Full opinion text
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW CLINTON, Judge. In this cause we decide whether an instruction on the law of parole in the charge of the court to the jury given pursuant to the mandate in Article 37.07, § 4(a), V.A.C. C.P., is constitutional. The Dallas Court of Appeals sitting En Banc held the instruction is not violative of the separation of powers doctrine of Article II, § 1 in the Texas Bill of Rights or the Due Process Clause of the Fourteenth Amendment or the Due Course Clauses of Article I, §§ 13 and 19 in our Bill of Rights. Rose v. State, 724 S.W.2d 832 (Tex.App.—Dallas 1986). 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. I. Long before there was a Board of Pardons and Paroles the Constitution of the State of Texas vested the power of clemency solely in the Governor. See Article IV, § 11, Constitution of 1876, as originally adopted, quoted in Historical Note following; see also therein references to earlier constitutions containing similar provisions. While from time to time the Governor was aided by something called “Board of Pardon Advisers,” see Interpretive Commentary to § 11, and was taking recommendations as to parole from the Board of Prison Commissioners, exercise of that clemency power vested in the Governor was “subject to no limitations by the Legislature other than that mentioned in the constitutional provision with reference to the remission of fines and forfeitures and with reference to treason.” Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148 (1919) and Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96 (1922) (any part of parole law wherein clemency power of the chief executive under Article IV, § 11 is “in any wise abridged or infringed would be held.... unconstitutional”). It was then and still is a ground for new trial that the jury “received other testimony” during its deliberations, or engaged in “misconduct” such that defendant “has not received a fair an impartial trial.” Formerly Article 40.03(7) and (8), V.A.C.C.P.; see now Tex.R.App.Pro. Rule 30(b)(7) and (8). So it was that when jurors recounted instances in the county of trial that after they were convicted and sentenced “the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned,” defendant was entitled to a new trial. Weaver v. State, 85 Tex.Cr.R. 111, 210 S.W. 698 (1919). Reacting to a general sense developed during those times that “some governors granted pardons indiscriminately,” the Legislature proposed and in 1936 the voters adopted an amendment to Article IV, § 11 to remedy the situation. Interpretive Commentary following. It created a Board of Pardons and Paroles (Board) and, inter alia, conditioned exercise of executive clemency with respect to commutation of punishment and pardons “on the written signed recommendation and advice of the Board;” with respect to remission of fines and forfeiture, “under such rules as the Legislature may prescribe,” again with written recommendation and advice of the Board. Under this new regime in an unbroken line of cases the Court would continue to hold, generally speaking, that when a discussion of parole by jurors “had the effect of bringing about [an] enhanced punishment,” defendant was entitled to a new trial. E.g., Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168, 170-171 (1947); Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952). Thus a prosecutor must not invite a jury to consider the parole law in assessing punishment. Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975). While decisions collected by the Court in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), indicate it was not particularly consistent in delineating germane factors to be evaluated in analyzing the issues, it was satisfied that “the parole law is not for the jury’s consideration,” id., at 853. In Heredia v. State, supra, the Court found that “discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration,” id., at 853. The reason was founded in our Constitution, viz: “The decision to parole, if and when made, is beyond the province of the courts ... and therefore the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulations by the legislative branch. Article IV, Section 11, Texas Constitution.” Id., at 853, n. 4. To eliminate the possibility that a jury would become involved in a discussion of parole law, the Court made clear that the trial court should instruct the jury in its charge on punishment “that it should not discuss or consider the possible effects of the parole laws or system.” Moore v. State, 535 S.W.2d 357, 358 (Tex.Cr.App.1976). Elaborating on both Heredia and Moore in Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978), the Court further explained: “It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. * * * * Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch. Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of that power by the executive branch is as much an unconstitutional interference as is an attempted usurpation of that power. See Ex parte Giles [502 S.W.2d 774 (Tex.Cr.App.1974) ] and Smith v. Blackwell [500 S.W.2d 97 (Tex.Cr.App.1973) ], for unconstitutional grants of authority to usurp clemency powers.” II. Now we must first determine whether constitutional principles barring jurors from considering parole laws have survived the revision of Article IV, § 11, effective when the voters approved the proposition submitted by S.J.R. No. 13 in 1983. 4 Vernon’s Texas Session Law Service 1983, at A-158. As revised, § 11 reads in pertinent part: “Section 11. The Legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws. ♦ * * * }} A. In addressing the separation of powers issue under the Texas Constitution, the Dallas Court of Appeals gave scant attention to revised § 11. Rose v. State, supra, 835-837. It merely disagreed that § 11 supports appellant’s contention “that parole is a component of the clemency powers vested in the executive branch of government and, therefore, these [jury] instructions constitute an usurpation by the judiciary, acting through the jury, of that executive power,” because its own reading of the first paragraph “gives the legislature the power to enact parole laws” and “[t]hus the rules governing parole are within the control of the legislature.” Id., at 836. That reading begs the real question. The second sentence in the first paragraph of revised § 11 is derived from former § 11 similarly providing that the Legislature “shall have authority to enact parole laws,” and we find no indication that the revision is intended to provide a broader scope of legislative authority in regard to parole laws than already possessed. Therefore, contrary to the view of court of appeals, that the Legislature retains the authority granted in 1936 to enact parole laws is of little importance. What is em-cial is the role of the Board, and to that we now turn. B. Clemency power is inherent in sovereignty, and may be lodged in whole or in part wherever the people determine. