dissenting on appellant’s petition for discretionary review.
A Rose by any other name is a justly convicted appellant walking the streets of Texas with other guilty felons who will be released from the consequences of their convictions as a result of this decision. Today, the result oriented majority has produced a false flower of fairness camouflaged in the pseudonym of justice.
There is so much wrong with the majority opinion that to dissent in full would require the writing of at least a two volume treatise entitled “Judicial Legislation: A Means to an End.” Ignoring a constitutional amendment approved by the people of the State of Texas, the majority, without logic, rationale or conscience, strikes down a statute which passes judicial muster in every jurisdiction that has addressed comparable law. Perceiving that the jury charge complained of here catches the appellant in an unconstitutional Tinker to Ev-ers to Chance1 double play, the majority of “independent” umpires calls foul.
One need only read the first paragraph of the majority opinion to recognize the quicksand upon which the decision rests:
“Based solely on the Constitution and laws of the State of Texas, we will find such an instruction, as well as the mandating statute, is unconstitutional.” Rose, p. 531.
To avoid later review by our United States Supreme Court, the majority attempts to solidify its due process conclusions on State grounds and thus deprive the people of the State of Texas of their due course of law. Yet, to reach the due course of law issue the majority cites decisions of this Court which rely entirely on United States Supreme Court cases: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978); and Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), or cases which are clearly distinguishable from the facts presented here.
In footnote 9 of his opinion, Judge Clinton makes a passing reference to the landmark decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (On Rehearing) noting that merely because the parole law instruction was given, reversal is mandated. Judge Clinton seems to have forgotten a valuable contribution that he made to Texas jurisprudence through the case of Almanza.2
*546As we all know Almanza was the precedent-setting decision handed down by this Court which set out the sole standards to be used in reviewing both preserved error and unpreserved error in the court’s charge to the jury. Since the issue before the Court concerns an instruction to the jury— specifically, the parole law instruction mandated by Article 37.07, Section 4, V.A.C.C. P., — review must be had by the standards enunciated in Almanza.
“If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of the defendant,’ which means no more than there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.
“On the other hand, if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’
“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” 686 S.W.2d at 171.
“We hold that finding error in the court’s charge to the jury begins — not ends — the inquiry; the next step is to make an evidentiary review ... as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused. See also Woods v. State, 653 S.W.2d 1 (Tex.Cr.App.1983) adopting dissenting opinion in Hill v. State, 640 S.W.2d 879 (Tex.Cr.App.1982); Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.1980); and Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980).
“To the extent that it holds any charge error requires ‘automatic’ reversal, Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979) is overruled, as are all other opinions inconsistent herewith.” 686 S.W.2d at 174.
*547See also Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986); Teague v. State, 703 S.W.2d 199 (Tex.Cr.App.1986).
Under this Court’s holding in Almanza, a determination of whether fundamental error exists in a jury charge requires a case-by-case analysis. Lawrence v. State 700 S.W.2d 208 (Tex.Cr.App.1985). No longer may this Court or any court of appeals announce a per se rule of reversal for any specific error in the charge — such as the application of an unconstitutional statute in a jury charge. Thus the majority is in error in its initial approach to the analysis of the case.
With that premise in mind, I now make a correct analysis of the instant case, using the two step analysis espoused by Judge Clinton in Almanza.
I.
The first step necessary to an Almanza analysis is a determination of whether there was error in the jury charge. As will be seen, infra, not only is the majority incorrect in holding the statute and jury charge unconstitutional, there is not even any error. The majority determines unconstitutionality on two grounds. First, that such a jury charge unconstitutionally violates the separation of powers provision of Art. Ill, Sec. 1, TEX. CONST., and, secondly, is unconstitutional as a violation of the Due Course of Law clauses of Art. I, Secs. 13 and 19, TEX. CONST. In its zealousness to get quickly to the matter of reversing this conviction, the majority carefully ignores any discussion regarding the rules of statutory construction where constitutionality is the issue. And for good reason —the established and well-settled law dictates against the conclusions of the result-oriented majority.
