trial court refused to allow such and instead granted the State’s motion in limine restricting the discussion of such during voir dire. Appellant points out that he presented testimony from a psychologist that the risk level for violence decreases with age and that a 65-year-old inmate’s risk level would have gone way down from whatever it may have been before and should approximate that of the general population. He suggests that such testimony had no relevant meaning to the jury on the issue of future dangerousness, nor could it be given any mitigating effect, without the jury’s knowledge of the mandatory 35 years.
After the close of evidence at punishment, appellant requested that the jury charge include an instruction informing the jury that he would have to serve a mandatory 35 years *132before becoming eligible for parole and objected to the jury charge not including an instruction as to such. The trial court refused to include such an instruction.
The State does not specifically dispute the fact that pursuant to Article 42.18, § 8(b)(2), V.A.C.C.P., had appellant been sentenced to life rather than death for the instant offense he would indeed have been legally required to serve 35 years incarceration before becoming eligible for parole. However, the State asserts that the law prohibits a jury from being informed of the statutorily-mandated minimum amount of time that a person convicted of capital murder, who receives a life sentence, must serve before becoming eligible for parole. However, while Art. 37.07, § 4, V.A.C.C.P., provides for the jury to be informed of various matters as to parole eligibility in non-capital punishment proceedings, by its language it does not even apply to capital punishment proceedings; thus it does not prohibit such information from being provided to juries in capital proceedings. Appellant correctly notes that Art. 37.07, § 4 does not prohibit the trial court from including information about the requirement of serving 35 calendar years before becoming eligible for parole in the punishment jury charge of a capital murder case, but rather requires an appropriate instruction in non-capital felony cases.
A. Texas cases
First, I shall examine Texas eases, prior to Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995) (plurality opinion), cert. denied, 510 U.S. 997, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), on this and related issues. This Court has held that a trial court properly refused to instruct the jury at the punishment stage of a capital murder trial on the parole laws in Texas. Elliott v. State, 858 S.W.2d 478, 490 (Tex.Cr.App.1993), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993); see also Hughes v. State, 897 S.W.2d 285, 300-01 (Tex.Cr.App.1994). In Elliott the defendant claimed the denial of the instruction violated the Eighth and Fourteenth Amendments to the United States Constitution, relying on California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), and King v. Lynaugh, 828 F.2d 257 (5th Cir.1987), vacated in part, 850 F.2d 1055 (5th Cir.1988)(en banc). We observed that neither this Court nor the Fifth Circuit had interpreted California v. Ramos as requiring an instruction on parole laws in the punishment phase of a capital case. Elliott, 858 S.W.2d at 490. While recognizing that Fifth Circuit opinions have no precedential value for this Court, we were persuaded by the en banc opinion in King v. Lynaugh which found no federal constitutional requirement for such an instruction.1 Elliott, 858 S.W.2d at 490. This Court quoted from the Fifth Circuit’s en banc opinion stating that in California v. Ramos the Supreme Court determined that a jury instruction on a capital defendant’s eligibility for parole or commutation of sentence does not raise a constitutional issue. Elliott, 858 S.W.2d at 490, citing King v. Lynaugh, 850 F.2d at 1061. Additionally, we determined that an instruction on parole in a capital case would violate Article 4, section 11, of the Texas Constitution. Elliott, 858 S.W.2d at 489, n. 7; see also Garcia v. State, 887 S.W.2d 846, 860 (Tex.Cr.App.1994), cert denied, - U.S. -, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).
Even before Elliott this Court consistently rejected arguments that the trial court should instruct the jury about parole in the context of a life sentence for capital murder. Boyd v. State, 811 S.W.2d 105, 130 (Tex.Cr.App.1991), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991); Knox v. State, 744 S.W.2d 53, 62-64 (Tex.Cr.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988); Andrade v. State, 700 S.W.2d 585, 587-88 (Tex.Cr.App.1985), cert. denied, 475 U.S. 1112, 106 S.Ct. 1524, 89 L.Ed.2d 921 (1986).
*133Similarly we have held that a defendant in a capital case is not permitted to present evidence of parole procedures applicable to life sentences for capital murder. Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992). See also Stoker v. State, 788 S.W.2d 1, 16 (Tex.Cr.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990) (no error in failing to appoint expert to testify on issue of parole in a capital case). In Jones the defendant sought to introduce evidence that he would be confined a minimum of twenty years.2 Jones argued that the jury should be aware of the length of time he would have to be confined in prison so the jury could intelligently decide whether he was a continuing threat to society.3 This Court stated that a jury should not consider parole during punishment deliberation in a capital murder case. Jones, 843 S.W.2d at 495. Jones also attempted to present expert testimony showing he would never be paroled, arguing that he would never be a threat to society. We observed that “society” includes prison inmates as well as free citizens, so the length of time a person remains incarcerated was not relevant to the special issue on future dangerousness. Id.
We have held that a trial court does not err in a capital murder trial by instructing the jury not to consider how long a defendant would be required to serve to satisfy a life sentence, because parole is not a proper consideration for the jury’s deliberations at punishment. Ramirez v. State, 815 S.W.2d 636, 653 (Tex.Cr.App.1991); Williams v. State, 668 S.W.2d 692, 701 (Tex.Cr.App.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 545 (1984).
