dissenting.
I respectfully dissent and would reverse and remand for a new trial.
The majority opinion incorrectly overrules the complaint of the appellant of jury misconduct which caused a harsher punishment because of a misstatement of the parole law by a juror.
In justifying this decision, the majority first contends that the point of error as alleged does not involve an impermissible consideration of the manner in which the parole law might be applied to this particular defendant. I disagree.
Appellant’s first point of error reads as follows:
By denying Defendant’s motion for new trial based on alleged jury misconduct the trial court committed reversible error because the Foreman of the jury testified that he would never have voted for a punishment of 25 years except that he relied on statements of other jurors who asserted as a fact of which they had knowledge that defendant would be released after serving only 8 years if he were sentenced to serve 25 years. Causing the foreman to vote for a harsher *181punishment by such means in violation of ■ art. 40.03, §§ 7 and 8.
Appellant’s argument under the point of error further elaborated his assertion that the case demonstrates all the elements enunciated in Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (en banc). Thus, the appellant has properly directed our attention to the impermissible consideration of the manner in which the parole law might be applied to this particular defendant.
During the hearing on defendant’s motion for new trial, the jury foreman Victor D. Bouvinghausen testified in part as follows:
ME. EGAN:
Q: Eeverand, I’d like to ask you a few questions as to what happened in the jury room. Now you were the foreman of the jury that assessed the punishment at 25 years, is that correct, sir?
THE WITNESS: A: Eight.
Q: Now in the jury room there was discussion of the parole law and its application to this Defendant, is that correct, sir?
A: That’s right.
Q: All right, sir. Now was it asserted as a fact by other jurors there in the jury room that if Danny Shields, the Defendant, were assessed a sentence to serve 25 years in the Texas Department of Corrections, that he would be released in eight years or less?
A: Eight.
Q: This was asserted as a fact?
A: (Indicating affirmatively)
THE COUET: Could you respond?
THE WITNESS: Yes.
ME. EGAN: Q: And, Eeverand, by that statement — And that statement was made by other jurors back there, is that correct, sir?
THE WITNESS: A: Correct.
Q: All right. Now that statement that he would be released in eight years or less was not in any way conditioned on Danny Shields’ behaving himself in the penitentiary, is that correct?
A: No.
Q: And not conditioned in any way on exercise of discretion by the Parole Board, is that correct, sir?
A: (Indicating negatively)
Q: He—
A: No. Just, ‘We will give him 25 years, because he’ll be out in eight years anyway.’
Q: All right, sir. And that was a definite fact, that, ‘If we give him 25 years, he’ll be out in eight,’ is that correct?
A: Yes.
Q: And did you rely on the correctness of that statement?
A: Yes.
Q: And is it because of the correctness of that assertion of fact that you were willing to vote to assess the Defendant a sentence of 25 years to serve in the penitentiary?
A: Yes.
Q: All right, sir. Now unless you have this definite assurance that he would serve eight years or less, would you have voted for any sentence, yourself, in excess of eight years?
A: No.
Q: That was the reason that you went along with the 25 years?
A: Eight.
Q: This assertion of law was as a matter of fact, is that correct, sir?
A: Correct.
(Emphasis added)
In attempting to rehabilitate Bouvin-ghausen, the prosecutor elicited the following:
[PEOSECUTOE]: And you talked about the fact that he’d be released. The fact is, he would be eligible for parole, is that right?
[BOUVINGHAUSEN]: Well, the eligible wasn’t emphasized.
The Texas Court of Criminal Appeals set out the law in this area in Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (en banc) as follows:
*182To show that a jury discussion of pa- • role law constitutes reversible error, it must be shown that there was
“(1) a misstatement of the law
“(2) asserted as a fact
“(3) by one professing to know the law
“(4) which is relied upon by other jurors
“(5) who for that reason changed their vote to a harsher punishment.”
Id. at 266.
Applying this test to the case at bar, the foreman testified that several jurors did misstate the law by asserting as a fact that this defendant would be out in eight years if assessed twenty-five years punishment, regardless of any actions or inactions on the part of the Parole Board. Further, the foreman testified he relied upon these jurors who appeared to know the law and for this reason voted for the harsher punishment.
Thus, the Sneed test applies on all counts to the case at bar.
In the punishment charge, the trial court instructed the jury in part as follows:
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied, to this particular defendant. (Emphasis added)
There can be no question that the jury directly violated the court’s instruction in this respect and thereby committed error. The question remaining, is whether the error was reversible.
It is well established that issues of fact as to jury misconduct raised at a hearing on a motion for new trial are for the determination of the trial judge, and where there is conflicting evidence there is no abuse of discretion where the motion for new trial is overruled. McCartney v. State, 542 S.W.2d 156, 162 (Tex.Crim.App.1976). However, in the case at bar, the prosecution failed to elicit conflicting testimony to justify a denial of a new trial.
I would reverse and remand for a new trial.