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.1973); Smith v. Blackwell, 500 S.W.2d 97, 100 (Tex.Cr.App.1973); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933); Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29, 44 (1914); 27 Tex.Jur.3d 263-264, “Criminal Law" § 4381; 44 Tex.Jur.2d 5-6 “Pardon, Reprieve, and Commutation” § 2; Interpretive Commentary following Article IV, § 11. In the second paragraph of § 11, as revised, the Governor retains power to grant and to revoke a conditional pardon, as well as all other clemency powers save one formerly in the Governor. The effect of revised § 11 is to remove parole eo no-mine from the clemency power of the Governor and to vest that clemency power to grant and to revoke paroles in the Board. In the sense that the Governor, as chief executive, is no longer empowered to grant it, parole may not be construed to be any form of “executive clemency,” Article 42.-18, § 2a. But parole is an act of grace. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394, 397 (1957); United States v. Chagra, 669 F.2d 241, 264 (CA5 1982). So long as it exists and is utilized as a tool of punishment and rehabilitation, jurisdiction, power and authority over parole must be exercised by some officer or agency of government. See and compare Ex parte Giles, supra, at 780 and Smith v. Blackwell, supra, at 101. The people have decided in favor of the Board rather than the Governor, and the Legislature has effectuated that decision in Article 42.18, V.A.C. C.P. Thus, parole is an act of clemency within the “exclusive” jurisdiction, power and authority of the Board. Id., § 1. The caption of S.J.R. No. 13 characterizes the Board to be established as “a statutory agency,” meaning no more than it is a creature of statute. However, since in 1936 the Board was elevated to constitutional status in the Executive Department and the first sentence of the first paragraph in § 11 mandates the Legislature to establish a Board, we find that, whatever its characterization, the Board remains where it has always been — in the Executive Department. See Texas Liquor Control Board v. Continental Distilling Sales Co., 199 S.W.2d 1009, 1012-1013 (Tex.Civ.App.—Dallas 1947), writ refused n.r.e., 203 S.W.2d 288, 289, appeal dismissed, 332 U.S. 747, 68 S.Ct. 26, 92 L.Ed. 335 (1947). Moreover, the legislation implementing the constitutional foundation for the Board expressly provides that “it is subject to the Texas Sunset Act, but it is not abolished under that Act.” Article 42.12, § 12a, V.A.C. C.P., see now Article 42.18, id. See Texas Sunset Act, Government Code, § 325.014. Compare similar treatment of Secretary of State in Article 4330a, V.A.C.S. (1987 Pocket Part). Therefore, we conclude that since the Board of Pardons and Paroles is within and part of the Executive Department as contemplated by Article II, § 1, “the decision to grant parole, if and when made, is beyond the province of the [Judicial Department] ... and is exclusively a matter within the [Executive Department], under proper regulation by the [Legislative Department]. Article IV, Section 11.” Heredia v. State, and Sanders v. State, both supra. Accordingly, “any attempt by one department of government to interfere with the powers of another is null and void.” Ex parte Giles, supra, at 780; State ex rel. Smith v. Blackwell, supra, at 101. C. The remaining question is whether the legislative mandate in Article 37.07, § 4(a), supra, that the courts “shall charge the jury in writing” the content of instruction given by the trial court in this cause, offends the separation of powers doctrine prescribed in Article II, § 1. Finding the statute is an attempt by one department of government to direct another department to interfere with powers of yet a third department of government, we hold that Article 37.07, § 4(a) is unconstitutional. While looking at “available legislative history,” the Dallas Court of Appeals said Article 37.07, § 4(a) “must be construed according to its plain meaning.” Rose v. State, supra, at 836. We agree with the latter, and proceed to examine it and the instruction facially. Both the statute and the instruction begin with a direct albeit erroneous statement, viz: “Under the law applicable to this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time.” The remainder of the first paragraph in both statute and instruction informs the jury generally about factors relevant to awarding good time and warranting taking it away. The second paragraph in each adds that length of imprisonment might be reduced by an award of parole. The third paragraph dictated by the statute reveals to the jury as “the law applicable in this case,” the exact formula to determine when this appellant will become eligible for parole — “the actual time served equals one-third of the sentence imposed or 20 years, whichever is less, without consideration of any good conduct time he may earn” — and gives a simple example; it points out that eligibility is no guarantee of parole. The jury is next informed that one cannot accurately predict “how the parole law and good conduct time might be applied to this defendant,” because that depends on decisions made by “prison and parole authorities.” At this point, however, in the fifth paragraph of both 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 in making a decision as to the number of years it will assess as punishment. “The evil to be avoided is the consideration by the jury of parole in assessing punishment.” Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982). Rather than avoid that evil the instruction mandated by the statute directly instructs the jury that in assessing punishment it may consider aspects of parole law contained in the instruction. It is of no constitutional consequence that thereafter excluded from consideration are "the extent to which good conduct time may be awarded and forfeited by this particular defendant” and “the manner in which the parole law may be applied to this particular defendant” by the authorities. Jurors have already been instructed that they may consider the stated explanation of parole law and good conduct time, yet the Court has consistently held the parole law is not for the jury’s consideration. See ante, at 2-4. The legislative mandate in Article 37.07, § 4(a), supra, is an attempt by the Legislative Department to direct the Judicial Department to interfere with exercise of powers of the Board of Pardons in the Executive Department and, as such it offends the separation of powers doctrine in Article II, § 1. Accordingly we hold that Article 37.