In voir dire, prospective jurors may not be told about the specifics of parole law relating to life sentences for capital murder. Boyd, 811 S.W.2d at 118-19. A potential juror who is unable to disregard parole in determining the special issues is challengeable for cause. Felder v. State, 758 S.W.2d 760, 762-67 (Tex.Cr.App.1988).
The constant in these Texas cases has been that parole is not a proper matter for consideration in the jury’s deliberation in the punishment stage of a capital murder trial. This was due primarily to two reasons: (1) prior to the 1989 amendment of Art. IV, § 11 of the Texas Constitution, parole was never a proper matter for the jury to consider in Texas4; and (2) until recently, the United States Supreme Court had never held that there was a federal constitutional requirement that the jury ever be given any information about parole. See California v. Ramos, supra.
B. Simmons v. South Carolina
In a supplemental brief appellant points out that the Supreme Court recently issued its opinion in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Appellant argues that under Simmons the failure to inform the jury of when he would be eligible for parole violated the Due Process Clause and the Eighth Amendment of the United States Constitution.
In Simmons, because of prior convictions for violent crimes, the defendant would have been ineligible for parole if he were given a life sentence. Simmons, 512 U.S. at-n. 2, 114 S.Ct. at 2191 n. 2, 129 L.Ed.2d at 139 n. 2. Before jury selection, the trial court granted the prosecutor’s motion, over Simmons’ objection, and ordered the defense not to voir dire the venire about parole or even mention the subject of parole. In the punishment phase, the prosecutor asked the jury to consider Simmons’ future dangerousness. In response, Simmons presented evidence *134that he would not commit acts of violence once he was isolated in a prison setting. Simmons’ attorney asked the trial court to instruct the jury that Simmons would be ineligible for parole and, if sentenced to life imprisonment, he in actuality would be sentenced to imprisonment for the balance of his natural life.
Outside the presence of the jury, Simmons presented evidence showing he was ineligible for parole. There was evidence from Simmons and the prosecution about furloughs and early release programs. Simmons offered results of a survey showing that few people in South Carolina believed that a person sentenced to life imprisonment actually would spend the rest of his life in prison; that almost half believed a convicted murderer might be paroled within twenty years; that almost three-fourths believed a convicted murderer would be released within thirty years; and that more than three-fourths said that if they had to decide a sentence in a capital case, the amount of time the defendant actually would have to spend in prison would be either extremely important or very important in choosing between life and death. The trial court denied Simmons’ request for an instruction.
During deliberation the jury sent a note to the judge inquiring about the possibility of parole for a life sentence. Over Simmons’ objection the trial court instructed the jury not to consider parole or parole eligibility. The court also informed the jury that life imprisonment and death sentence were to be understood in their plain and ordinary meaning. The jury returned a sentence of death.
The Supreme Court held that when a defendant’s future dangerousness is an issue and the defendant is ineligible for parole, due process requires that the jury assessing punishment be told that about the defendant’s parole ineligibility.5 Simmons, 512 U.S. at -, 114 S.Ct. at 2190, 129 L.Ed.2d at 138. “The Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” Simmons, 512 U.S. at-, 114 S.Ct. at 2192, 129 L.Ed.2d at 141, citing Gardner v. Florida, 480 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977). The Court observed that the jury may have believed Simmons could be released on parole if he were not executed. The Court noted:
To the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility, and by the State’s repeated suggestion that petitioner would pose a future danger to society if he were not executed.... The State thus succeeded in securing a death sentence on the ground, at least in part, of petitioner’s future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its non-capital sentencing alternative, namely, that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process.
Simmons, 512 U.S. at -, 114 S.Ct. at 2193, 129 L.Ed.2d at 141. The Court further observed:
[Petitioner was prevented from rebutting information that the sentencing authority considered, and upon which it may have relied, in imposing the sentence of death. The State raised the specter of petitioner’s future dangerousness generally, but then thwarted all efforts by petitioner to demonstrate that, contrary to the prosecutor’s intimations, he never would be released on parole and thus, in his view, would not pose a future danger to society. The logic and effectiveness of petitioner’s argument naturally depended on the fact that he was legally ineligible for parole and thus would remain in prison if afforded a life sentence. Petitioner’s efforts to focus the jury’s attention on the question whether, in prison, *135he would be a future danger were futile, as he repeatedly was denied any opportunity to inform the jury that he never would be released on parole. The jury was left to speculate about petitioner’s parole eligibility when evaluating petitioner’s future dangerousness, and was denied a straight answer about petitioner’s parole eligibility even when it was requested.
Simmons, 512 U.S. at-, 114 S.Ct. at 2194-95, 129 L.Ed.2d at 143-44 (footnote omitted).
The Supreme Court observed in Simmons that “prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendant’s future dangerousness in their evidence and argument at the sentencing phase; they urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison.” Simmons, 512 U.S. at-, 114 S.Ct. at 2193, 129 L.Ed.2d at 142, citing Eiseberg & Wells, “Deadly Confusion: Juror Instructions in Capital Cases,” 79 Cornell L.Rev. 1, 4 (1993). Moreover, “[i]n assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.” Simmons, 512 U.S. at -, 114 S.Ct. at 2194, 129 L.Ed.2d at 142.
The Supreme Court noted in Simmons that the State may still argue that a parole ineligible defendant would be a future danger to others in prison, “[b]ut the State may not mislead the jury by concealing accurate information about the defendant’s parole ineligibility. The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution’s arguments of future dangerousness with the fact that he is ineligible for parole under State law.” Simmons, 512 U.S. at-n. 5, 114 S.Ct. at 2194-95 n. 5, 129 L.Ed.2d at 143-44 n. 5.
