dissenting, on Court’s motion for rehearing.
Two basic issues have been ignored by this Court: first, and foremost, is appellant’s standing to raise claims of separation of powers violations; and second is this Court’s finding that appellant’s right to due course of law has been abrogated yet finding such abrogation “harmless.”
STANDING TO RAISE SEPARATION OF POWERS VIOLATION
One of the most fundamental tenets of appellate law, apparently overlooked by the majority, is the requirement that a party have standing to raise an issue before an appellate court. When challenging the constitutionality of a statute, it is incumbent upon the party raising the issue to show that in its operation, the statute is unconstitutional as to him in his situation; that it may conceivably be applied unconstitutionally to others is not sufficient. Parent v. State, 621 S.W.2d 796, 797 (Tex.Cr.App.1981), and cases cited therein. To establish standing, the party must show that he is injured, or that his rights are abrogated in the application of the alleged unconstitutional statute. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943).
Thus, in Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987), before any discussion was had as to separation of powers, this Court properly determined the threshold issue of the Freestone County attorney’s standing to complain. There we wrote:
“... We must first determine whether the Freestone County attorney is entitled to protection under Article II, § 1, supra.
“The office of the county attorney, as well as district and criminal district attorney, is established in Article V, § 21, of the Texas Constitution....
“By establishing the office of county attorney under Article V, the authors of the Texas Constitution placed those officers within the Judicial department....
it * * *
“The Freestone County Attorney, having been granted the exclusive right within the Judicial department ‘to represent the State in all cases in the District and inferior courts’ is entitled to be protected by the separation of powers doctrine contained in Article II, § 1, supra....” Meshell, 739 S.W.2d at 253 (footnotes omitted and emphasis added).
Appellant is not a member of any branch of government and is not a member of the Board of Pardons and Paroles whose power is supposedly usurped by Article 37.07, Section 4, V.A.C.C.P. Appellant is vicarously asserting a separation of powers violation in contradiction to established guidelines of *559constitutional law. The majority’s finding a separation of powers violation for defendant is untenable.
“HARMLESS” DUE COURSE OF LAW VIOLATION
The majority has found a “harmless” due course of law violation. This Court has previously determined that:
“[D]ue process is in itself essentially the same as fairness. Or at the very least, due process is the vehicle used to arrive at fairness thereby protecting our fundamental rights. Accordingly, ‘a fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).” Long v. State, 742 S.W.2d 302, 320 (Tex.Cr.App.1987), cert. denied, — U.S. -, 108 S.Ct. 1301, 99 L.Ed.2d 511, 43 Crim.L.Rev. 4001 (1988).
Thus, if there is a finding of a due course of law violation (and consequently a finding that the defendant’s trial is fundamentally unfair) how can such ever be susceptible to a harmless error analysis? An unfair trial is an unfair trial, as long as the majority persists in finding a “harmless” unfair trial, by necessary implication the majority has found no due course of law violation. The majority’s finding a harmless due course of law violation has led to an inconsistent opinion: One need only examine the majority opinion in this case and compare it to the opinion on its own motion for rehearing.
Judge Clinton, writing the majority opinion on original submission, stated:
“[I]n the fifth paragraph ... the jury is instructed: ‘You may consider the existence of the parole law and good conduct time.’ That is to say, when it comes to assess punishment the jury may deliberate on the content of what has been stated in the preceding four paragraphs [outlining the parole and good conduct time laws] in making a decision as to the number of years it will assess as punishment.” Majority opinion p. 535 (footnote omitted; emphasis in original).
The entire majority opinion, finding both a separation of powers violation and a due course of law violation, is inextricably hinged upon the jury’s consideration of the parole and good conduct time possibilities. Judge Campbell’s opinion on the motion for rehearing, however, finds that the jury was told not to consider the parole law and, remarkably, the Court presumes that they obeyed this instruction and thus the error was harmless. In essence, the majority finds in the same opinion that the statute violates due course of law because the jury considered the parole laws yet such was harmless because the jury did not consider the parole laws.
It is to these inconsistencies that I must dissent.
WHITE, J., joins in this dissent.