-07, § 4(a) and the instruction required by it are unconstitutional. III. Appellant also contends that the instruction mandated by Article 37.07, § 4(a), supra, is violative of his rights to due course of law guaranteed by Article I, §§ 13 and 19 and Article 1.04, Y.A.C.C.P. That is, he is being denied that fundamental fairness necessary to due administration of justice, Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158, 160 (1955), in that in operation and effect the statute, as well as the instruction, preclude a fair and impartial trial on the issue of punishment. Elsewhere, at time of trial in this cause, Article 37.07 contemplated that an assessment of punishment be based on evidence “as to the prior criminal record of the defendant, his general reputation and his character,” id. § 3(a); to that Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), added “[e]vidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” Id., at 519. Of course, the instruction given here is not evidence; in terms it purports to be “the law applicable to this case,” rather than to the facts of the case. Early on “due course of the law of the land” was held to mean “the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.” Huntsman v. State, 12 Tex.App. 619 (1882). See also Bumguardner v. State, 147 Tex.Cr.R. 188, 179 S.W.2d 768, 770 (Tex.Cr.App.1944). Put in more contemporaneous terms, an essential ingredient of a fair and impartial adversarial proceeding, including a hearing on punishment, is that the ultimate conclusion of the factfinder be a determination of issues tendered by pleadings giving adequate notice, raised by evidence properly admitted, upon an opportunity for defendant to confront adverse witnesses and be heard by an impartial factfinder under fair procedures provided by law, including some showing of the basis for that conclusion. Thompson v. State, 626 S.W.2d 750 (Tex.Cr.App.1981); Caddell v. State, 605 S.W.2d 275 (Tex.Cr.App.1980); Ex parte Guzman, 589 S.W.2d 461 (Tex.Cr.App.1979); Ex parte Quintanilla, 151 Tex.Cr.R. 328, 207 S.W.2d 377 (1947); 12 Tex.Jur.3d 735, “Constitutional Law,” § 157. Thus when a jury is factfinder its verdict will be reflected in the judgment of the trial court, and the judgment must be entered of record. Article 42.01, Y.A.C.C. P. A verdict on punishment, like a verdict on guilt, is general in the sense that it states an amount of punishment assessed pursuant to Article 37.07, §§ 1(a) and 3(b) and (c). It is now the rule that jurors may not testify to any matter or statement occurring during the course of deliberations or to the effect of anything upon their minds or emotions influencing them or concerning their mental processes. Tex.R.Cr. Evid. Rule 606(b). To gain any insight into the basis and rationale of a verdict one must resort to evidence admitted, the charge on punishment, argument of the parties and other relevant indicia of record, if any. Jurors are instructed they “may consider the existence of parole law and good conduct time,” and experience teaches the likelihood they will is great. A general adverse reaction to gubernatorial extravagance in exercising powers to pardon and commute is a documented historical fact, and motivated the people to impose restrictions on its use. See ante, at 531-32. More recently trial records and our own opinions reflect that often jurors cannot resist the temptation to discuss parole laws. Indeed, the Bill Analysis reports what is commonly known — jurors were considering operation of parole laws in revulsion against their understanding of how they are being administered. Rose v. State, supra, at 836. The issue of punishment should be decided on relevant evidence of record prescribed by Article 37.07, § 3(a) under such additional instructions as may be necessary pursuant to id., § 3(c). “It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof.” Sanders v. State, supra, at 351. So long as provided by law, motion in arrest of judgment, motion for new trial and pursuit of appeal are valuable means of remedying violations of greater rights vouchsafed by due course of law. However, an instruction mandated by Article 37.07, § 4(a), is virtually immune from challenge because the instruction purports to be one of law, evidence relevant to its declarations is not admissible, and counsel are prohibited from arguing the matter to the jury. Whether jurors actually did discuss and consider parole law and good conduct time, and to what extent and effect, can never be properly discovered and adequately determined. The risk that punishment will be based on extraneous considerations is intolerable in a society that constitutionally demands concepts of fundamental fairness be honored in its criminal justice system. McFarlane v. State, 158 Tex.Cr.R. 194, 254 S.W.2d 136 (1953); see State ex rel. Bryan v. McDonald, 662 S.W.2d 5, at 7-8 (Tex.Cr.App.1983); Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158 (1955) (On Motion for Rehearing, at 160); see also State v. Olsen, 360 S.W.2d 398, at 401 (Tex.1962), excerpting Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, at 1021 (1922). Without interweaving federal law, we observe that it does not appear to be inconsistent: e.g., Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); see also 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); cf. Andrade v. State, 700 S.W.2d 585 (Tex.Cr.App.1985) (Concurring Opinion, at 590-591). Therefore, we hold that Article 37.07, § 4(a), along with the instruction it mandates, violates Article I, §§ 13 and 19. CONCLUSION Having held the statute and the instruction it requires unconstitutional in two respects, now we should determine whether beyond a reasonable doubt the instruction made no contribution to punishment assessed by the jury. Tex.R.App.Pro. Rule 81(b)(2). However, a majority of the Court views that matter differently. Accordingly the judgment of the Dallas Court of Appeals is affirmed. DUNCAN, J., joins Part III. . ‘It is not within the power of the Legislature to enlarge or restrict the pardoning power vested in the executive nor to impose conditions upon which it may be exercised, nor requirements touching the conditions precedent or subsequent which are imposed by the executive upon the convict...." Id. 209 S.W., at 150. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.) . “The facts ... indicate that the verdict assessing the death penalty does not reflect the deliberate judgment of the members of the jury, upon the evidence legally before them, but that some of them were induced to agree to it because ... in such cases the Governor had, in the opinion of the jurors relating the extraneous facts, been overlenient in the exercise of the pardoning power.” Id. 210 S.W., at 700. . That the Court was later to reject the Heredia formulation for determining whether jurors' discussing parole laws constitutes reversible error, Sneed v. State, 670 S.W.2d 262, 266 (Tex.Cr.App.1984), does not undermine the constitutional propositions enunciated in Heredia and elsewhere. . The remaining paragraph is a restatement of clemency power vested in the Governor and the advisory power granted the Board by the second paragraph of former §11, except deleted is power to revoke "paroles.” Let us read precisely the proposition approved by the people November 8, 1983, viz; "The constitutional amendment to change the Board of Pardons and Paroles from a constitutional agency to a statutory agency and give the board the power to revoke paroles.” S.J.R. No. 13, 4 Vernon’s Texas Session Law Service 1983, at A-158-159. The constitutional command is that the Legislature shall convert the Board into a statutory agency which will continue to recommend and advise the Governor in all matters of executive clemency except paroles, leaving to the Board alone determination of paroles. The amendment proposed by S.J.R. No. 13 became effective upon approval by the voters November 8,1983. The amendment retained in the Board its constitutionally provided authority and duty to make written recommendation and advice to the Governor with respect to granting reprieves, commutations and pardons and remitting fines and forfeitures. The Legislature made no change in the character, duties and functions of the Board with respect to parole prescribed in former Article 42.12, V.A.C.C.P. In Acts 1985, 69th Leg, Ch. 427, § 2, implementing S.J.R. No. 13, codified as Article 42.18, V.A. C.C.P., the Legislature expressed its intent "to designate the Board of Pardons and Paroles as the agency of state government with exclusive authority to determine paroles,” Article 42.18, supra, § 1. It further provided, with an exception not here implicated (an amendment to § 4, Article 42.12, V.A.C.C.P.), that “this Act is intended as a recodification only, no substantive change in law is intended, and [the Code Construction Act] applies to this Act.” Acts 1985, 69th Leg, Ch. 427, p. 1555, § 4. . The instruction is set out verbatim in the opinion of the Dallas Court at page 835. That the Dallas Court may have in part rested its decision on statute and instruction as applied to appellant, see Rose v. State, supra, at 837, is a matter we need not review here. . A prisoner may not "earn time off the sentence imposed." One may earn good time to eligibility for parole and mandatory supervision, but release on either status is subject to continuing compliance with rules and conditions of release "until the end of the term to which he was sentenced." Article 42.18, § 17; see also Article 6181-1, § 4, V.A.C.S. In oral argument the State characterized that language as "inartful.” But if we are to presume that jurors follow instructions, as the Dallas Court insisted. Rose v. State, supra, at 836, then we must attribute to this jury an awareness at the outset that term of sentence imposed on appellant in accordance with number of years of punishment assessed by the jury in its verdict would be lessened by an award of good conduct time. Thus the jury begins its deliberations on punishment with an erroneous and misleading notion in mind. . To consider is synonymous with study, contemplate and weigh; their shared meaning element is “to apply one's mind to something in order to increase one’s knowledge or understanding of it or to reach a decision about it." Webster’s New Collegiate Dictionary (1979) 239. When functioning in a formal body, we "consider and deliberate with a view to action." Funk & Wagnalls Standard Handbook of Synonyms, Antonyms & Prepositions (Revised Edition 1947) 148-149. . Amended effective September 1, 1986, Article 37.07, § 3(a), now reads in pertinent part that "evidence may, as permitted by the Rules of Evidence, be offered [et cetera]." That introduction of rules of evidence into the punishment hearing does not affect our rationale or the result we reach here. . A harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), is inappropriate here. The trial court gave an instruction mandated by statute; thus it does not appear from the record that any requirement of Article 36.14 through Article 36.18 'has been disregarded,” as contemplated by Article 36.19, V.A.C.C.P. . Because the trial court gave the invalid instruction in accordance with requirements of a facially unconstitutional statute, the writer is of the view that appellant suffered sufficient harm from the denial of due course of law explicated in Part in of this opinion. We are satisfied that in telling the jury it could consider the parole law and good conduct time the infirm instruction fatally infected the entire punishment hearing. Compare Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978). The concurring opinions, however, do make a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), and say none is sufficient to find that appellant has not had a fair and impartial hearing on punishment. Judge McCormick and those who join him in dissent would not hold the statute and the instruction it mandates unconstitutional. The consequence is that while a majority finds error in giving the instruction, it also holds the error does not call for a reversal.
MILLER, Judge, concurring on appellant’s petition for discretionary review To appreciate the problem of the parole charge, we must start with a common premise. That premise is that it is improper for a jury to give a greater sentence than they believe is merited for the sole purpose of having the defendant serve all of the sentence they do believe is merited. That is, a jury believing that a sentence of ten years is the proper punishment in a given case, should not give a defendant twenty years so that he will not be paroled until he actually serves the ten. As far as I can tell, all members of the Court agree to this premise. Obviously this Court starts to part ways once we leave the above premise and venture into the parole charge mandated by Art. 37.07, § 4, V.A.C.C.P. Some members of this Court find no constitutional problem with the article or the giving of the charge. See Judge McCormick's dissent. Others find both a separation of powers and a due course of law infringement. A majority at least agrees that the article violates the separation of powers doctrine of the Texas Constitution. I agree that Article 37.07, § 4(a), supra, violates Art. II, Sec. 1 of the Texas Constitution (separation of powers). I write having the benefit of the comments in Judge McCormick’s dissenting opinion. For reasons that escape me, neither the majority opinion nor the dissent mentions what must be the most important separation of powers opinion in recent times, Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987, motion for rehearing overruled November 4, 1987). Much of what was written in Meshell, supra, answers the acerbic comments of the dissent on this ground. The very reasoning that led to a finding of a legislative encroachment into an area of power exclusively reserved for the prosecuting attorney in the judicial department, that of discretion in preparing for trial, bolsters the majority’s reasoned view that the legislature has here encroached, via a directive to the judiciary, upon an area of power exclusively reserved for the Board of Pardons in the executive department. My concern goes to the treatment of the harm resulting from the jury instruction