Under both federal due process considerations and our own State law, the determination of the constitutionality of a statute begins with the presumption that a statute is constitutional. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978). Likewise in both the federal and Texas jurisdictions, courts should seek to interpret statutes such that their constitutionality is supported. United States v. National Dairy Products, Inc., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1962); Faulk v. State, 608 S.W.2d 625 (Tex.Cr.App.1980); Ex parte Granviel, supra. And the wisdom of a legislative act is within the legislative prerogative, not within the wisdom of this, or any other court. Smith v. Davis, 426 S.W.2d 827 (Tex.1968).
The fact that opinions may differ as to the constitutionality of a statute should not be a sufficient basis to strike down the legislation. Instead, it should militate in favor of constitutionality, unless it is so apparent that reasonable minds could not differ. Under the rules of statutory construction, before a court declares a statute unconstitutional, some deference should be paid to decisions of other courts which have construed the same provisions. Yet today, the majority ignores the interpretation of every court of appeals of this State which has considered the issue. See Torres v. State, 725 S.W.2d 380 (Tex.App.—Amarillo 1987); Garcia v. State, 725 S.W.2d 385 (Tex.App.—Amarillo 1987); Mathews v. State, 725 S.W.2d 491 (Tex.App.—Corpus Christi 1987); Colter v. State, 724 S.W.2d 925 (Tex.App.—Austin 1987); Alvarado v. State, 723 S.W.2d 318 (Tex.App.—Austin 1987); Rose v. State, 724 S.W.2d 832 (Tex.App.—Dallas 1986); Boudreaux v. State, 723 S.W.2d 230 (Tex.App.—Beaumont 1986); Joslin v. State, 722 S.W.2d 725 (Tex.App.—Dallas 1986); Casares v. State, 712 S.W.2d 818 (Tex.App.—Houston [1st Dist.] 1986); Patton v. State, 717 S.W.2d 772 (Tex.App.—Fort Worth 1986); Zaragosa v. State, 721 S.W.2d 429 (Tex.App.—Corpus Christi 1986); Hardy v. State, 722 S.W.2d 164 (Tex.App.—Houston [14th Dist.] 1986); Ruiz v. State, 726 S.W.2d 587 (Tex.App.—Houston [14th Dist.] 1987); Gaines v. State, 723 S.W.2d 302 (Tex.App.—San Antonio 1987); Garcia v. State, 725 S.W.2d 385 (Tex.App.—Amarillo 1987); Smith v. State, 727 S.W.2d 344 (Tex.App.—Houston [1st Dist.] 1987); Aranda v. State, 723 S.W.2d 788 (Tex.App.—El Paso 1987); Clark v. State, 721 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1986); McGowan v. *548State, 729 S.W.2d 316 (Tex.App.—Dallas 1987); Carter v. State, 727 S.W.2d 108 (Tex.App.—Fort Worth 1987); Salazar v. State, No. 02-86-00059-CR (Tex.App.—Fort Worth, March 12, 1987); Winton v. State, 727 S.W.2d 687 (Tex.App.—Texarkana 1987); Sanders v. State, 727 S.W.2d 674 (Tex.App.—Texarkana 1987); Flores v. State, 727 S.W.2d 691 (Tex.App.—San Antonio 1987); Foy v. State, 726 S.W.2d 263 (Tex.App.—Waco 1987); Miller v. State, 723 S.W.2d 789 (Tex.App.—Dallas 1987); Hernandez v. State, 730 S.W.2d 35 (Tex.App.—Corpus Christi 1987); and many more too numerous to list further.
Without judicial logic or controlling precedent, the majority tells the justices of the courts of appeals they were in the wrong ballpark, and reverse their judgments without a rational explanation to them of why their opinions were out of the strike zone. Our learned brethren on the courts of appeals deserve more. The majority fails even to explore the possibilities that the statute is valid, thus ignoring all rules of statutory construction.
A. Separation of Powers
Relying primarily on the historical view that parole was an executive function, the majority concludes that the 1983 amendment to Art. IV, Sec. 11, TEX. CONST, did not alter the position of the Board of Pardons and Paroles as an agency of “constitutional status in the Executive Department,” and, despite such amendment “remains where it has always been — in the Executive Department.” Such conclusion is nothing more than the “opinion” of the result-oriented majority and maliciously ignores the facts!
