dissenting to the overruling of the State’s motion for Rehearing without Written Opinion.
I dissent to the overruling of the State’s Motion for Rehearing without written opinion. The panel opinion on original submission reversed the judgment, saying: “. . . there is no dispute that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation . ” and the opinion then concluded: “. . . the jury misconduct of discussion of the parole law was harmful and denied appellant a fair and impartial trial. The discussion was extensive and adversely affected two jurors’ consideration of the probation issue.” The rule applied is that: if there is extensive discussion of the parole law and a juror testifies he changed his vote the judgment will be reversed.
The panel, as did the appellant, relies on the dicta in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). In Heredia v. State, supra, after a review of a number of cases, it was said:
“The cases discussed establish that there has been an inconsistency of standards. Authority may be cited for a standard requiring a showing that (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment, before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful. Much distance lies between these extremes.
“In determining the law on this matter, we turn to the statutory foundation upon which the issue ultimately rests. Article 40.03, V.A.C.C.P., provides in part:
“ ‘New trials, in cases of felony, shall be granted for the following causes, and for no other:
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“ ‘Where the jury, after having retired to deliberate upon a case, has received other testimony; .
“ ‘8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial . . . ’
“Does jury discussion of the parole law requiring reversal constitute receiving other testimony after retiring to deliberate or misconduct that has deprived the defendant of a fair and impartial trial? Some decisions ordering reversal have indicated one ground, some the other.
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“We hold that either principle may apply, depending upon the facts of the case.1
*357If the inconsistency mentioned in Heredia existed, it has persisted since Heredia was decided. See e.g. Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978); Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978; Mcllveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977); Ashabranner v. State, 557 S.W.2d 774 (Tex. Cr.App.1977); Sweed v. State, 538 S.W.2d 119 (Tex.Cr.App.1976).
To show that a jury’s discussion of the parole law constitutes reversible error, we should readopt the test, extracted from a number of earlier cases, which was stated and discussed, but rejected in Heredia v. State, supra. That test is that for reversible error to result, it must be shown that there was:
(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher punishment.
The cases from which this test has been extracted are fully discussed in Heredia v. State, supra.
In applying this rule to the instant case we should first determine whether there was a misstatement of the law. One juror on the motion for new trial testified that another juror who professed to know the law stated that the appellant would not have to serve more than eight months if he behaved himself. Another juror testified that the juror who professed to know the law stated that a defendant sentenced to two years imprisonment would serve between six and eight months and would be eligible for parole. In resolving the conflict between these statements it may be decided that the statement made, by the juror professing to know the law, was that the appellant would be eligible for parole and would not have to serve more than eight months if his punishment were assessed at imprisonment for two years and he behaved himself. This was not a misstatement of the law. The appellant would be eligible for release on parole when his calendar time served plus good conduct time equals one-third of the maximum sentence imposed. Art. 42.12, Sec. 15(b). The maximum sentence assessed in the instant case is two years. Under the statutory provision the appellant, “if he behaved himself,” would be eligible for release on parole within eight months.
Reversible error has not been shown. The State’s Motion for Rehearing should be granted and the judgment should be affirmed.
ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ., join in this dissent.. In deciding the case of Heredia v. State, supra, it was said:
“We now examine the facts in this case to determine whether appellant is entitled to a new trial under either of the statutory grounds stated above. The record of the hearing on the motion for new trial shows that after the complained of statement the jury foreman promptly instructed the jurors that it would not be proper for them to consider the extraneous information communicated to them. It further reflects that thereafter the matter was not discussed.
“If the statement be considered ‘other testimony’ under Article 40.03(7), V.A.C.C.P., in view of the prompt instruction by the foreman and the fact that it was not thereafter discussed, we conclude that it cannot be construed as having been ‘detrimental to appellant.’ Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797; Grizzeil v. State, 164 Tex. Cr.R. 362, 298 S.W.2d 816. We likewise conclude, from the same considerations, that the statement complained of did not constitute misconduct depriving appellant of a ‘fair and impartial trial’ under Article 40.03(8), supra. *357E. g., DeLaRosa v. State, supra [167 Tex. Cr.R. 28, 317 S.W.2d 544],
“The ground of error is overruled.
“The judgment is affirmed.”