South Carolina argued in Simmons that there was no statutory prohibition of Simmons’ eventual release into society and that he could be released through legislative reform, commutation, and clemency. Simmons, 512 U.S. at-, 114 S.Ct. at 2195, 129 L.Ed.2d at 144. The Court rejected this argument because the instruction sought by Simmons was legally accurate and was certainly more accurate than no instruction at all. Simmons, 512 U.S. at-, 114 S.Ct. at 2195.129 L.Ed.2d at 144.
The Court distinguished Simmons from California v. Ramos. The Court explained that Ramos indicates the Supreme Court generally defers to a State’s determination about what parole information should be provided to a jury. The Court continued:
But if the State rests its case for imposing the death penalty at least in part on the premise that the- defendant will be dangerous in the future, the fact that the alternative sentence to death is life without parole will necessarily undercut the State’s argument regarding the threat the defendant poses to society. Because truthful information of parole ineligibility allows the defendant to “deny or explain” the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury’s attention by way of argument by defense counsel or an instruction from the court.
Simmons, 512 U.S. at -, 114 S.Ct. at 2196.129 L.Ed.2d at 145-46.
Consequently, the Supreme Court found Simmons’ right to due process was violated because his future dangerousness was at issue but he was not allowed to inform the jury of his parole ineligibility. Simmons, 512 U.S. at --•, 114 S.Ct. at 2198, 129 L.Ed.2d at 147.
C. Applicability of Simmons to Texas Capital Punishment Scheme
i. Statutes
In Texas, the jury must answer the following special issue:
Whether there is a probability that the defendant would commit criminal acts of *136violence that would constitute a continuing threat to society.
Art. 37.071, § 2(b)(1), V.A.C.C.P.6 Under the statute in effect for the date of this offense:
If a prisoner is serving a life sentence for a capital felony, the prisoner is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 35 calendar years.
Former Art. 42.18, § 8(b)(2), V.A.C.C.P.7
ii. Discussion of Texas Capital Sentencing in Simmons
In Simmons the Supreme Court noted that Texas does not have a life-without-parole sentencing alternative to capital punishment. Simmons, 512 U.S. at-n. 8, 114 5.Ct. at 2196 n. 8, 129 L.Ed.2d at 145 n. 8. The Court said, “In a State in which parole is available, how the jury’s knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole.” Simmons, 512 U.S. at -, 114 S.Ct. at 2196, 129 L.Ed.2d at 145. Justice -O’Connor’s concurring opinion observed that in a State in which parole is available there is no constitutional requirement that the jury be informed about the parole law. Simmons, 512 U.S. at-, 114 S.Ct. at 2200, 129 L.Ed.2d at 150.8
iii. “Society” under the Texas Special Issue
The Supreme Court has observed that “the question of a defendant’s likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue.” Franklin v. Lynaugh, 487 U.S. 164, 169 n. 9, 108 S.Ct. 2320, 2330 n. 9, 101 L.Ed.2d 155, 169 n. 9 (1988). According to Justice O’Con-nor, a Texas capital sentencing jury may give mitigating effect to evidence of the lack of any prison disciplinary record, as this is evidence that the defendant can exist in the highly structured environment of a prison without endangering others. Franklin v. Lynaugh, 487 U.S. at 186, 108 S.Ct. at 2333-34, 101 L.Ed.2d at 174 (O’Connor, J., concurring). However, this is only one facet of the term “society” in the special issue.
This Court has examined the meaning of “society” as used in the special issue in several cases. See, e.g., Rougeau v. State, 738 S.W.2d 651 (Tex.Cr.App.1987), cert. denied, 485 U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901 (1988), overruled on other grounds, Harris v. State, 784 S.W.2d 5 (1989). The defendant in Rougeau contended the prosecutor was improperly allowed to comment that society within the meaning of the special issue in-*137eludes prison society. We stated that a juror is free to give the term “society” the meaning that is ordinarily acceptable in common language. Id. at 660. This Court held that “society” includes the penitentiary, and the prosecutor properly attempted to learn whether prospective jurors would exclude from “society” inmates and non-inmates within the Texas Department of Corrections. Id. In this context we observed, “It is obvious to us that in deciding whether to answer the second special issue in the negative the jury would clearly focus its attention on the ‘society’ that would exist for the defendant and that ‘society’ would be the ‘society’ that is within the Texas Department of Corrections.” Id. (emphasis in original). See also Boyd, 811 S.W.2d at 118 n. 12.
In another ease, the defendant contended the prosecutor’s argument, that the defendant would commit another murder, was a comment that the defendant would be paroled at some point. Sterling v. State, 830 S.W.2d 114 (Tex.Cr.App.1992), cert. denied, 506 U.S. 1035, 113 S.Ct. 816, 121 L.Ed.2d 688 (1992). This Court held that the argument did not necessarily imply that the defendant would be paroled, but that he would commit another murder in prison. Id. at 120-21. However, we noted that the term “society” as used in the special issue includes both inmate and non-inmate populations. Id. at 120 n. 5. See also Boyd, 811 S.W.2d at 121 (“Appellant fails to cite us to a single case which arguably supports his theory that a potential juror’s ‘view is supposed to be that a defendant sentenced to life will serve the rest of his life in prison.’ ”).