mandated by this unconstitutional statute. In the two short years since the advent of the understanding of error in jury instructions elucidated in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (opinion on rehearing), over three hundred reported cases have used the two-tiered analysis in jury charge error. Once the giving of a portion of the trial court’s jury charge is determined to be error, we must apply an Almanza analysis. That analysis results in finding either that the giving of an unob-jected-to charge amounted to egregious error which deprived the defendant of a fair and impartial trial, or that the giving of an objected-to charge amounted to harm that injured the rights of the defendant. In this case there was no objection to the giving of the charge in question. In addressing such a situation, we stated in Almanza, supra: “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 ... which may illuminate the actual, not just theoretical, harm to the accused.” Almanza, supra, at 174. Here, a majority of the Court has decided that the giving of the charge is the error that resulted from the dictates of a statute violating the separation of powers doctrine. That the pronounced error here is in the charge to the jury is beyond refute. Thus I would proceed with the harm analysis described in Almanza, supra. The first post-Almanza case from this Court to find unobjected-to reversible error in a court’s charge on punishment was Ellis v. State, 723 S.W.2d 671 (Tex.Cr.App.1986). Upon viewing the error in light of the entire record, we analyzed the charge in view of the evidence admitted, the jury arguments, the length of the jury’s sentence, and concluded that the defendant was denied a fair trial. A similar approach may be taken in the instant case. According to the Court of Appeals’ opinion, the facts of the case are as follow: “... on the afternoon of October 17, 1984, appellant and two other men entered complainant’s textile company in Dallas, robbed him at gunpoint, and left him tied up on the floor. Appellant took complainant’s pistol and approximately $160 in cash. Shortly before noon, eight days later, Officer Reno was at an apartment complex in Ennis when he saw a goldish-yellow Pontiac Sunbird that the police were seeking. He observed appellant and his companion, George Fitch, Jr., get out of the car and walk toward the apartments. He approached the two men and asked them to show their identification. As Reno began his questioning, Officer Shoquist arrived and discovered that appellant had a concealed handgun later identified as the pistol stolen in the Dallas robbery. Reno then drew his revolver on Fitch, removed a pistol Fitch was carrying in the waistband of his trousers, and placed Fitch on the ground without handcuffs. Reno then turned to aid Shoquist who was struggling with appellant for the latter’s pistol. As appellant and the two officers struggled, Reno lost possession of Fitch’s pistol, and Fitch recovered it. Fitch shot and wounded Reno. During the ensuing confusion, appellant escaped in a squad car; he was caught after a high speed chase, which ended when appellant crashed into a concrete median marker.” Rose v. State, 724 S.W.2d 832, 833-4 (Tex.App.—Dallas 1987). During the penalty stage of trial, the State established that the 39-year-old appellant had been to penal institutions three times and had five prior felony convictions. During final argument, while both prosecutors mentioned that appellant was back in Dallas twelve years after receiving a twenty-five year sentence (as reflected by the admitted evidence of prior convictions), neither gave further attention to that fact nor mentioned parole at all in their arguments. Both asked for a life sentence because of the facts of the case and appellant’s five prior felony convictions. Based on this examination of the record, I am totally unable to say that the giving of this unobjected-to charge amounted to egregious error that deprived appellant of a fair and impartial trial. Thus reversible error is not presented. Moreover, even if this harm analysis did not reach the above result, the following charge, further mitigating harm, was given to the jury after the parole law charge in question: “You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.” No reversible error is presented. CAMPBELL, J. joins. . Referring to dissenter’s comments such as “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.” (Dissenting opinion p. 543) (Meshell, supra, being a hotly contested 5-4 decision); and “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." (Dissenting opinion, p. 544) (Meshell, supra, stating that by establishing the office of county attorney under Article V, the authors of the Texas Constitution placed those officers within the judicial branch of government).
ONION, Presiding Judge, concurring in part and dissenting in part on appellant’s petition for discretionary review. Appellant was convicted of aggravated robbery and his punishment was assessed by the jury at life imprisonment. Appellant complained on appeal, inter alia, that charging the jury on the law of parole pursuant to Article 37.07, § 4(a), V.A.C.C.P., violated the separation of powers doctrine and due process clauses of the federal and state constitutions. The Dallas Court of Appeals rejected such contentions and affirmed the conviction. Rose v. State, 724 S.W.2d 832 (Tex.App.-Dallas 1986). We granted the appellant’s petition for discretionary review to determine the correctness of the decision of the Court of Appeals. In view of appellant’s challenge to the constitutionality of Article 37.07, § 4(a), supra, the statute is vested with a presumption of validity and this Court is duty bound to construe such statute in such a way as to uphold its constitutionality if possible. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Cr.App.1979); Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978); V.T. C.A., Government Code, § 311.021. See also Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App.1980). Courts should not declare an act unconstitutional unless it is clearly made to appear in its enactment that the Legislature has exceeded its powers. Lyle v. State, 80 Tex.Cr.R. 606, 193 S.W. 680 (1917). And courts should not assume the Legislature would intend an unreasonable result if the statute is capable of a construction that would prevent such a result. Wade v. State, 572 S.W.2d 533, 535 (Tex.Cr.App.1978). Before a statute is set aside, its validity must clearly be unsupported by a reasonable intendment or allowable presumption. Ex parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978). With these principles as a background, I fully agree that Article 37.07, § 4(a), supra, is unconstitutional on the bases set forth in the majority opinion. Here the trial judge following the mandatory language of the statute, now declared unconstitutional, gave the jury instruction now in question. The error was error in the court’s charge although there was no objection to the court’s charge on this basis. The error then must be analyzed in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), where it was stated at p. 171: “After researching Texas statutory and decisional law from 1857 forward, we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. 