# Smith v. State

> Court of Criminal Appeals of Texas · March 8, 1995 · 898 S.W.2d 838

URL: https://www.frixlaw.com/law-library/cases/2432542

## Case

- **Full name:** Robert SMITH, A.K.A., Robert Lee Johnson, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 8, 1995
- **Citations:** 898 S.W.2d 838; 1995 Tex. Crim. App. LEXIS 26; 1995 WL 92795
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Meyers, Baird, Clinton, Maloney, Overstreet
- **Cited by:** 229 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, 542 U.S. 274 (2004).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2432542

## How later opinions describe it (automated extraction)

- holding that reference to plea negotiations was subject to exclusion under Rule 403 since any minimal relevance it may have had in that case was substantially outweighed by the danger of both unfair prejudice and of misleading the jury
- noting that State has right during closing argument to “attack the veracity of a defendant who takes the stand”
- holding that evidence of a plea offer by the State may be relevant, but is substantially outweighed by the danger of both unfair prejudice and of misleading the jury
- holding that no equal protection violation occurred because appellant failed to establish that classification discriminated against similarly-situated individuals
- holding that different sentencing scheme for capital and non-capital defendants did not violate equal protection; all capital defendants were treated similarly

## Opinion text

898 S.W.2d 838 (1995)
Robert SMITH, a.k.a., Robert Lee Johnson, Appellant,
v.
The STATE of Texas, Appellee.
No. 71433.
Court of Criminal Appeals of Texas, En Banc.
March 8, 1995.
*840 Stanley G. Schneider and Tom Moran, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Karen A. Clark and Mark Vinson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.
Before the court en banc.
OPINION
MEYERS, Judge.
Appellant was found guilty for the capital murder of James Wilcox in the course of robbery. Tex.Penal Code Ann. § 19.03(a)(2). After the jury affirmatively answered the submitted statutory special issues, the trial court sentenced appellant to death. Tex. Code Crim.Proc.Ann. art. 37.071(b). Appeal to this Court is automatic. Tex.Code Crim. Proc.Ann. art. 37.071(h). We will affirm.
I. EVIDENTIARY ISSUES
Because several of appellant's complaints on appeal concern the facts of the underlying crime, a recitation of the facts is necessary. Appellant and his accomplice entered the Fayco Menswear clothing store in Houston fifteen minutes before closing. The two new "customers" wandered throughout the store, appellant finally settling upon several high priced goods. Because of his behavior and his failure to try on any of his purchases, the saleslady, Ms. Kim, became suspicious. She signaled a friend at another store that she was in trouble. Ms. Kim also picked up the phone and called the operator for help. Before Ms. Kim could speak to the operator, appellant pointed a gun at her head and told her to hang up the phone and to lay on the ground. She complied. Ms. Kim's friend arrived and was maced by appellant's accomplice when he entered.
Appellant, unable to open the cash register, ordered Ms. Kim to stand and retrieve money from the register. When she stood, Ms. Kim moved appellant's car keys which he had placed with his purchases on the counter. Appellant, unaware his keys had been moved, fled the store with money and merchandise along with his accomplice. When they had *841 left, Ms. Kim called the police and also informed the local security guards of the robbery.
Appellant fled in the direction of a KMart two buildings away from Fayco Menswear. As appellant approached his car, Mr. Griffith, a KMart security supervisor, was approaching his auto. Appellant asked Mr. Griffith to call an ambulance because a building was on fire, pointing in the general direction of Fayco Menswear. Mr. Griffith saw no fire and thought it strange an ambulance should be called, nevertheless, he began to get into his car. A few moments later, Mr. Griffith heard appellant say, "I can't find the fucking keys. I can't find the fucking keys now." Appellant and his accomplice then exited their car and fled.
Soon after they had fled, Mr. Griffith was informed of the robbery by one of the local security guards. Mr. Griffith and the security guard got in Mr. Griffith's car and pursued the two robbers. Mr. Griffith and the guard saw appellant and his accomplice jump a fence into a nearby abandoned trailer park. They drove to an entrance where a gate had been knocked down. Approximately 12 to 15 seconds elapsed between the time the robbers jumped the fence to the time the pursuers got to the entrance. As they were exiting the car, Mr. Griffith heard a gunshot. Each man ran behind a tree for cover. From behind his tree, Mr. Griffith could hear two frantic voices from inside the park. However, he could only see shadows.
A truck engine started, its lights went on, and the truck began heading in Mr. Griffith's direction. As a warning, Mr. Griffith fired four shots into the air. The truck stopped, and its occupants exited and fled on foot. The police arrived and requested Mr. Griffith and the security guard to return to Kmart to watch the abandoned vehicle. The police then continued the pursuit.
The police brought in a K-9 unit and began tracking the robbers using a Belgian Malinois, a dog similar in appearance to a compact German Shepard. The dog and his handler tracked appellant into a wooded area where the dog was released. The dog caught up with appellant, and his handler arrested appellant as the dog was attempting to pull appellant from some brush.
Another officer approached the abandoned truck. In close proximity to the truck, a tent had partially collapsed. On part of the tent the officer discovered a dead male, subsequently identified as James Wilcox. Appellant later confessed to the murder of Wilcox. [1]