“ ‘[Sjociety’ includes not only free citizens but also inmates in the penitentiary.” Jones, 843 S.W.2d at 495. Under the special issue, the State must show the defendant “would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society whether in or out of prison.” Muniz v. State, 851 S.W.2d 238, 250 (Tex.Cr.App.1993) (emphasis added), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993).
iv. Application of Simmons ’ Rationale to Texas Capital Sentencing Scheme
There is an obvious distinction between the facts in Simmons and in the present case. In Simmons the defendant was not eligible for parole under a life sentence, whereas in this case had appellant received a life sentence, he would have been eligible for parole after thirty-five years.9 However, a review of Simmons leads me to conclude that the underlying rationale of that case compels a similar result under our statutoiy sentencing scheme.
In a capital trial, a defendant is entitled to offer evidence concerning recidivism rates relating to length of incarceration and age of the offender, along with expert opinion through hypothetical questions based on the particular circumstances of the individual defendant. Matson v. State, 819 S.W.2d 839, 848-54 (Tex.Cr.App.1991). Rehabilitation is obviously a proper consideration under the pertinent special issue. Jackson v. State, 822 S.W.2d 18, 25 (Tex.Cr.App.1990), cert. denied, 509 U.S. 921, 113 S.Ct. 3034, 125 L.Ed.2d 722 (1993).
In answering the special issue, a Texas jury must determine whether the defendant would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society whether in or out of prison. Muniz, 851 S.W.2d at 250. “Society” means both free citizens and people in prison. Jones, 843 S.W.2d at 495.
Under the facts of a given case, the jury may well believe that a defendant does not pose a threat to prison society due to the regimented environment, but that the defendant may be a future danger to society outside of prison. However, under our previous case law, the jury is not allowed to know that such a defendant would not be released into society outside of prison for a minimum of thirty-five years. This would be particularly useful information if a jury believed a defendant would not be a future danger to society *138within prison, would currently present a threat to society outside of prison if he were eligible for release anytime soon, but could be rehabilitated in prison to where he would not be a danger to society outside of prison thirty-five years in the future. Without knowing that a capital murderer sentenced to life is ineligible for parole until serving at least thirty-five years, the jury does not have all of the relevant information available on the issue. “In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.” Simmons, 512 U.S. at -, 114 S.Ct. at 2194, 129 L.Ed.2d at 142.
When the prosecution relies on the future dangerousness of the defendant to seek the death penalty, elemental due process requires that the defendant be given an opportunity to introduce evidence on this point. Skipper v. South Carolina, 476 U.S. 1, 5 n. 1, 106 S.Ct. 1669, 1671 n. 1, 90 L.Ed.2d 1, 7 n. 1 (1986). In Skipper the Court also found an Eighth Amendment requirement. “[E]vi-dence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.” Skipper, 476 U.S. at 5, 106 S.Ct. at 1671, 90 L.Ed.2d at 7. “[A] defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.” Skipper, 476 U.S. at 7, 106 S.Ct. at 1672, 90 L.Ed.2d at 8. If a rule has “the effect of precluding the defendant from introducing otherwise admissible evidence for the explicit purpose of convincing the jury that he should be spared the death penalty because he would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment, the rule would not pass muster under Eddings [v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ].” Skipper, 476 U.S. at 7, 106 S.Ct. at 1672, 90 L.Ed.2d at 8.
The Texas death penalty statute is constitutional, premised on the jury having all possible relevant information about the individual defendant. Matson, 819 S.W.2d at 850, citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). A jury must not be instructed to disregard relevant mitigating evidence. Matson, 819 S.W.2d at 850 n. 8, citing Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). “Clearly then, for the Texas death penalty statutes to meet constitutional muster, the sentencing authority in a capital case must be allowed to consider and give effect to all relevant mitigating evidence.” Matson, 819 S.W.2d at 851.
It would be difficult at best for a jury to give effect to the type of evidence authorized in Matson, rehabilitation and recidivism rates, without knowing that the defendant will remain incarcerated for at least thirty-five years before even being considered for placement back into society outside of prison. The problem associated with this lack of information provided to a jury is exacerbated by general, though not always accurate, knowledge of the existence of parole.
In Simmons the Supreme Court reviewed the question of whether the trial court’s instruction, that life imprisonment was to be understood in its plain and ordinary meaning, adequately instructed the jury about Simmons’ parole ineligibility. The Court capsulized the history of parole and juries in the United States:
It can hardly be questioned that most juries lack accurate information about the precise meaning of “life imprisonment” as defined by the States. For much of our country's history, parole was a mainstay of state and federal sentencing regimes, and every term (whether a term of life or a term of years) in practice was understood to be shorter than the stated term.... [I]t is impossible to ignore “the reality, known to the ‘reasonable juror,’ that, historically, life-term defendants have been eligible for parole.”
An instruction directing juries that life imprisonment should be understood in its “plain and ordinary” meaning does nothing to dispel the misunderstanding reasonable jurors may have about the way in which any particular State defines “life imprisonment.” See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (where there is a “reasonable likelihood that the jury has applied the *139challenged instruction in a way that prevents the consideration of constitutionally relevant evidence,” the defendant is denied due process).
Simmons, 512 U.S. at -, 114 S.Ct. at 2197, 129 L.Ed.2d at 146 (citations omitted).