As noted in the majority opinion, the 1936 amendment to Art. IV, Sec. 11, was in response to gubemtorial abuse of the clemency power. The creation of the Board of Pardons and Paroles as a constitutional body was designed “to limit the clemency powers of the Governor by providing that in all criminal cases except treason and impeachment, after conviction, ‘on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons.’ ” Commentary, Art. IV, Sec. 11, TEX. CONST.
It was, like in 1936, gubernatorial abuse that led to the 1983 amendment. Legislative disgust with the governor’s increased failure to follow parole recommendations of the Board of Pardons and Paroles prompted the proposed amendment to remove parole entirely from the Governors clemency powers.3 Today, no mention is made in the Texas Constitution relative to the executive branch having any function or authority relative to paroles. The majority implies that since the constitutional authority for the Board of Pardons and Paroles remains in Art. IV, TEX. CONST., the agency is therefore an executive agency. Hogwash! It still appears there because that is the article and section which required amendment to remove parole from the executive branch — a concommitant limitation on the executive branch.
In confusing Art. IV, Sec. 11, TEX. CONST., and Art. II, Sec. 1, TEX. CONST., together, we must pay particular attention to the latter constitutional provision. The function of Art. II, Sec. 1, is generally conceded to be to prevent the concentration of power in the hands of a single person, class or group. The provision is designed to facilitate the system of checks and balances between the three distinct branches of government and to prevent one branch from usurping the powers granted by the people to one or more of the other branches of government. See Commentary, Art. II, Sec. 1, TEX. CONST.
It must be remembered, that in determining the present case, there is a clear expression in the Constitution that the parole component of the clemency power has been removed from the Governor (Executive).
“Thus, it is not exactly correct to state the principle of separation of powers as *549absolutely prohibiting performance by one department of acts which by their essential nature belong to another. Rather, the correct statement is that a department may constitutionally exercise any power whatever its essential nature, which has, by the Constitution, been delegated to it; but that it may exercise powers not so constitutionally granted which from their essential nature do not fall within its division of governmental functions.” Commentary, Art. II, Sec. 1, TEX. CONST.
The Austin Court of Appeals has summarized the law quite succinctly:
“We believe that it is well settled that this constitutional prohibition states a principle of government and not a rigid classification as in a table of organization. This provision must be interpreted along with other constitutional provisions, and when this is done it is clear that the Constitution does three things; (1) it provides for three polar functions of government; (2) it delegates certain powers to each of the three departments in a distribution of all governmental powers; and (3) it blends legislative, executive and judicial powers in a great many cases. (Footnote omitted). The proper interpretation of Art. II, Sec. 1 is therefore dictated by its context. The proper interpretation is that this provision “prohibits a transfer of a whole mass of powers from one department to another and it prohibits a person of one branch from exercising a power historically or inherently belonging to another department. It may not be interpreted in a way that prevents cooperation or coordination between two or more branches of government, hindering altogether any effective governmental action. It was designed, as were other checks and balances, to prevent excess. State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846 (1958).” Coates v. Windham, 613 S.W.2d 572 (Tex.Civ.App.—Austin, 1981, no writ). (Emphasis supplied)
As noted supra, and as recognized in dictum by this Court in Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1979), the parole component of the clemency power has historically been vested in the executive branch of government. But this is no longer true. Today the parole function is granted to the Legislature by the Constitution and delegated by the Legislature to the Board of Pardons and Paroles.
In Haynie v. State, petition granted (No. 024-87, pending), the Assistant District Attorney has provided an excellent analysis of the issue. I quote extensively from the brief filed by Pamela Sullivan Berdanier:
“Insofar as the separation of powers argument was applied in Sanders, [supra], the opinion first quoted language taken from a footnote in the Court’s earlier opinion in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). Sanders, at 351. However, when one turns to Heredia to examine this footnote more closely, it is clear that the holding of Heredia is that it was proper for the trial court to submit a charge to the jury informing them not to deliberate on how long a defendant would be required to serve in order to satisfy a sentence, because the determination to grant parole is beyond the province of the jury and the courts. Rather, parole is ‘exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch. Art. IV, Sec. 11, Texas Constitution.’ Heredia, at 853, n. 4.