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 defendant,’ which means no more than that 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 a 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.” (Emphasis supplied.) Since there was no objection to the charge, reversal is proper only if the fundamental error is so egregious and creates such harm that the appellant “has not had a fair and impartial trial.” In applying the Almanza analysis each case must stand on its own merits. The error is in the court’s charge at the penalty stage of the trial only. The sufficiency of the evidence to sustain the aggravated robbery conviction is not disputed. Appellant and two companions entered the textile company of the victim, robbed him at gunpoint and left him tied up on the floor after threatening to kill him. Approximately $160 in cash and the victim’s pistol were taken. Eight days later Lt. Dennis Reno of the Ennis Police observed a goldish yellow Pontiac Sunbird the police were seeking at the Erwin Villa apartment complex. As appellant and his companion, Fitch, got out of said automobile, Officer Reno approached and asked for identification. While Reno was questioning the men, Officer Bob Shoquist arrived and discovered that appellant had a concealed handgun on his person (later identified as the pistol taken in the robbery). Reno then drew his service revolver on Fitch and removed a pistol Fitch was carrying and placed Fitch on the ground without handcuffs. At this time Reno responded to Shoquist’s request for help as Shoquist was struggling with appellant over the pistol. Both officers struggled with the appellant and in the struggle Reno lost possesion of the pistol he had taken from Fitch. The appellant yelled, “Shoot him, shoot him,” and Fitch shot Reno in the neck. During the confusion that followed, appellant escaped in a police squad car and was apprehended only after a high speed chase which terminated when the appellant crashed the squad car into a concrete median marker. At the penalty stage of the trial the State waived the enhancement paragraphs of the indictment alleging a prior robbery conviction and a prior burglary conviction for the purpose of enhancement of punishment. See V.T.C.A., Penal Code, § 12.42. However, the State introduced under Article 37.07, V.A.C.C.P., as part of appellant’s “prior criminal record” five prior felony convictions. This evidence reflected that 39-year-old appellant had been to penal institutions on three occasions. The record reflects a federal conviction for “breaking a seal fixed to interstate shipping in violation of 18 U.S.C., Sec. 2117,” a forgery conviction, a burglary conviction and two robbery convictions. These convictions were undisputed. Examining the charge at the penalty stage of the trial, we find that subsequent to the giving of the parole law charge in question the court, near the conclusion of the charge, instructed the jury: “You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.” In determination of the question posed the charge must be read as a whole. Examining the jury argument at the penalty stage of the trial, I find no mention of parole or the parole law charge. The prosecutor did indeed ask for life imprisonment, but he carefully based that upon the facts of the offense and appellant’s arrest and the appellant’s five prior felony convictions. Further, in Almanza, supra, at p. 174, the majority wrote: “We hold that finding error in the court’s charge to the jury beings — not ends — the inquiry; the next step is to make an evidentiary review along the lines of that described above in Davis, supra [28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890); writ of error dism’d 139 U.S. 651, 11 S.Ct. 675, 35 L.Ed. 300 (1891) ], 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. (Citations omitted)” Emphasis supplied. See also Lawrence v. State, 700 S.W.2d 208, 212 (Tex.Cr.App.1985) (“[b]y failing to object in the instant case, the appellant is charged with showing actual egregious harm under Almanza.”) In applying the Almanza analysis to this unobjected to portion of the charge at the penalty stage of the trial, although the charge be error, I cannot agree that the error is so egregious and created such harm that the appellant was “deprived of a fair and impartial trial.” See Article 36.19, V.A.C.C.P. While I agree the statute is unconstitutional, I do not agree that the judgment of conviction and the punishment assessed need to be reversed.
TEAGUE, Judge, concurring and dissenting. I only join Part III of the majority opinion that is authored for the Court by Judge Clinton that declares Art. 37.07, § 4(a), V.A.C.C.P., the statutory parole law instruction statute, unconstitutional because it violates the due course of law provisions of the Texas Constitution. Also see the concurring opinion that I filed in Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985), in which I pointed out why such an instruction would probably not run afoul of the due process clause of the Federal Constitution’s Fourteenth Amendment, but would perhaps run afoul of applicable Texas Constitutional provisions. My main disagreement with the statute is as the majority opinion states, namely: “The risk that punishment will be based on [inadmissible] extraneous considerations is intolerable in a society that constitutionally demands concepts of fundamental fairness be honored in its criminal justice system.” (Citations omitted.) (Page 537.) Also see the concurring opinion that I filed in Andrade, supra. However, given the fact that appellant did not complain in the trial court about the instruction being given to the jury, and the facts that were presented that might have enabled the jury to assess the punishment it did, I am unable to agree with Judge Clinton’s majority opinion’s conclusion that the error in instructing the jury was “calculated to deny [the appellant] a fair and impartial trial on the issue of punishment.” (Page 537. Footnote omitted.). The record clearly reflects that when the trial judge made it known to the world, and the appellant and his attorney, of course, that he was going to give the jury the statutory parole law instruction that is declared by a majority of this Court today in this case to be unconstitutional, neither appellant nor his attorney complained by timely and properly objecting to the trial judge’s act, nor is there any evidence in the record that might reflect or indicate that appellant did not want the jury so instructed. By their silence on the subject, I must assume that they were satisfied with the trial judge giving the instruction on the statutory law parole