The Supreme Court addressed South Carolina’s argument that the jury was not misled, as the trial court admonished the jury not to consider parole and that parole is not a proper issue for the jury’s consideration.
Far from ensuring that the jury was not misled, however, this instruction actually suggested that parole was available but that the jury, for some unstated reason, should be blind to this fact. Undoubtedly, the instruction was confusing and frustrating to the jury, given the arguments by both the prosecution and the defense relating to petitioner’s future dangerousness, and the obvious relevance of petitioner’s parole ineligibility to the jury’s formidable sentencing task. While juries ordinarily are presumed to follow the court’s instructions, we have recognized that in some circumstances “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”
Simmons, 512 U.S. at -, 114 S.Ct. at 2197, 129 L.Ed.2d at 147 (citations omitted).
Although Simmons involved the failure to inform jurors that the defendant would not be eligible for parole under a life sentence, a jury in Texas faces a similar dearth of information when it comes to intelligently answering the special issue referencing the probability that a defendant would commit criminal acts of violence that would constitute a continuing threat to society outside of prison.
In Texas, this Court has observed it is common knowledge that from time to time inmates of the Texas Department of Criminal Justice are released on parole. Felder, 758 S.W.2d at 762. Experience demonstrates the best likelihood is that a jury will consider the existence of parole. Arnold v. State, 786 S.W.2d 295, 300 (Tex.Cr.App.1990), cert. denied, 498 U.S. 838, 111 S.Ct. 110, 112 L.Ed.2d 80 (1990). Jurors often succumb to the temptation to consider parole. Id. at 311. While jurors conceive of parole, they can, and often do, mispereeive its application. “It can hardly be questioned that most juries lack accurate information about the precise meaning of ‘life imprisonment.’ ” Simmons, 512 U.S. at -, 114 S.Ct. at 2197, 129 L.Ed.2d at 146. Portions of the voir dire involving several veniremembers in the present case are illustrative.10
VENIREMEMBER: Life is life: correct? It’s not what we hear on TV?
The trial court told the panel that it would instruct them not to consider the issue of parole in making their decision.
PROSECUTOR: Does anything pop into your mind that is important, or I mean why that must be, why we need the death penalty, if we do?
VENIREMEMBER: I just — there is so much about people that are turned loose after serving such a short period of time in a prison for minor crimes and then go out and commit murder, and it’s just really scary to hear things like that, that they are put away for not so serious crimes and then turn around and do much worse crimes after being just sentenced for such a short period, or not sentenced but allowed to serve such a short period of time, and if people like that can do — go to that point, people that have already committed horrendous crimes, it just seems a little scary that they might do the same thing again, or be a hazard to society.
Another veniremember discussed the matter as follows:
DEFENSE COUNSEL: The way the question reads: Do you agree or disagree that life imprisonment is more effective than capital punishment? And you disagreed with that statement.... Could you share with me why?
VENIREMEMBER: I guess the reason I answered it in that response was that basi*140cally we know that even though they get life imprisonment they are up for parole within ten or twenty years and that life imprisonment doesn’t mean life imprisonment. Basically the words don’t mean anything.
In response to a veniremember’s concern about early release, the trial court responded, “Question relating to leniency within the penal institution or criminal laws, and you mentioned early release. Almost everybody does. That is one of the most popular answers.”
VENIREMEMBER: What does life mean? Can they get out in three years or four years with life?
The trial court explained to this venire-member that this was not something that could be considered in the punishment phase.11 The colloquy continued:
VENIREMEMBER: I don’t think I really got an answer.
COURT: You didn’t get a correct answer because I can’t tell you. All I can tell you is you cán’t consider it.
Another veniremember was asked about the potential for a person being a continuing threat to society.
VENIREMEMBER: Most of them do. Most of them — I watch the news every night. Early parolees and everything, they get out of jail and they commit another crime the next day.
Another veniremember expressed a problem with a person convicted of a crime who was suddenly released to commit another crime. She asked if that were possible in a capital murder case.
COURT: Well I think it is obvious if somebody is assessed the death penalty you don’t get paroled on a death penalty.
VENIREMEMBER: That doesn’t seem to be what is happening, though. Or are we not knowing the full story when we hear things?
COURT: You probably don’t know the full story, but you aren’t paroled on a death penalty. I think that is obvious. I don’t think anybody is going to object at this point to my telling you that, which leaves you with the other option, a life sentence. VENIREMEMBER: And that’s the one that you are eligible for parole at some stage perhaps?
COURT: Yes.
This veniremember was told that she would be instructed not to consider parole.
VENIREMEMBER: See I think that is wrong. I think that if — I think that if the sentence I am going to — if the way I vote on this affects whether he is going to be out in two years versus thirty years, then I think I should really have the right to know that up front because I think that changes can occur and sometimes changes don’t occur, and if they get back out again and they repeat the offense then I am really angry about that.
A veniremember was concerned that a “person is put in prison and he is released within just a few months for a crime that he should be in there for a number of years.” Several other veniremembers expressed concerns about parole and early release. Other veniremembers asked when a person sentenced to life could be paroled, but the court declined to answer.