“Thus, insofar as it is applicable to the present issue, the holding of Heredia establishes two points which are contrary to [the majority’s position]: 1) even without express statutory authorization by the Legislature, the trial court may properly charge the jury that it is not to consider the parole laws in assessing the defendant’s sentence (the function, the State would submit, of the charge complained of here) and 2) that pursuant to TEX. CONST, art. IV, Sec. 11, admission of a convict to parole is a power granted to the executive branch under proper regulation by the legislative branch [which is no longer true in light of the 1983 constitutional amendment], which the judiciary may not usurp.
*550“Before proceeding with the analysis addressing the question of among which branches of government Art. IV, Sec. 11 and other constitutional provisions presently place the parole component of the clemency power, it is necessary to briefly digress to discuss the other opinions, Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974) and State ex rel Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973), cited in Sanders for the proposition that clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch. Sanders, at 580 S.W.2d 351-52. The Smith opinion dealt with the validity of Sec. 4.06 of the Controlled Substances Act, TEX. REV.CIV.STAT.ANN. art. 4476-15 (Vernon 1974). In 1973 the Legislature had, by adoption of Sec. 4.05 of the Controlled Substances act (sic), reduced the penalties for offenses involving marijuana (sic) below those prescribed by TEX.PENAL CODE ANN. Sec. 725b (Vernon 1925). Section 4.06 provided that any person previously convicted for marijuana-related (sic) offenses should be, upon petition to the convicting court, resentenced pursuant to the penalty provision (Sec. 4.05) of the Controlled Substances Act. Smith, at 102-03. The Court of Criminal Appeals held that this compelled ‘resen-tencing’ of a person already convicted and sentenced amounted to a ‘commutation’ of the previously imposed sentence. Smith, at 103-04. Because the power to commute sentences was given to the governor by Art. IV, Sec. 11, the court held that the legislature could not alter previously imposed sentences in this fashion, nor could it clothe the judiciary with this power. Therefore, the Court struck down Sec. 4.06 of the Controlled Substances Act.
“In Giles, the same approach was utilized by the Court to strike down Sec. 6.01(c) of the newly enacted Controlled Substances Act, which provides for re-sentencing under the provisions of the Controlled Substances Act for offenses committed prior to its effective date. With regard to Giles, who had been sentenced before the effective date of the Controlled Substances Act, the Court held, as it had in Smith, that Art. IV, Sec. 11 barred ‘resentencing’ of previously convicted defendants since it amounted to a commutation of a previously imposed sentence. Giles, at 783-786.
“Three points should be made with regard to Smith and Giles:
1) Both cases involve claims of a statutory right to a reduction of a previously imposed sentence. These changes in the sentences were not theoretical, but real and specific.
2) In both cases, the governor’s power to commute sentences, not his power to admit convicts to parole, was found to be usurped by the legislature’s enactment of the resentencing provisions contained in the Controlled Substances Act. Commutation is a greater form of clemency than conditional parole. Ex parte Lefors, 165 Tex.Crim. 51, 303 S.W.2d 394 (1975 [1957]).
3) Smith and Giles have absolutely nothing to do with the wording of jury charges.
“At this point, we can turn from a discussion of the prior case law to the discussion of the express provisions of TEX. CONST, art. IV, Sec. 11.
“The first paragraph of Sec. 11 gives the legislature the power to establish a Board of Pardons and Paroles and to require it to record and give reasons for its actions and to enact parole laws. The second paragraph of Sec. 11 deals with the governor’s powers to grant ‘reprieves, commutations of punishments and pardons’ and to ‘remit fines and forfeitures,’ but even these powers may be exercised by the governor only with a written recommendation of the Board of Pardons and Paroles. With this grant of constitutional authority, the legislature, pursuant to TEX.CODE CRIM.PROC. ANN. art. 42.18, Sec. 1 (Vernon Sup. 1986), has designated the Board of Pardons and Paroles as ‘the agency of the State government with exclusive power to determine paroles.’ Pursuant to Sec. 3(d) of Art. 42.18, supra, the Board of Pardons and Paroles makes the determi*551nation of who shall be paroled under what conditions and level of supervision, and also determines the issuance of parole revocations.