In appellant's first three points of error, he complains the trial court erred in admitting the evidence of appellant's robbery of the men's clothing store during the guilt phase of the trial and in failing to properly limit the jury's consideration of such evidence. [2] Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." *842 Tex.R.Crim.Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1991) (on rehearing). Rule 404(b), however, lists a number of exceptions to this rule. For instance, the evidence may be admissible to prove motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident. Montgomery, 810 S.W.2d at 387 ; Tex.R.Crim.Evid. 404(b). This list is neither exclusive nor exhaustive. McCormick, Evidence § 190 (4th ed. 1992); Goode, Wellborn & Sharlot, 1 Texas Practice § 404.6.3, at 173 (2nd ed. 1993).
Appellant filed a motion to suppress the evidence of his extraneous offenses with the trial court. The court denied the motion noting that the "State has [the] burden to prove intent and other elements." During the charge conference, the trial court again stated that the evidence was admissible to show appellant's motive and intent. Appellant contends on appeal that the evidence was admitted as background evidence only, and is not admissible unless it is "necessary" to the jury's understanding of the offense at trial. See Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App.1993). Appellant argues further that the only issue at trial was whether appellant intentionally killed Wilcox and the evidence at the first aggravated robbery does not have any bearing on that issue.
We disagree. The evidence of appellant's aggravated robbery establishes his motive and helps prove his intent to kill Wilcox and steal Wilcox's truck. Appellant's flight from the first offense, the fact that his car keys had been left, and his need of an automobile to effectuate his escape from the robbery of the men's clothing store crime help explain appellant's intentions when he came upon the victim. It is arguable appellant knew that his robbery had been reported and that the police were en route to Fayco Menswear. Because the evidence of the aggravated robbery was relevant to illustrate appellant's motive and intent, the trial court did not err in admitting that evidence. Tex. R.Crim.Evid. 404(b); see Peterson v. State, 836 S.W.2d 760, 762-763 (Tex.App.—El Paso 1992, pet. ref'd) (Evidence of appellant's possession of marijuana, pistol and ammunition indicated defendant's motive and intent for his aggravated assault on peace officer). [3]
In appellant's second and third point of error, he complains the trial court erred in overruling his objection to the court's charge and in failing to limit the jury's consideration of the initial robbery to a proper purpose. During the charge conference, appellant objected to the inclusion of the court's instruction limiting the jury's consideration of the extraneous offense. Appellant objected to any limiting instruction being given at trial. In fact, the only reason the limiting instruction remained after appellant requested it be removed was because the State requested it remain, doing so "to protect the defendant's rights." See Montgomery, 810 S.W.2d at 388 . Because appellant did not object or request a different more limited instruction, he cannot now complain of that failure. See Tex.Code Crim.Proc.Ann. art. 36.14; Tex. R.App.Proc. 52(a). Appellant's first three points of error are overruled.
In appellant's sixteenth point of error, he argues that the State's offer of a life imprisonment in return for a guilty plea should be admissible as mitigating evidence during the punishment phase of the trial. Specifically he avers that "his refusal to accept the proffered life sentence was due to the fact that he did not kill the complainant deliberately or intentionally and was therefore mitigating." The State argues evidence of plea offers is inadmissible under Rule 408 of the Texas Rules of Criminal Evidence. See Moss v. State, 860 S.W.2d 194, 196-197 (Tex.App.—Texarkana 1993, no pet.). [4]
Rule 408 provides:
*843 Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest or a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
(Emphasis added.) The U.S. Second Circuit Court of Appeals noted that reference in the Federal Rules to "a claim which was disputed as to either validity or amount" does not generally refer to criminal plea bargains. United States v. Baker, 926 F.2d 179, 180 (2nd Cir.1991). [5] Baker further held that Federal Rule 408 applies to civil matters only. Id.; compare United States v. Hays, 872 F.2d 582, 588-589 (5th Cir.1989) (Evidence of a civil settlement agreement is not admissible in a criminal proceeding), and United States v. Prewitt, 34 F.3d 436, 439 (7th Cir.1994) (clear reading of rule 408 is that it applies to "civil proceedings" only). This interpretation of Rule 408 is buttressed by the presence of Rule 410 which prohibits the State from introducing evidence of a plea or statements made during plea negotiations against a defendant. Tex.R.Crim.Evid. 410.
The State cites to Moss v. State, supra , to support the proposition that because Rule 408 is in the Criminal Rules of Evidence, then the Rule applies to criminal settlement agreements as well. We agree that Rule 408 is applicable in criminal cases because of its presence in the Criminal Rules of Evidence, but we do not agree that it applies to criminal plea negotiations. See Hays, supra ; United States v. Gonzalez, 748 F.2d 74, 78 (2nd Cir.1984) ("In this criminal prosecution, Gonzalez's statements were admitted to establish that Gonzalez committed a crime, and their relevance to that issue does not depend on an inference that [the Bank] had a valid claim against Gonzalez.") The rule is limited on its face to evidence which is presented to prove "the validity for or invalidity of [a] claim or its amount." Nothing in the State's offer of capital life during its plea negotiations concerns the validity or invalidity of a claim or its amount. While Rule 408 is applicable in criminal proceedings, it does not apply to a State's plea offer.
