dissenting.
I respectfully dissent. Under a TEX.R. APP.P. 81(b)(2) analysis, I am unable to determine, beyond a reasonable doubt, that the use of the parole instruction made no contribution to the punishment. Therefore, I would reverse for a new punishment hearing.
The majority enunciates a three-factor test under Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (opinion on rehearing), as (1) curative instructions, (2) prior criminal record of the accused, and (3) aggravated and/or heinous facts. In an attempt to comply with this three-factor test, the majority finds there was a strong and clear curative instruction given to the jury. The court did not give the curative instruction in Rose which was the traditional instruction used prior to the statutory instruction. Therefore, factor one is not present.
Factor two is also distinguishable from Rose. In Rose, at the punishment stage, the jury had evidence of five prior convictions. In the instant case, no evidence was presented at the punishment stage. The majority relies upon an extraneous offense admitted into evidence during the guilt/innocence stage, with an instruction that it was to be considered only in determining intent and knowledge, as being “prior activities and criminal endeavors ... strongly supportive of the jury’s verdict.” Here again, the majority overreaches in their attempt to satisfy the Rose factors.
*280The majority equates the seriousness of the primary offense” to aggravated and/or heinous facts. I agree that the importation of cocaine is a serious offense. The legislature obviously felt the same way because they (1) criminalized the activity and (2) increased the punishment when the amount exceeded four hundred grams. The majority, however, does not point to any aggravated or heinous conduct other than the offense itself. This is not enough to satisfy the third Rose factor. See Shorten v. State, 764 S.W.2d 358, 361 (Tex.App.— Beaumont 1989, pet. ref d) (dissenting opinion).
A final, and perhaps more important, consideration is the fact that the parole instruction was argued by the state. Several cases have been reversed because of this. See Howell v. State, 757 S.W.2d 513 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d); Morris v. State, 755 S.W.2d 505 (Tex.App.—Houston [1st Dist.] 1988, pet. ref d). In Woods v. State, 766 S.W.2d 328 (Tex.App.—Houston [14th Dist.] 1989, no pet.), the court, while observing that the facts of the offense justified the sentence, reversed in light of the prosecutor’s argument of the parole law instruction. This argument, coupled with the scarcity of the Rose factors, should result in a reversal; since it does not, I respectfully dissent.