“Thus, while Art. IV, Sec. 11, at the time of its adoption in 1876, placed the parole component of the clemency power exclusively in the hands of the governor, the section as amended clearly places parole under the control of the legislature, with the only limitation on the exercise of that power being that the legislature must act through the Board of Pardons and Paroles, which the legislature is left free to control (via the enactment of statutes) through its exercise of this constitutional authority.
“The fact that Art. IV, Sec. 11 is retained in that portion of the constitution which described the executive department is simply an historical accident stemming form the fact that under the language of Art. IV, Sec. 11, and adopted in 1876, the parole power, along with all other aspects of the pardoning or clemency power was placed in the hands of the governor. Clearly, the power of clemency, while traditionally held by the king or other head of state {see Commentary to Art. IV, Sec. 11) can be lodged in whichever branch of government the people desire. Ex parte Miers, 124 Tex.Crim. 592, 64 S.W.2d 778 (1934 [1933]). The 1983 amendment to Art. IV, Sec. 11, removing the governor’s power to revoke paroles, was the final step in the transmission of the parole power component of the clemency power from the governor to the legislature.
“That the Constitution mandates that the legislature must delegate the administration of the parole function to a board of Pardons ad Paroles, in no way implies that the executive branch of the government retains any constitutional authority over the parole process. Likewise, the fact that the legislature has elected to delegate to the governor the power to appoint members of the Board of Pardons and Paroles, in no way diminishes its constitutional authority with regard to the parole power. See generally, Ex parte Granviel, 561 S.W.2d 503, 514 (Tex.Cr.App.1978).
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“Because the parole power component of the clemency power is solely the constitutional province of the legislature, it has decreed that the courts shall give jurors the instructions mandated by Art. 37.07, Sec. 4, supra. Such instructions are designed to prevent jurors from considering parole when assessing punishment.” State’s brief, pp. 7-12. (footnotes omitted) (material in brackets added)
B. Due Course of Law
The majority also concludes that Article 37.07, Sec. 4(a) violates the due course of law provisions of Art. I, Secs. 13 and 19 in that it denies an accused of his right to a fair and impartial trial on the issue of punishment. This conclusion rests on the premise that the jury instruction impose “[t]he risk that punishment will be based on extraneous considerations ...” because “often jurors cannot resist the temptation to discuss parole laws.” In other words, the majority presumes that a jury will disregard their instructions that they “are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant,” and “are not to consider the manner in which the parole law may be applied to this particular defendant.”
In Keady v. State, 687 S.W.2d 757 (Tex.Cr.App.1985), the author of today’s majority opinion, while writing in dissent, suggested a pattern jury charge to explain to jurors why parole matters should not be considered:
“Further you are instructed that the determination to grant parole, if and when made, rests on many facts and events not now known, for the simple reason that they have not yet occurred at time of trial. Since it cannot be predicted at this time when or even whether parole will be granted, you are not to mention, refer to, discuss or consider how long the defendant might be required to remain confined to serve the *552punishment you assess and the sentence the court will impose. Such matters come within the exclusive jurisdiction to be exercised at some time in the future by the Board of Pardons and Paroles, and to some extent by the governor of this State, and they are beyond the province of courts and, therefore of the jury as well.” Keady, supra, at 762 (Clinton, J., dissenting).
And in the same dissenting opinion, Judge Clinton states:
“Let us accept that jurors are reasonable and sensible persons who can be trusted to follow their oath and instructions from the trial court when they are made to understand the reason they are not to discuss parole.” Keady, supra, at 762. (Emphasis in original).
The majority today finds offensive a jury instruction taken in part almost verbatim from Judge Clinton’s opinion in Keady, supra, and strikes it down because jurors can no longer be trusted to follow their instructions.
