dissenting.
The majority concludes that it is appropriate for Texas juries to consider what the Legislature has decided on how defendants, who are tried for consolidated property offenses under V.T.C.A., Penal Code, Sections 3.01 and 3.02, will serve any penalty they assess. The majority is concerned that to rule otherwise would subject juries to deliberations permeated with ignorance and loathsome advantage for convicted criminals. It is not mentioned that the jury has the law on the range of applicable punishment, the evidence surrounding the commission of the offense, and any evidence introduced under the liberal provision of Article 37.07, Section 3(a), V.A.C.C.P. This latter provision permits the introduction of evidence concerning the defendant’s prior criminal record, general reputation, and character at the punishment stage. If Tex*730as juries are operating with a shortage of relevant information, which I earnestly doubt, then it is for some reason other than their ignorance of Texas law relating to sentencing procedures.
The trial court’s supplemental instruction was a technically correct statement of the law. The question is whether the jury should be informed about it. The potential for harm to a convicted defendant from an instruction on V.T.C.A., Penal Code, Section 3.03 is so great that no such instruction should be provided. Rather, the response of the trial court found in Banks v. State, 503 S.W.2d 582, should be adopted as standard procedure.
The majority baldly claims the instruction is a double-edged sword, somehow beneficial to both the convicted defendant and the State.
. The information could have been used to increase the punishment, or just as easily, used to reduce the number of years to avoid excessive punishment. . . .
Infra at 728.
If anything fails, to find support in logic, the latter part of the quoted statement qualifies. The jury picks a number of years as punishment for each cause based on the evidence before it. Knowing that the numbers they choose merge into the greatest chosen, there is only an incentive to assure that the controlling number chosen is sufficient to punish the defendant for the multitude of offenses consolidated under Sections 3.01 and 3.02, supra. The fact that the defendant is a multiple offender is before them and is relevant to their determination. How the Legislature determined the assessed penalties should be served is of no concern to them and, again, such information operates only to harm the defendant. The instruction is clearly calculated to harm the accused.
Reliance on cases dealing with jury misconduct in discussing parole laws is misplaced. Such allegations are controlled by the law relating to motions for new trials and the need to prove up allegations advanced in such motions. See Article 40.03, V.A.C.C.P., and annotations. Here we have a charge to the jury, albeit supplemental, and controlled by Article 36.19, V.A.C.C.P. As stated above and notwithstanding unreasoned assertions to the contrary, the charge at issue here is clearly calculated to injure the rights of the appellant and is reversible. Further, the charge was not a “necessary” one authorized under Article 37.07, Section 3(b), V.A.C.C.P.
Finally, even if not clearly calculated to injure appellant, I believe under the case law relevant to this issue there is a sufficient basis for presuming harm. See Jewell v. State (Nos. 58,315-58,321, decided November 29, 1978, rehearing granted January 10, 1979); Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690; Fletcher v. State, 137 Tex.Cr.R. 191, 128 S.W.2d 404; Christian v. State, 135 Tex.Cr.R. 42, 117 S.W.2d 1094; Sulak v. State, 118 Tex.Cr.R. 112, 40 S.W.2d 157; Billings v. State, 92 Tex.Cr.R. 628, 245 S.W. 236, 237; Thompson v. State, 91 Tex.Cr.R. 234, 237 S.W. 926, 928; Grider v. State, 82 Tex.Cr.R. 124, 198 S.W. 579; Bragg v. State, 73 Tex.Cr.R. 340, 166 S.W. 162; Robbins v. State, 57 Tex.Cr.R. 8, 121 S.W. 504. The appellant did not receive the minimum, thereby precluding a conclusion of harm. McCoy v. State, 122 Tex.Cr.R. 298, 54 S.W.2d 530; Ramirez v. State, 43 Tex.Cr.R. 455, 66 S.W. 1101; Brown v. State, 62 Tex.Cr.R. 592, 138 S.W. 604; Green v. State, 66 Tex.Cr.R. 446, 147 S.W. 593; Clark v. State, 78 S.W. 1078 (Tex.Cr.App.).
In conclusion, the jury should not be authorized to negate legislated procedural rules by being advised what the effect of the rules will be on their decisions. In return for permitting the State to consolidate offenses against property, the Legislature decided that a quid pro quo of concurrent sentences was in order. The jury still has the evidence of the accused being a multiple offender before it, as well as the other evidence mentioned, and is not wallowing in the darkness of ignorance without an instruction on the law of Section 3.03, supra.
*731Believing the instruction complained of was calculated to injure the appellant’s rights to fair determination of the appropriate penalty and, in the alternative, that harm is present, the judgment should be reversed.