The voir dire in this case exemplifies the difficulties and misperceptions potential jurors have with parole, especially in the context of a life sentence for capital murder. Thirty-five years is not an insubstantial length of time. A jury reasonably may be*141lieve that a person convicted of capital murder could be released on parole long before he serves thirty-five years if he were not executed. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2193, 129 L.Ed.2d at 141. To the extent this misperception pervades the jury’s deliberation, it would have the effect of creating a false choice between sentencing the defendant to death and sentencing him to a relatively short period of incarceration. Cf. Simmons, 512 U.S. at -, 114 S.Ct. at 2193, 129 L.Ed.2d at 141. This misunderstanding would be heightened by the prosecutor’s urging the jury that the defendant would be a danger to society on the streets if he were not executed. Simmons, 512 U.S. at -, 114 S.Ct. at 2193, 129 L.Ed.2d at 141.
“[Tjhere may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.” Simmons, 512 U.S. at -, 114 S.Ct. at 2194, 129 L.Ed.2d at 142. It stands to reason that the fact that a capital murder defendant in Texas would not be considered for release on parole for thirty-five years would provide greater assurance of the defendant’s future nondangerousness to society outside of prison than any misunderstanding that he would be eligible for parole considerably earlier. When a defendant presents evidence that he could be rehabilitated in prison and that the risk of violence is substantially reduced when the defendant reaches an advanced age, and the prosecutor argues that the defendant would be a danger to society on the streets, the fact that the defendant could not be released from prison for thirty-five years will often be the only way that a violent criminal can successfully rebut the State’s case. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2200, 129 L.Ed.2d at 150-51 (O’Connor, J., concurring).
Without being allowed to have the jury informed of the thirty-five year requirement for parole eligibility, a defendant may be prohibited from rebutting information that the jury considers in answering the special issue. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2194, 129 L.Ed.2d at 143. The risk that the jury may consider misinformation about parole eligibility is great, and the consequences are vital to the defendant. Simmons, 512 U.S. at-, 114 S.Ct. at 2197, 129 L.Ed.2d at 146-47.
A jury’s task at the punishment phase of a capital murder trial is to answer the special issues. Stoker, 788 S.W.2d at 16. Generally, parole is a matter within the exclusive jurisdiction of the Board of Pardons and Paroles and is not a matter of concern for the jury. Felder, 758 S.W.2d at 762. However, the relevance of parole information in a capital case is not so the jury can determine a number of years to assess as punishment to circumvent the Executive branch and ensure the defendant remains incarcerated for a period of time the jury deems proper. Information concerning the thirty-five year parole eligibility requirement is directly relevant to the special issue about whether the defendant would be a continuing threat to society, notwithstanding our statement to the contrary in Jones, 843 S.W.2d at 495.
v. The Texas Constitutional Question
Returning to the matter of the Texas Constitution mentioned previously, supra p. 131, I again note that prior cases hold that the Texas Constitution prohibits a parole instruction in a capital murder trial. Garcia, 887 S.W.2d at 860; Elliott, 858 S.W.2d at 489 n. 7; but see discussion of the 1989 amendment to Tex. Const. Art. IV, § 11(a) and Art. 37.07. V.A.C.C.P., supra at p. 133 n. 4. However, it is a firmly entrenched pillar of federalism that when there is a constitutional conflict, a federal constitutional right prevails over a state constitutional restriction. Since I believe that in the instant cause the failure to inform the jury about the thirty-five year parole eligibility plateau violated appellant’s federal constitutional right to due process, such federal right prevails.
D. Application to Present Case
Previously I have set out illustrative portions of the jury voir dire wherein parole was discussed. Veniremembers were very interested in parole. In fact, several of the veniremembers who ultimately served as jurors in this case inquired about parole during voir dire. Specifically, I observe that during questioning Juror Flanakin said,
*142I just — there is so much about people that are turned loose after serving such a short period of time in a prison for minor crimes and then go out and commit murder, and it’s just really scary to hear things like that, that they are put away for not so serious crime and then turn around and do much worse crimes after being just sentenced for such a short period, or not sentenced but allowed to serve such a short period of time, and if people like that can do — go to that point, people that have already committed horrendous crimes, it just seems a little scary that they might do the same thing again, or be a hazard to society.
Juror Garcia said that he watched the news every night and that “[ejarly parolees and everything, they get out of jail and they commit another crime the next day.” He indicated that he guessed that he could follow the judge’s instructions that the early parole thing should not be considered in reaching the sentence.
Juror Strohbeek stated that she had “a problem with so many people who have thirty-five years and spend a few years, and because of overcrowding, they are let out.” Juror Mallard, expressing concern about parole, said he felt “like that it would serve the criminal and rehabilitation system better if generally fines were fixed or sentences were fixed within a very narrow range, ...; but, ... that should be up to the sentencing at the time of sentence, not necessarily probation later, or parole later.” Jurors Mitchell, Wilkinson, Englund and Miller, when asked about having previously mentioned concerns about the revolving door and early parole and about how long somebody would be locked away, indicated that they could follow the judge’s instructions to not consider such. Thus 8 jurors, i.e. two-thirds of the jury that would decide whether appellant lived or died, expressed a keen interest in the amount of time that this capital defendant would have to serve if he were sentenced to life rather than death.