Not only has the majority had a change of heart about the trustworthiness of jurors, they today express a change of heart as to the interpretation of the due course of law provisions of our own Texas Constitution. It has long been settled law in Texas that the due course of law provisions of Art. I, Sec. 19, TEX. CONST, were meant to be construed in the same way as the Fourteenth Amendment of the United States Constitution. Mellinger v. City of Houston 68 Tex. 37, 3 S.W. 249 (1887). And the cases the majority relies on to support such conclusions rely on the Fourteenth Amendment or cases based thereon, e.g., Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158 (1955), relies on Lisenba v. People of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941).
Until today, the constitutional due process issue presented would have been quickly disposed of by merely citing California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). There, the same due process argument made in the instant case was rejected by the Supreme Court as not violative of federal due process.
II.
Clearly, the majority errs on both bases upon which Art. 37.07, Sec. 4(b) is today declared unconstitutional, and no error exists in giving the instruction. Even if it is error, I concur with Judge Onion that Al-manza should be applied and there is no egregious harm in this case.
For all of the above reasons, I dissent.
W.C. DAVIS and WHITE, JJ., join this dissent.. In 1946, Joe Tinker (SS), Johnny Evers (2B), and Frank Chance (IB) were elected to the National Baseball Hall of Fame in Cooperstown, New York. Today’s majority opinion will undoubtedly replace “Almanza the Terrible" in Judge Teague’s "Hall of Fame” of bad opinions.
. At the time he wrote Almanza, Judge Clinton wrote broadly, holding that all “fundamental error” in the court’s charge must be reviewed *546pursuant to the tests set out in Almanza. Recently however, apparently having undergone a change of heart, Judge Clinton has hedged on that premise, particularly in his dissent in Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985), where he wrote:
‘In Cobarrubio [v. State, 675 S.W.2d 749 (Tex.Cr.App.1983) ] we said that ‘this error precipitated a denial of due process of law in the most FUNDAMENTAL sense,' id., at 752. Thus, ‘Co-barrubio error’ is constitutional error, just as recognized in headnote 1 and by opinion in several decisions collected under it in Texas Digest. So did all judges more than two years ago in Jenkins v. State, [740 S.W.2d 435] No. 64,004, delivered February 16, 1983, but still pending on rehearing. In this very cause, as well as Cobarrubio, the Austin Court of Appeals relied on three decisions by the Supreme Court of the United States to underscore its own determination that fundamental error of constitutional dimension was presented by the State. The strength of that assessment by the Court in Cobarrubio is not weakened by the mere fact that it was made in the context of an objection to the charge.
"Though ‘Cobarrubio error’ not preserved for appellate review 'would have necessitated automatic reversal’ under one group of decisions classified in Cumbie [v. State, 578 S.W.2d 732 (Tex.Cr.App.1979)] as fit and proper for appellate consideration and reversal, it does not follow that ‘Cobarrubio error’ qua error is no longer 'a denial of due process in the most fundamental sense,’ id., at 753. Overruling Cumbie did not serve to change the nature and character of an error....
"... [Almanza] overrules Cumbie only ‘[t]o the extent that it holds any charge error requires “automatic” reversal,’ Almanza, at 174; we did not purport to say errors catalogued in Cumbie are no longer ‘reversible.’ Indeed, our remand to the Fort Worth Court of Appeals was ‘to make such examination in light of considerations expressed in part II of this opinion,’ ibid.
"Let it be clearly understood that an egregious error must first be found before an appellate court takes the next step ‘to make an evidentiary review along the lines of that described in Davis’ [v. State, 28 Tex.Ct.App. 542, 13 S.W.2d 994 (1890) ] and to review any other pertinent part of the record for actual harm. But obviously there are some errors so egregious that such a review will not save them. Nowhere in Alman-za did we say, “This Court no longer recognizes per se reversible jury charge error,’ as intimated in the majority opinion." 700 S.W.2d at 217-218. (emphasis in original)
. File, Legislative Reference Library, S.J.R. 13, Acts 1983, 68th Leg., and accompanying file audio recordings of hearings.