dissenting.
It is the duty of this Court to uphold the constitution, not to subvert it. Yet subversion is the goal of the majority opinion as it puts this Court’s seal of approval on lawlessness in the jury room.
In Pena v. State, 137 Tex.Cr.R. 311, 129 S.W.2d 667 (1939) the Court condemned prosecutorial jury argument regarding the parole law. The Court stated:
.. the jury, in a felony case, is not authorized to resort to or apply either the indeterminate sentence law or the parole law.... The parole law is not to be applied by the trial court, but is to be exercised by the board of pardons exclusively. ...”
A few years later, in Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1946) the Court relied on Pena v. State, supra, when it held:
“If State’s counsel could not argue to the jury the effect of the indeterminate sentence law, certainly a member of the jury could not do so.”
Both Pena and Price were reversed.
More recently, the cases of Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975); Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978), and Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982), have all stated clearly and demonstrated beyond question that the rule prohibiting jury consideration of the parole law is based on fundamental constitutional principles. The majority opinion in a cavalier fashion dismisses this rule, apparently ignorant of its constitutional foundation. It is stated by the majority, “It makes little sense to say that, without more, any mention or discussion by jurors of the parole laws is always jury misconduct.” The cases cited above did not state the rule “without more,” as deceptively characterized by the majority. In this regard it must be deduced that Mun-roe, Sanders, and Heredia, although cited by the majority, were either not read or simply ignored. This conclusion suggests itself for the simple reason that all three cases make quite clear the constitutional basis of the rule. In Sanders v. State, supra, quoted in Munroe v. State, supra, this explanation was given:
“ ‘It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it *268would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. It is well established under this Article that:
“(A) power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others_ And any attempt by one department of government to interfere with the powers of another is null and void.” Ex parte Giles, Tex.Cr.App. 502 S.W.2d 774 [1973]; Smith v. Blackwell, Tex.Cr.App., 500 S.W.2d 97 [1973], (Emphasis added).
'Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch, Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of the power by the executive branch is as much of an unconstitutional interference as is an attempted usurpation of that power. See, Ex parte Giles and Smith v. Blackwell, supra, for unconstitutional grants of authority to usurp clemency powers.
‘This is the constitutional basis for the established rule that discussion of the parole law is always jury misconduct....’”
Why has the majority totally ignored this constitutional principle?
Why has the majority decided to launch this revolt against the law? The only hint of cause is the quoted concurring opinion from Collins v. State, 647 S.W.2d 719 (Tex. App. 13th Dist.1982), that there is an “increasing frequency [of] cases alleging reversible error as the result of a jury’s discussion of parole.” What reason is there in this? We should change the law merely because it has been relied on? Even if such a reason were valid, which it obviously is not, one might at least be required to document the “increased frequency.” In my own examination of the reported decisions of this Court there appear to be eleven reversals for jury discussion of the parole law. Of these, three are decisions rendered after Heredia v. State, supra, and eight pre-date Heredia. This hardly demonstrates a floodgate of reversals flowing from Heredia.
It is also necessary to ask the majority what reason is there for the five part test they now adopt? Although the majority quotes the paragraph of Heredia that states the two extremes of standards for reversible error, no justification is given for adopting the unreasonable extreme selected. Certainly no great support for adopting that extreme can be found in the case law. Of the eight reversals for discussion of the parole law that pre-date He-redia, only one, Scaling v. State, 499 S.W.2d 318 (Tex.Cr.App.1973), would meet the test adopted today. Perhaps the majority is not aware that its radical position overrules the reversals in Meyers v. State, 418 S.W.2d 676 (Tex.Cr.App.1967); Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349 (1961); Smith v. State, 169 Tex.Cr.R. 315, 333 S.W.2d 385 (1960); Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13 (1959); Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191 (1954); Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952); and Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1946), all of which are pre-Heredia eases reversed for jury discussion of the parole law and none of which would satisfy today’s new test. Far from a return to an earlier established rule of law, the majority is opting for an extreme position from a single aberration for which no reason or justification is even attempted.
The “five prong” test adopted by the majority flies in the face of common sense. If the jury improperly considers the parole law during deliberations on punishment, the harm to the accused is not diminished simply because the parole law was correctly stated instead of misstated, or simply because it was not asserted as a fact or by one who did not profess to know the law. As stated in the dissent in Beck v. State, *269573 S.W.2d 786 (Tex.Cr.App.1978), “... wild speculation is just as harmful regardless of whether anyone professes to know whether those speculations are law or not.” It should also be obvious that an accurate statement of the parole law during jury deliberations can be just as harmful as an inaccurate one. Were it otherwise, it would not be error to include the parole law in the instructions to the jury, yet even the majority admit that it was proper to charge the jury “not to consider in deliberations on punishment how long he would be required to serve in order to satisfy the penalty assessed.” Since it is proper for the court to instruct the jury not to consider the parole law, and since it is improper for the prosecutor to argue that the jury should consider the parole law (Pena v. State, supra), how in the name of justice and the Texas Constitution can the majority say it is permissible for the jury to subvert the parole law?
Judge Davidson, dissenting in Salcido v. State, 167 Tex.Cr.R. 173, 319 S.W.2d 329 (1959), stated:
“The action of the jury, together with the method employed in arriving at the punishment in this ease, is susceptible of but one construction, that being that such action was a revolt by the jury against the commutation and good-behavior laws of this state and a denial to this appellant of the rights given him by those laws.
“The jury just simply did not want this appellant to receive the benefit of those laws, and took it upon themselves to fix a punishment that would prevent his receiving such benefit. Thus, the very body that were called upon to enforce the law and to preserve the right of trial by jury openly circumvented and took it upon themselves to deprive this appellant of his rights under the law.
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“The legislature wrote into the statute law of this state the parole, commutation, and good-behavior laws whereby one convicted of crime could, by his efforts, obedience, and behavior, earn credit upon his sentence. ti * * *
“... Certainly, the right does not lay with the juries of this state to defeat or nullify those laws or to deny to one convicted of crime the benefits of such laws.” (319 S.W.2d at 332-334).
Paraphrasing Judge Davidson’s dissent in Salcido, the majority opinion today is susceptible of but one construction, that being that such opinion is a revolt against the parole law and the Texas Constitution; this very Court, which is sworn to uphold the Constitution, has taken it upon itself to nullify the separation of powers doctrine and to endorse lawlessness in the jury room. To such action I must dissent.
TEAGUE and MILLER, JJ., join this opinion.