dissenting.
The majority places reliance upon Carter v. Kentucky, - U.S. -, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). I, too, find that the Carter decision is both informative and self-limiting. In that case, the Supreme Court of the United States expressly stated:
“... While it is arguable that a refusal to give an instruction similar to the one that was requested here can never be harmless, cf. Bruno [v. United States], 308 U.S., [287] at 293, [60 S.Ct. 198 at 200, 84 L.Ed. 451], we decline to reach the issue, because it was not presented to or considered by the Supreme Court of Kentucky. See Sandstrom v. Montana, 442 U.S. 510, 527 [99 S.Ct. 2450, 2461, 61 L.Ed.2d 39].” (Emphasis added) Carter, supra, at 101 S.Ct. page 1121.
Although this Court has previously held that the giving of the admonitory instruction at the guilt-innocence stage was within the sound discretion of the trial court,1 Carter now directs otherwise. However, as stated, Carter still leaves open the issue whether, under the proper circumstances, the failure to give the requested instruction would be harmless error.2
*239If there ever was a case representing no error or, at the most, harmless constitutional error, it is before us today. I am, of course, referring to the great weight of the evidence establishing guilt, the bifurcated trial with the instruction previously given during the guilt-innocence phase, and the balancing factors involved in a repeated instruction.
I.
The record before us is more than sufficient to establish appellant’s guilt. On Tuesday morning, October 4, 1977, Roosevelt Young and his companions heard noises coming from Johnson’s Lounge in Waco. Young observed appellant walking around in the alley adjoining the lounge and enter the lounge. One of Young’s companions called the police. Appellant left the scene before the police arrived.
Waco police officers John Taylor and R. D. McCollum arrived approximately thirty minutes later and investigated. The officers discovered the building had been forcibly entered and ransacked. A few items were gathered near the rear door in an ice chest. One of the most significant items was found near the point of the forced entry against the outside rear wall. It was a receipt signed by appellant, dated October 3,1977, for payment of a misdemeanor fine and court costs. This receipt strongly implied appellant’s presence at the scene of the offense.
Meanwhile, Young accompanied a private security guard, “Big” Smith, on a patrol of the surrounding neighborhoods. Young and Smith pulled into a local convenience store where appellant was being questioned by other officers. Young immediately identified appellant as the person he saw at Johnson’s Lounge.
At trial, Rufus Johnson testified that he was the owner of Johnson’s Lounge. He stated that the lounge was closed on the morning of October 4, 1977. Johnson also stated that he did not know appellant or give appellant permission to enter the building. Finally, Johnson identified a knife taken from the Lounge. Appellant’s girlfriend testified appellant had given her the knife.
I cannot believe that upon retrial and the giving of the admonitory instruction the jury’s verdict would be different. The evidence of appellant’s guilt is more than adequate. The prophylactic admonition to not consider appellant’s silence, in this punishment stage, cannot be of sufficient magnitude to require reversal.
II.
Furthermore, the instruction in issue was previously submitted to the jury in the charge at the guilt-innocence stage. The trial court read that instruction to the jury. The jury was thus admonished that “you cannot and must not refer or allude to that fact (defendant’s election not to testify) throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.” (Emphasis added).
This is clearly distinguishable from Carter, where a complete omission of the requested charge constituted reversible error. Appellant’s rights, as guaranteed under Carter, were protected. The need for a repeated instruction during the punishment stage is illusory. Indeed, the issue of guilt had been determined. Since Carter seeks to protect the right against self-incrimination, the repetition is questionable when the issue is solely for punishment.3 See, Williams v. State, 607 S.W.2d 577 (Tex.Cr.App.1980). I would find no error in the failure to give the same issue back-to-back in a bifurcated trial.
*240III.
