dissenting.
I dissent to the majority’s treatment of appellant’s sixth point of error involving a punishment jury charge instruction stating that the jury could not consider the minimum time that appellant would have to serve before becoming eligible for parole.1 Specifically, point six avers as follows:
Appellant was denied the due process/course of law in violation of the Fourteenth Amendment to the United States Constitution and Article 1, §§ 13 and 19 of the Texas Constitution, when the trial court, over objection, proffered a punishment instruction admonishing the jury that it could not consider the minimum time appellant would have to serve before becoming eligible for parole.
The majority cites our plurality opinion in Smith v. State, 898 S.W.2d 838 (Tex.Cr.App. 1995), cert. denied, — U.S.-, 116 S.Ct. 131, 133 L.Ed.2d 80, and simply adopts the reasoning therein. I dissent to that approach for disposition.
The record reflects that the trial court included the following instruction within the punishment jury charge.
During your deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles division of the Texas Department of Criminal Justice or of the Governor, or how long the defendant would be required to serve to satisfy a sentence of life imprisonment.
The record reveals that while appellant’s objection/request at trial did not verbatim correspond with his above-quoted point of error, it was clearly complaining about the jury being prevented from considering that the law required appellant to serve a minimum of fifteen years incarceration if sentenced to life rather than death.
Specifically, the record reflects that when asked whether the defense had any objections to the punishment jury charge, appellant replied that he had “both an objection and a requested charge.” He then requested and objected to the jury charge “as fail[ing] to contain a parole charge that, in essence, would inform the jury and instruct [the jury] *923that if [he] received life in prison, that he would not be eligible for parole under any circumstances until he had served at least fifteen calendar years in prison.” He further argued that based upon the evidence in the case, it was important for him to argue and to have the charge instruct the jury in terms of parole law so that it would know that and could determine where appellant would be in the future. He added that such was critical to the jury’s decision with respect to the future dangerousness and mitigation special issues. Clearly, a fair reading of the record reveals that appellant’s trial objection/request complained about the jury being prevented from considering that the law required appellant to serve a minimum of fifteen years incarceration before becoming eligible for parole if sentenced to life rather than death. The trial court overruled appellant’s objection/request. Thus his claim of error was preserved.
In light of Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), due process and due course of law may require, in the face of a proper request, that the jury be informed of the amount of time a defendant must serve before becoming eligible for parole when sentenced to life for capital murder. The Supreme Court observed in Simmons that “prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendant’s future dangerousness in their evidence and argument at the sentencing phase; they urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison.” Simmons, — U.S. at -, 114 S.Ct. at 2193, 129 L.Ed.2d at 142, citing Eiseberg & Wells, “Deadly Confusion: Juror Instructions in Capital Cases,” 79 Cornell L.Rev. 1, 4 (1993). Moreover,
“[i]n assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole.”
Simmons, — U.S. at -, 114 S.Ct. at 2194, 129 L.Ed.2d at 142.
In the instant cause, the jury was required to answer the future dangerousness special issue which asked whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Appellant presented evidence of his age, 37 at the time of trial, and expert testimony as to the decline in propensity for violence as men age and spend long periods of time in prison, and of appellant’s ability to function and live peaceably in a prison environment. In my view, in the face of such evidence, and the jury having to answer the future dangerousness special issue as to whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society, due process and due course of law required that the jury be informed of the fact that appellant must serve fifteen years incarceration in prison before becoming eligible for parole if sentenced to life rather than death.2
Thus I disagree with and dissent to the majority’s blind adoption of the reasoning in the Smith plurality.3
. Points five and seven aver denial of due process/course of law, and cruel and unusual punishment in disallowing “testimony that appellant would never be paroled” as relevant to the issue of whether he would be a continuing threat to society. However, although appellant proffered opinion testimony that appellant would never be paroled, it is well-settled that the granting of parole is discretionary and not definite. See Article 42.18, V.A.C.C.P.
Point eight alleges denial of the right to be free from cruel and unusual punishment in refusing to submit appellant’s requested instruction that he would have to serve a minimum of fifteen years before becoming eligible for parole, which had mitigating relevance to the issue of whether he would be a continuing threat to society. However, his argument under this point continues to focus upon proffered testimony that he "would never be paroled" and simply adds that refusing his requested instruction "prevented the jury from weighing the mitigating effect of punishment testimony that [he], given his age, would not likely pose a future threat while incarcerated or thereafter.” I have previously expressed my view that information about the effect of parole is not necessarily within the ambit of mitigating evidence. See Willingham v. State, 897 S.W.2d 351, 360-61 (Tex.Cr.App. 1995), cert, filed, July 25, 1995. I also observe that Simmons v. South Carolina, —• U.S. --, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) involved a violation of due process protections, rather than the prohibition against cruel and unusual punishments, in not informing the jury of the particular parole restrictions; in particular, the opinion of the Court specifically expressed no opinion as to whether its result was compelled by the Eighth Amendment. Id., -U.S. at-, 114 S.Ct. at 2187, 129 L.Ed.2d at 141, n. 4.
. Under the present law, a prisoner serving a life sentence for capital murder is not eligible for release on parole until he has served 40 years. Article 42.18, § 8(b)(2), V.A.C.C.P.
. In light of the majority’s refusal to acknowledge the due process and due course of law error, I see no need to delineate a harm analysis. However, when, or if, the majority sees the light and recognizes such error, a harm analysis will be appropriate. See, e.g., Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984) (op. on reh’g), but see Rose v. State, 752 S.W.2d 529, 553-54 (Tex.Cr.App.1987) (op. on reh’g), Arnold, v. State, 786 S.W.2d 295 (Tex.Cr.App.1990), cert. denied, 498 U.S. 838, 111 S.Ct. 110, 112 L.Ed.2d 80 (1990), and Tex.R.App.Pro. 81(b)(2). In the instant cause, such analysis would obviously involve consideration of the evidence of the facts of the offense and of appellant's prior convictions *924and unadjudicated offenses/acts, counsels’ jury arguments, and the remainder of the jury charge.