In the punishment phase of the trial, the State presented evidence of prisoners’ eligibility for release on furlough under a life sentence for capital murder.12 Also at the punishment stage, appellant submitted evidence that he would not be a danger to prison society. Appellant was twenty-eight years old at the time of his trial. Appellant also presented expert testimony from a psychologist, who had been the chief mental health officer for the entire Texas Department of Corrections system, that indicated that when a person grows older his risk level for violence decreases and that the risk level of violence for a sixty-five-year-old inmate is significantly lower than that for a eighteen to twenty-five-year old. That psychologist specifically testified that he did not want to see appellant on the street, and that he did not think that it was in their or appellant’s interest to be on the street, but that he did not believe that he would be a danger in prison society. The State in rebuttal presented testimony from an officer who investigated offenses within the prison system about how a capital murderer who received a life sentence would be classified upon entry into the system and would be reclassified, depending upon behavior, with such classifications depending “on the amount of time that they are pulling good time” and that it basically depended on disciplinary history while in the penitentiary that determined how one was assigned, “either to your trustee status or whether you remain line class and not pull any good time.”
At punishment phase jury argument, the prosecutor encouraged the jury to consider appellant’s risk to society on the streets. The prosecutor argued:
[Defense counsel] wants you — and I understand what he wants you — to focus only on prison society, and I am not suggesting that society does not include prison society. It includes all. He wants you to forget society on the street; and I’m saying, no, don’t do that. This question doesn’t say, “if he gets a life sentence.” That’s getting the cart before the horse. *143You answer this question to determine what the sentence is going to be. You determine, whether it’s today or tomorrow, next week, next year, inside prison, outside prison, wherever he may be, in whatever aspect of society he may find himself: Is there a probability that he’s going to commit future acts of violence that would constitute a continuing threat?
The prosecutor also argued that appellant would be a danger to people in prison.
Another prosecutor argued, “Now we have to look at society’s rights, and we look at how that defendant functions in society.” The prosecutor traced appellant’s history, pointing out the numerous crimes appellant had committed. The prosecutor argued, “Less than 24 hours after his release from prison he slaughters two men.” This prosecutor also argued that appellant would be violent in prison.
“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.” Simmons, 512 U.S. at -, 114 S.Ct. at 2194, 129 L.Ed.2d at 142. The jury reasonably may have believed appellant would be released on parole well before serving thirty-five years if he were not executed. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2193, 129 L.Ed.2d at 141. The trial court did not allow appellant an opportunity to deny or explain whatever misinformation the jury had about the operation of the parole laws. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2192-94, 129 L.Ed.2d at 140-44. The State argued that appellant would be a danger to prison society. Cf. Simmons, 512 U.S. at- - n. 5, 114 S.Ct. at 2194-95 n. 5, 129 L.Ed.2d at 143-44 n. 5. However, the State also argued that appellant would be a threat to society outside of prison. The State urged the jury to answer the special issue “whether it’s today or tomorrow, next week, next year, inside prison, outside prison, wherever he may be, in whatever aspect of society he may find himself.” The State reminded the jury that appellant “slaughter[ed] two men” less than twenty-four hours after he was released from prison. Appellant was not allowed to rebut the State’s argument that he would commit criminal acts of violence that would constitute a continuing threat to society outside of prison with information that the earliest he could even be considered for release into society outside of prison was in thirty-five years when he would be in his sixties.
Appellant’s efforts to convince the jury that he would not be a danger to society beyond the prison walls were thwarted, as he was prevented from allowing the jury to know that under Texas law he could not be released on parole until he was at an age when, according to defense evidence, he would not endanger that society. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2194, 129 L.Ed.2d at 142-43. This effectively limited appellant’s attempts to focus the jury’s attention on whether he would be a future danger in prison. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2195, 129 L.Ed.2d at 144. The jury was left to speculate about the date of appellant’s parole eligibility when evaluating the special issue. Cf. Simmons, 512 U.S. at -, 114 S.Ct. at 2195, 129 L.Ed.2d at 144.
In the punishment charge the trial court instructed the jury:
During your deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles Division of the Texas Department of Criminal Justice or of the Governor, or how long the Defendant would be required to serve to satisfy a sentence of life imprisonment.
This instruction suggested to the jury that parole was available, but that the jury should be blind to when appellant could be released. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2197, 129 L.Ed.2d at 147. At the same time, the jury was required to answer the pertinent special issue with the State urging the jury to find that appellant would be a threat in and out of prison and appellant contending that, although he would be a threat out of prison anytime soon, he would pose no danger in prison and he would not be a threat in his sixties.
In this context, appellant’s parole eligibility was obviously relevant to the jury’s sentencing task in answering the future dangerousness special issue. “[I]n some circumstances, ‘the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so *144vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’ ” Simmons, 512 U.S. at -, 114 S.Ct. at 2197, 129 L.Ed.2d at 147 (citations omitted). As this Court has observed, experience demonstrates the best likelihood is that a jury will consider the existence of parole. Arnold, 786 S.W.2d at 300. Moreover, even if the instruction kept the jury from considering parole, it would not have satisfied due process as appellant was entitled to have the jury consider all relevant information in answering the special issue. Cf. Simmons, 512 U.S. at-, 114 S.Ct. at 2198, 129 L.Ed.2d at 147. While being incarcerated until reaching over sixty years of age certainly does not preclude a finding of future dangerousness, the fact of such a lengthy incarceration is evidence which, in the instant case, would be very relevant to the jury’s answering of the future dangerousness special issue.
