concurring in part and dissenting in part.
“[Sjince the parole law is not for the jury’s consideration,” Heredia v. State, 528 S.W.2d 847, 853 and n.4 (Tex.Cr.App.1975), “[t]he trial court should always attempt to eliminate the possibility of such misconduct by instructing the jury at the punishment phase that it should not discuss or consider the possible effects of the parole law or system,”1 Moore v. State, 535 S.W.2d 357, 358-359 (Tex.Cr.App.1976).2 Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978) ex*485plains “the constitutional basis for the established rule that discussion of the parole law is always jury misconduct,” at 352. Here, as in Sneed v. State, 625 S.W.2d 761 (Tex.App.—Amarillo 1981), the jury was admonished properly,3 yet in each instance manifestly jurors violated that part of their oath to render a true verdict “according to the law and the evidence...,” Article 35.-22, V.A.C.C.P.
The problem once again confronting the Court is to decide whether the violation, revealed at hearing on motion for new trial,4 entitles appellant to a new trial. Without making still another revision in the law of jury misconduct — in the generic sense — I would find that it does.
The Court of Appeals dwelt too long on the fact that no juror participating in the forbidden discussion professed to know the parole law, for that notion was expressly considered, discredited and rejected by the Court in Heredia v. State, supra, at 850. While it is true that in Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978) a divided panel considered lack of professed knowledge, the ultimate conclusion under Article 40.03(7), V.A.C.C.P., was that since the remarks were found not to be misstatement of the law they did not “constitute receipt of ‘other evidence,’ ” id., at 790. However, subsequently, without pausing to see if Jur- or Martinez claimed to know the law, the Court determined in Jones v. State, 596 S.W.2d 134 (Tex.Cr.App.1980) that Article 40.03(7) misconduct was not shown where the offending statement was “a fairly accurate statement of the law,” id., at 138.5 See also Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978—1979) for another rejection by the Court of the five point test — one of which is professing to know the law- — advanced by the dissenting opinion on rehearing, at 356-357.
Accordingly, seeing no need to reexamine the underpinnings of Article 40.03(7), or to discard either principle settled on by Heredia v. State, supra, at 852, I join Judge Odom in dissenting to Part II of the opinion of the Court, but otherwise concur in the opinion of the Court.
. All emphasis is mine unless otherwise indicated.
. But see McIlveen v. State, 559 S.W.2d 815, 819, n. 2 (Tex.Cr.App.1977) and O’Bryan v. *485State, 591 S.W.2d 464 (Tex.Cr.App.1979): “Further, the giving of an admonitory instruction in order to guard against the jury’s consideration of parole is largely left to the trial court’s discretion.” Id., at 478. Thus, right at the threshold of this species of jury misconduct is revealed an ambivalence on the part of the Court about the first groundrule for preventing it.
. See, e.g., Morrison & Blackwell, Wilson’s Texas Criminal Forms Annotated (Eighth Edition, 1977) § 81.03, 8 Texas Practice 146; McClung, Jury Charges for Texas Criminal Practice (Revised Edition, January 1981) 240, 309.
. That traditional new trial motion practice contemplated and sanctioned procedurally by Articles 40.03(7) and (8), 40.05, 40.06 and 40.-07, V.A.C.C.P., is not allowed in Federal trial courts, see Federal Rules of Evidence, Rule 606(b); similarly, the proposed code of Texas Rules of Evidence disapproves of the practice by adopting as its own the Federal rule. Pamphlet, Senate Interim Study on Rules of Evidence (June 1982) 22-23.
.Beck v. State, supra, was not alluded to in resolving the issue under § (7) — only in finding the acceding juror was not influenced by the strength of Martinez’ assertions “in his eventual decision to come up to fifteen years,” and thus appellant had not been deprived of a fair trial under Article 40.03(8), id., at 138.