law instruction; otherwise, it stands to reason that they would have timely and properly complained. When the Legislature of this State enacts a statute whose validity is highly questionable, and is facially unfavorable to the defendant, such as the parole law instruction statute that is implicated here, or, for that matter, when this Court hands down an opinion that announces a highly questionable principle of law, notwithstanding that at the moment in time when the statute or decision is invoked and applied in a criminal case it is then “good” law, I find that it is still incumbent upon the defendant or his attorney to timely and properly complain in the trial court if the defendant desires to later complain on appeal about the statute, or the principle of law announced by this Court, in the event there is an appeal. If neither the defendant nor his attorney complains in the trial court, I find that the defendant is then relegated to asserting and proving, if he can, that the above caused his trial to result in a miscarriage of justice. It should now be unquestioned that had all attorneys of this State in the past not timely and properly complained in the trial courts of this State about questionable statutes enacted by our Legislature, or did not complain about some of this Court’s questionable decisions, thus laying the predicate to later complain about the matter before the Supreme Court of the United States or in federal court, our State’s criminal law would probably not have progressed very far from where it began in 1836. If you do not believe me, go and read the decisions by the Supreme Court of the United States that directly involve criminal cases from Texas, which that Court reversed, holding that what this Court said was the federal constitutional law of the land was really not that law. Those decisions, standing alone, actually make a compendium on federal constitutional law. When a statute is enacted by the Legislature of this State, that is facially questionable, as here, I find that it is not only within the province of the parties to timely and properly question in the trial court the wisdom of what the Legislature has enacted, they actually have a legal duty to question that statute’s validity in the trial court. When a defendant appeals his conviction, and he did not complain in the trial court about what he complains on appeal, appellate courts usually hold that he waived that complaint, and will not ordinarily review it, or, if the court reviews the contention, what is stated in the opinion regarding the complaint actually amounts to nothing less than dicta or obiter dicta; lip service, if you please. In the instance where the defendant does not complain in the trial court about the statutory mandated parole law instruction to the jury, as occurred here, before reversible error is shown to exist, it must be established that the instruction affected the fairness, integrity, or public reputation of the defendant’s trial that it caused the trial to be labeled “a miscarriage of justice.” In Federal courts, this is often referred to as “plain error”. See Hunter, Federal Trial Handbook 2d (1984 edition). In Texas, before Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), was decided by a majority of this Court, this was usually referred to in common parlance as “fundamental error”, “fundamental constitutional error” or “error of constitutional dimension”. I pause to point out that nowhere in Almanza, supra, is the subject of a statutorily created jury instruction, which statute is later declared to be unconstitutional by this Court, discussed, either expressly or by implication, and, because we are dealing here with a statutorily enacted jury instruction, and not a non-statutorily created jury instruction, which is now declared to be unconstitutional by this Court, Almanza, supra, is inapplicable to this case. This is what causes the concurring and dissenting opinions that are filed in this cause to be flawed. Given the facts of this case, I do not believe that any rational person, much less a judge on this Court, can unequivocally state beyond a reasonable doubt that the statutorily created parole law jury instruction that was given in this cause so infected the punishment phase of appellant’s trial that it caused a miscarriage of justice to occur when the jury assessed appellant’s punishment at life imprisonment. In this cause, appellant was on trial for committing the offense of aggravated robbery, a first degree felony, which carried “hard time” punishment anywhere from 5 years to 99 years' confinement in the Department of Corrections, or life imprisonment in the Department of Corrections. In this instance, the jury, in assessing appellant’s punishment was not only entitled to consider the facts of the case, but was also entitled to consider the following independent criminal offenses that appellant committed: 2 theft offenses, 1 unlawfully carrying a deadly weapon offense, either 2 aggravated assault on a police officer offenses or 1 attempted capital murder of a police officer offense, and 1 felony theft of a police car. The State also established at the punishment stage of the trial that appellant had been to penal institutions three times and had five prior felony convictions which involved the State offenses of forgery, burglary, two robberies, and the federal offense of breaking a seal fixed to interstate shipping. Given these facts, and notwithstanding that punishment was limited to that provided for a first degree felony, I am unable to find that the parole law instruction so infected the punishment phase of appellant’s trial that the assessment of life imprisonment by the jury was a miscarriage of justice. Where the defendant is shown to have timely and properly complained in the trial court about the trial judge giving the jury the statutory parole law instruction, I would find that the trial judge committed trial error in giving the instruction, although at the time of the defendant’s trial the giving of the parole law instruction was not error. I would then invoke and apply the principle of law provided in Rule 81(b)(2), Tex.Rules of Appellate Procedure, to that cause. That rule provides that if this Court finds that error occurred in the trial court, the trial court’s judgment shall be reversed, “unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment”. I would then remand the cause to the particular court of appeals from whence the case came, for that court to abate the appeal to the trial court in order for the trial judge to conduct “a harmless error hearing” so that the State, if it desires to do so, might be given the opportunity to establish on the record, with admissible relevant evidence, that none of the jurors considered the parole law instruction in assessing the punishment. Of course, because the question can only be answered by testimony from all of the jurors, it would be necessary for the State to have all of the jurors