concurring and dissenting.
I note that the majority, in its discussion of appellant’s points five and six, which complain about not instructing the jury about the requirement that one must serve 35 years before becoming eligible for parole on a life sentence for capital murder and instructing the jury not to consider or discuss possible action by the Board of Pardons and Paroles, does not mention the fact that there was testimony before the jury about that 35 year requirement. Thus the jury was informed of that 35 year requirement, in spite of the trial court’s jury charge instruction not to consider the possibility of any action by the Board of Pardons and Paroles.
I am. concerned and I must continue to comment upon the problem in refusing to instruct the jury about the required number of years of incarceration before becoming eligible for parole while serving a life sentence for capital murder. See, e.g., Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995)(plurality opinion), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Morris v. State, 940 S.W.2d 610 (Tex.Cr.App.1996), cert. denied, — U.S. -, 117 S.Ct. 2461, 138 L.Ed.2d 218 (1997). As I discussed in some detail in my dissent to Rhoades v. State, 934 S.W.2d 113, 131-44 (Tex.Cr.App.1996)(Overstreet, J., dissenting), in light of the United States Supreme Court’s holding in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), I believe that the United States Constitution’s guarantees of due process required appellant’s jury be informed of the thirty-five year parole eligibility law.
I also note that four members of the United States Supreme Court have recently commented upon the “[p]erverse[ness]” of our death penalty scheme not letting the jury *176know when the defendant will become eligible for parole if he is not sentenced to death. Brown v. Texas, — U.S. -, 118 S.Ct. 355, 139 L.Ed.2d 276. I likewise find rather perverse this Court’s continued approval of keeping jurors ignorant and uninformed of such a critical legal fact when making life and death decisions as to whether the death penalty will be assessed. Capital jurors deserve to be so informed so that they can make an informed decision. Hopefully a majority of this Court will soon realize this; before the Supreme Court explicitly informs us via a myriad of our opinions being reversed.
I am also greatly concerned about the majority’s discussion of point number one, which alleges, “The jury’s finding on future dangerousness was against the great weight of the evidence and manifestly unjust.” The majority concludes that a factual sufficiency “Clems review of the future dangerousness issue is not possible.” McGinn v. State, 961 S.W.2d 160, 168 (Tex.Cr.App.1998). Because I disagree with that conclusion, particularly in light of our prior analysis of what has previously been briefed as “legal” sufficiency review of the future dangerousness issue, I respectfully dissent.
The United States Supreme Court requires a meaningful appellate review of a death sentence. It has emphasized “the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally.” Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 739, 112 L.Ed.2d 812, 826 (1991). It has also approved our Texas capital punishment scheme, in part because of our appellate review of the jury’s decision, which serves to assure that death sentences will not be “wantonly” or “freakishly” imposed. Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929, 941 (1976). And we have been doing that review based upon claims of legal insufficiency of evidence to support the jury’s answers to the punishment special is•sues.
However, a true application of the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979) legal sufficiency standard of review would result in each and every future dangerousness finding being upheld— the facts of any capital murder, when viewed in the requisite Jackson v. Virginia light most favorable to the prosecution and verdict, would be sufficient. When viewed in that most favorable light, how can a jury be irrational in concluding that someone who has committed any capital murder would be a future danger, i.e. that there is a reasonable probability that that person would commit acts of criminal violence that would constitute a continuing threat to society? It would appear to me that it is impossible to truly view the evidence in the light most favorable to a jury’s finding of future dangerousness and not find the evidence sufficient to support that finding in light of the facts of any capital murder. However, such automatic approval of the future dangerousness finding, when coupled with the refusal to review the finding on the mitigation special issue, would not provide the above-noted required “meaningful” appellate review of a death sentence.
Yet this Court, in the not-too-distant past, has indeed on occasion actually found insufficient evidence of future dangerousness and reformed the death sentence to life. See, e.g., Ellason v. State, 815 S.W.2d 656 (Tex.Cr.App.1991); Smith v. State, 779 S.W.2d 417 (Tex.Cr.App.1989); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988); and Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987)(op. on reh’g). However, this Court did not really apply a true Jackson v. Virginia test, but rather weighed all of the evidence, applied the factors of Keeton v. State, supra, 724 S.W.2d at 61, and made a judgment call on whether the future dangerousness finding, which would result in a death sentence, was appropriate in light of all of the evidence. The Keeton factors even include consideration of potentially mitigating factors, such as the defendant’s age and personal circumstances, the forethought and deliberateness of the acts, the existence or absence of a prior criminal record, character evidence (good and bad), and whether the defendant was acting under the domination of another at the time of the offense. A true Jackson v. Virginia analysis of viewing the evidence in the light most favorable to the verdict would disregard any and all potentially mitigating aspects of evidence because such would be *177viewing in a light contrary to the verdict. The weighing of evidence via the Keeton factors to decide whether the jury’s finding on the future dangerousness issue is “rational” is much more akin to a factual rather than legal sufficiency review.
Regardless of what the standard is called, it is critical that this Court conduct a “meaningful” review, such that there is no automatic determination that, by virtue of a guilty verdict for the offense of capital murder, the evidence is always sufficient to support the answers to the future dangerousness special issue. Unless such a review is conducted, our punishment scheme will undoubtedly run afoul of the United States Constitution.
So I reiterate that regardless of what the standard is called, legal or factual sufficiency, this Court must conduct a “meaningful” review. In light of the prior cases, the standard which we have traditionally used has provided such a meaningful review to require that the death sentence was not arbitrary or capricious in contravention of the U.S. Constitution. And we must continue to actually conduct a “meaningftd” review rather than simply accepting that the horrible facts of each and every capital murder case justify a finding of future dangerousness and a death sentence. However, I believe that we should be honest and declare for the bench and bar that we are not conducting a true Jackson v. Virginia review but rather are conducting the required “meaningful” review of the death sentence.
This Court can certainly call an elephant a giraffe; but that does not change the true nature of the beast — an elephant is an elephant. We should at least be honest and forthright about our standards and methodology of review, and continue to conduct a “meaningful” review via the Keeton factors rather than viewing the evidence in the light most favorable to the future dangerousness finding and automatically approving such a finding because the facts of any capital murder support a finding of future dangerousness when reviewed in that most favorable light.
Because the majority of this Court refuses to acknowledge and apply our true traditional process of review, I respectfully dissent to its holding refusing to review appellant’s claim of factually insufficient evidence, i.e. that the jury’s finding was against the great weight of the evidence and unjust, on the future dangerousness special issue. Nevertheless, I believe that in utilizing the above-noted Keeton factors and our traditional methodology of reviewing the sufficiency of evidence on the future dangerousness issue, the evidence is sufficient to support the jury’s finding thereon.
Therefore, I concur in overruling appellant’s claims in point of error number one, dissent to the analysis and discussion on points five and six, and concur with the remainder of the opinion.
BAIRD, J., joins.