E. Conclusion
Under the record in this case, and in light of Simmons, I believe that the trial court’s failure to allow appellant to have the jury informed at some point that a person sentenced to life for capital murder would not be eligible for parole until he serves thirty-five years violated appellant’s right to due process. I do not believe that a capital murder defendant is always entitled to have the jury so informed; this issue is case specific to the facts of each particular case. But based upon the evidence presented in this particular case, I believe that appellant has shown a due process violation.13 Accordingly, I respectfully dissent to the majority holding of no error in refusing to give a parole instruction as was requested by appellant. Such a holding is particularly ironic in these days of clamor for “truth-in-sentencing” — it would seem that the majority, in violation of constitutional due process, is approving and encouraging “untruth” or “ignorance” in sentencing in situations involving the ultimate punishment, death. I respectfully refuse to go along with such ignorance.
. Actually, in King v. Lynaugh the en banc court did not decide the issue of whether a parole instruction should have been given. The en banc court held that this issue was procedurally barred because King did not request such a charge at trial. King v. Lynaugh, 850 F.2d at 1056 n. 1. The issue addressed by the en banc court was whether King should have been allowed to voir dire the jury on the twenty-year requirement for parole eligibility under a life sentence for capital murder. Id. at 1058.
. See former Art. 42.18, § 8(b), V.A.C.C.P.
. See former Art. 37.071(b)(2), V.A.C.C.P., now Arts. 37.0711, § 3(b)(2), and 37.071, § 2(b)(1) ("whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”).
. "The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandá-tory supervision on the period of incarceration served by a defendant convicted of a criminal offense.” Tex. Const., Art. IV, § 11(a). As a result of the 1989 amendment to Art. IV, § 11 (a), the Legislature enacted Art. 37.07, § 4, V.A.C.C.P., which provides for such instruction by the courts, but does not mention capital cases. See Boyd, 811 S.W.2d at 121; Felder, 758 S.W.2d at 762 (both cases construing former Art. 37.07, § 4).
. The Supreme Court declined to decide whether appellant's rights under the Eighth Amendment were also violated. Simmons, 512 U.S. at-n. 4, 114 S.Ct. at 2193 n. 4, 129 L.Ed.2d at 141 n. 4. But see Simmons, 512 U.S. at-, 114 S.Ct. at 2198, 129 L.Ed.2d at 147 (Souter, J., concurring).
. The offense in this case occurred on September 13, 1991.
. The minimum amount of time a person serving a life sentence for capital murder must serve before becoming eligible for parole has evolved from twenty (20) years, to fifteen (15) years, to thirty-five (35) years, and to forty (40) years. See Act 1985, ch. 427, 1985 Tex. Gen. Laws 1531; Act 1987, ch. 384, 1987 Tex. Gen. Laws 1887; Act 1991, ch. 652, 1991 Tex. Gen. Laws 2394; Act 1993, ch. 900, 1993 Tex. Gen. Laws 3586.
. Of course, the Supreme Court in Simmons was not concerned with a situation in which a defendant was eligible for parole, albeit after serving a substantial period of time. The Supreme Court remarked it would not lightly second-guess a state’s decision whether or not a jury should be informed about parole. The Court did not opine that the United States Constitution did not require the jury to be provided with parole eligibility information.
If there were a bright-line rule that such information is available only if the sole alternative to death were life without parole, then several questions would be raised. What of a sentencing scheme in which there are three alternatives: death; life without parole; and life with parole, in which the precise date of parole eligibility would be relevant? See Simmons, 512 U.S. at -, 114 S.Ct. at 2202, 129 L.Ed.2d at 152 (Scalia, J., dissenting). Suppose a state wished to provide assurance that capital murder prisoners serving life sentences would never be released on parole, but did not want to have the jury instructed on that matter. Could the state accomplish this by requiring such a prisoner to serve ninety-nine years before attaining parole eligibility? If a defendant is sixty years old and would have to serve forty years before being eligible for parole, could the jury constitutionally be kept from knowing the unlikelihood that he could ever be released on parole, even though the defendant might argue this is tantamount to life without parole?
These questions are rhetorical, but they underscore the ambivalence of a bright-line rule.
. Another distinction is that in Texas, unlike South Carolina, a jury must answer a special issue about whether there is a probability that a defendant would commit criminal acts of violence that would constitute a continuing threat to society. Thus, future dangerousness is always an issue in a Texas capital case.
. These are quoted for illustrative purposes. This is not to suggest that these veniremembers were unqualified.
. I point out that there is indeed a statutory definition of what life means for "a prisoner serving a life sentence for a capital felony” per Art. 42.18, § 8(b)(2), V.A.C.C.P. — "life” means the prisoner is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 35 calendar years. The trial court could have answered the veniremember’s question about what life means by relating the statutory language; and could have excised the word “parole” in phrasing the answer, e.g., "Per our statutes, a life sentence for capital murder means that the defendant is not eligible for release until he has served 35 years of actual calendar time without consideration of good conduct time.” There is absolutely nothing statutory or constitutional, state or federal, that requires such information to remain a "state secret” hidden from jurors — and as I discuss further, there are indeed constitutional considerations that in some situations require that jurors be informed of such.
. Appellant raises a separate point of error contending that this furlough evidence should not have been admitted. The majority overrules that point by holding that appellant failed to correctly object to such evidence, thus waiving his right to complain of its admission. Rhoades, supra, 934 S.W.2d at 126-28.
. Even such a constitutional error is subject to a harmless error analysis per Tex.R.App.Pro. 81(b)(2). Of course all of the evidence, including appellant’s prior criminal record and offenses and the facts of the instant offense, would be considered in making such a determination.