testify at the hearing, or account for their absence. At first blush, my suggestion might appear to be contrary to the provisions of Rule 606(b), Texas Rules of Criminal Evidence. However, it is not. That rule, contrary to its federal counterpart, is facially internally self-contradictory in that the second part of the rule washes out the first part of the rule. However, because the rule only applies on its face to “inquiries] into the validity of a verdict or indictment”, it should not control a “harmless error” type hearing, the result of which could not conceivably affect the validity of the jury’s verdict, i.e., in that instance, it is not the jury’s verdict that is being attacked, it is determining what effect the erroneous parole law instruction might have had upon the jurors when they decided the defendant’s punishment. The only significant question that the jurors would be asked at the “harmless error” hearing is whether the parole law instruction had any effect on their decision to assess the punishment that was assessed. In a sense, the parole law instruction amounts to communicating to the jury external prejudicial information, or it amounts to “outside influence”. Hon. Linda Addison, an attorney of this State, who is a frequent contributor of legal articles to the Texas Bar Journal, recently and correctly pointed out in her article entitled “Conduct Unbecoming a Jury: Rule 606(b)”, September, 1987 Texas Bar Journal, that the rule permits jurors to testify if “it can be shown that an ‘outside influence’ was improperly brought to bear upon any juror.” (872). If necessary, this Court should interpret the rule to permit interrogation of jurors where improper communication with the jury has occurred. If the internally self-contradictory Rule 606(b) can be interpreted to mean that no matter what the external prejudicial communication with the jury might have been, jurors are totally and absolutely immune from being called to testify, then, of course, it is obviously time for this Court to rewrite the rule. Once the word is out that jurors are totally immune from being called to testify, I fear that serious jury misconduct will commence to take place, to the detriment of the State as well as the accused. Understandably, if none of the jurors in a criminal case can be questioned, then the effect, if any, the parole law instruction might have had on the jury can never be determined. The result of such a holding would mean that every single criminal conviction that has occurred in this State, where the parole law instruction was given over objection, will have to be reversed or set aside by this or some other appellate court. As a member of this Court, as well as a private citizen of this State, I, for one, am not ready to vote to give the internally self-contradictory Rule 606(b) that interpretation. Therefore, I only join part III of of the opinion that Judge Clinton authors for a majority of this Court, in which the statutory parole law instruction statute is declared unconstitutional. I respectfully dissent to the holding that the original error that was committed by the Legislature, which was carried into execution by the trial judge, was, standing alone, “calculated to deny [the appellant] a fair and impartial trial on the issue of punishment.” I would hold, instead, that given the circumstances and facts of this case, the error was not such that it caused a miscarriage of justice, and would affirm the judgment of the court of appeals, which affirmed the trial court’s judgment of conviction. . Given what is in the majority opinion for the Court, I am able to fully comprehend what the first part of the last sentence in the penultimate paragraph states, “Therefore, we hold that Article 37.07, Section 4(a), along with the instruction it mandates, violates Article I, Section 19." However, given what is not stated in the opinion, I am at a total loss, as I am sure appellate judges, trial judges, prosecutors, defense attorneys, and defendants will be, what the last part of the sentence, which states "and is calculated to deny right of an accused to a fair and impartial trial on the issue of punishment”, (footnote omitted), means or is supposed to mean. A majority of this Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), approved the following statement, to-wit: "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 a 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’”. (171). Well, what could be more "egregious harm” than error in a charge that is “calculated to deny right of an accused to a fair and impartial trial on the issues of punishment.” Although a majority of the Dallas Court of Appeals found Article 37.07, Section 4(a), V.A.C.C.P., constitutional, which holding this Court disagrees with, it also found, for reasons stated, that the statutory instruction was not so egregious as to deny appellant a fair and impartial trial by jury on the issue of punishment. Is the majority opinion for this Court saying that, in my words, although the statute is unconstitutional, and the statutory instruction was so egregious that it was calculated to deny appellant a fair and impartial trial on the issue of punishment, notwithstanding this, it did not deny him a fair and impartial trial on the issue of punishment? Isn’t this slightly contradictory? Given the fact that under Almanza, supra, the error in giving the charge was egregious, it would appear that the error was automatic reversible error. Plain error, if you please. I dissent because at a minimum, given what the majority opinion holds, the cause should be remanded to the court of appeals for it to reconsider the matter in light of this court’s declaration that the statute is unconstitutional. When the cause was originally before the court of appeals, that court viewed the statute in light of the presumption that the statute was constitutional. This Court’s declaration, of course, has changed that perception, and the matter should now be viewed by the court of appeals in line with this Court’s holding that the statute is unconstitutional. However, as I have previously pointed out, in light of the circumstances and facts of this cause, the error did not cause the punishment that was assessed to be labeled "a miscarriage of justice." Is a majority of this Court implicitly adopting the reasons that the majority of the Dallas Court of Appeals gave as to why the statutory charge error did not deny and deprive appellant of a fair trial on the issue of what punishment should have been assessed by the jury? As to the remarks by the individual justices on the court of appeals and this Court, which discuss why the unobjected to or not complained about statutory charge error was not reversible error, although perhaps hopefully persuasive, these are not the words of this Court or the Dallas Court of Appeals. They are only the words of the individual members of the respective courts. I honestly believe that the members of t