Finally, the issue of giving the instruction in the past has exposed a unique situation. Attorneys have repeatedly argued that the inclusion of the instruction of appellant’s failure to testify constituted reversible error. See, e. g., Smith v. State, 455 S.W.2d 748 (Tex.Cr.App.1970) (constituted impermissible comment on the weight of evidence and infringement of privilege against self-incrimination); Hill v. State, 466 S.W.2d 791 (Tex.Cr.App.1971) (comment on exercise of constitutional right to remain silent); Small v. State, 132 Tex.Cr.R. 279, 104 S.W.2d 52 (Tex.Cr.App.1937) (insinuates culpable omission on part of defendant or conveys impression that he should have testified). Also, see, Rogers v. State, 486 S.W.2d 786 (Tex.Cr.App.1972).
The conflict in views was most aptly stated in State v. Smart, 485 S.W.2d 90, 95 (Mo.1972):
“We must recognize, however, that the instruction is a comment on defendant’s failure to testify even though it is supposedly for defendant’s benefit and is designed to keep the jury from speculating on the reasons for his failure to take the stand and drawing improper inferences therefrom. There are those who believe the instruction is more harmful than helpful and regardless of how favorably to the accused the instruction may be worded it may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds.”
Indeed, many states have found similar reasoning persuasive and have held that a trial court may not give such an instruction over the defendant’s objection. State v. Kimball, 176 N.W.2d 864 (Iowa, 1970); Villines v. State, 492 P.2d 343 (Okl.Cr.1971); Mosby v. State, 246 Ark. 963, 440 S.W.2d 230 (1969); State v. White, 285 A.2d 832 (Me.1972); Dooley v. State, 393 N.E.2d 154 (Ind.1979); People v. Lee, 44 Ill.App.3d 43, 2 Ill.Dec. 668, 357 N.E.2d 888 (1976); People v. Yopp, 67 A.D.2d 774, 412 N.Y.S.2d 698 (1979). This Court has refused to take such a rigid stand and holds that such an instruction, even in the face of an objection, is proper. Small v. State, supra; Smith v. State, supra. However, we have admonished the trial courts to not give the instruction if the defendant objects to its inclusion. Hill v. State, supra; Rogers v. State, supra.
Recently, the United States Supreme Court in Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), held that the giving, over the defendant’s objection, of the cautionary instruction that the jury is not to draw any adverse inferences from a defendant’s decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination. Accord, Smith v. State, supra; Hill v. State, supra; Rogers v. State, supra. The import to be drawn from Lakeside is that the Supreme Court recognized the diverse views found not only in the state courts but in the Federal system as well. See Lakeside v. Oregon, supra, 435 U.S. at 336, n. 3, 98 S.Ct. at 1093, n. 3.
In applying these decisions to the facts in this case, the trial judge is confronted with anything but a consistent line of legal theory. It must, in an effort to assure appellant a fair trial, weigh the “pros and cons” of including the second charge.
Here, the cautionary charge had already been presented and read to the jury during the guilt-innocence stage. The trial judge, under the circumstances, may very well feel that another instruction calls undue and unfavorable attention upon appellant’s failure to testify. Moreover, because of the admonishments found in Hill and Rogers, the court may feel that it had upheld its statutory duty in giving the initial instruction, thereby striking a reasonable balance between conflicting interests.
I, therefore, would hold that the trial court has the discretionary right in refusing to give the admonitory “failure to testify” instruction during the punishment stage. This case is distinguishable from the situation where a complete omission of requested instruction is reversible error. However, even assuming that the court did err in refusing to give the instruction over appel*241lant’s objection, the error was not so prejudicial to require reversal. Carter v. Kentucky, supra; Chapman v. California, supra. Appellant had already received the instruction during the guilt-innocence phase.
I dissent to the majority’s opinion.
W. C. DAVIS, J., joins in dissent.. See Williams v. State, 511 S.W.2d 64 (Tex.Cr.App.1974), but compare Handley v. State, 480 S.W.2d 738 (Tex.Cr.App.1972), Jaffrion v. State, 501 S.W.2d 322 (Tex.Cr.App.1973), and Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974).
. A re-examination of the harmless error doctrine, as applied to the Fifth Amendment and *239the “failure to testify,” under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), leads to the inevitable conclusion that this is the type of case for which the harmless constitutional error doctrine was created.
. See, Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), where the court was allowed to use a defendant’s silence and non-cooperation as factors in assessment of punishment.