Nevertheless, if the trial court's decision was correct on any theory of law applicable to the case, it will be sustained. McFarland v. State, 845 S.W.2d 824 , 846 n. 15 (Tex.Crim. App.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2937 , 124 L.Ed.2d 686 (1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Calloway v. State, 743 S.W.2d 645, 652 (Tex.Crim.App.1988). The State's offer of life to a capital defendant was excludable on other grounds. Evidence that the State offered a capital defendant a plea of life may be minimally relevant to a State District Attorney's office belief that the defendant was not a future danger. Tex.R.Crim.Evid. 401 and 402; Montgomery, 810 S.W.2d at 386 . However, such evidence is substantially outweighed by the danger of both unfair prejudice and of misleading the jury. Tex. R.Crim.Evid. 403. There are numerous reasons the State may offer a plea of capital life to a capital defendant, including the availability of county resources, the quality of evidence *844 or witnesses, internal policies within a district attorney's office, or a desire to prevent a victim's family from suffering the trauma of a capital trial. These various reasons could independently or in combination encourage the district attorney to make the offer of capital life. The limited probative value of the plea offer concerning a district attorney's views of a defendant's future dangerousness is substantially outweighed by the danger of "unfair prejudice, confusion of issues, or misleading the jury." Tex.R.Crim. Evid. 403. [6] Therefore, the trial court did not err in refusing appellant's request to introduce evidence of the State's plea offer. Appellant's sixteenth point of error is overruled.
In appellant's seventeenth point of error, he complains the trial court erred in admitting appellant's fingerprints into evidence as those prints were forcibly taken in violation of appellant's right against self-incrimination under Article I, section 10 of the Texas Constitution. Appellant's objection on appeal does not comport with his objection at trial which was based solely upon Fifth Amendment grounds. Tex.R.App.Proc. 52(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). Appellant's seventeenth point of error is overruled.
II. CLOSING ARGUMENTS
In appellant's fourth and fifth points of error, he contends the prosecutor committed fundamental error and intentionally engaged in misconduct during his closing argument. The alleged improper argument occurred as follows:
[STATE'S ARGUMENT:] Mr. Griffith tells you that he jumped the fence along with this guy named Larry. And you know what's so significant about Mr. Griffith's testimony is that he says that [appellant] and somebody else jumped the fence, at about 12 to fifteen seconds later he hears a single gunshot.
[Appellant] wants you to believe that he negotiated with Mr. Wilcox. That all this as he said: Is he okay? Is he okay?
How much time? 12 to 15 seconds. What's going on through his mind at the time? And you know, when he left that Fayco Men's Department Store he forgot his keys. But [you] know what he didn't forget was his gun, that he didn't forget. He forgot his keys but not the gun. This loaded gun with a .32 [caliber] jacketed bullet that he's not going to forget that. Now, he's trying to get away. He knows the security guards are coming and he knows the police are coming. And at that point he's in the field. There aren't any witnesses except for Mr. Wilcox. No witnesses. And he needs to get away because, you know, there's people that are after him at the men's department store where nobody knew what was going on. Now, he knows people are after him and heeds [sic] the truck.
Now, the portions that are redacted under the law, as the law provides me that I have to do so, what do I leave out? He says the man was on top of a tent. How convenient. Man is found. Mr. Wilcox is found on top of a tent. That's where he got shot. He fell on it. I excised and I asked him politely, I excise politely now in order for you to be able to find the defendant not guilty of capital murder you got to be able to believe him. You got to be able to say, [appellant,] you're telling the truth. You've got to be able to believe him.
Now, do you think that in the course of trying to get away and he's got a loaded gun, he asks Mr. Wilcox can you please give me your keys to your truck? You really think that happened?
*845 So in order for you to believe everything he says, you've got to be able to believe him.
[APPELLANT'S COUNSEL:] Your Honor, I would object for the record in that that is a transfer of burden of proof in this case. That is where a person—
[THE STATE:] Your Honor, can I have an objection as opposed to a narrative objection?
THE COURT: Objection?
[APPELLANT'S COUNSEL:] Objection, it's transfer of burden of proof contrary to the law as stated in the Court's Charge.
THE COURT: To that extent, to the extent that might call for, the objection is sustained. The jury will be instructed to rely upon the Charge that puts the full burden of proof upon the State.
Proceed with the argument.
[THE STATE:] I accept the burden, but you've got to be able to believe him. (Emphasis added).
Appellant contends that the prosecutor's argument amounted to fundamental error, and therefore no objection is necessary to preserve error. [7] To be considered appropriate, jury argument must be limited to a summation of the evidence, reasonable deductions from the evidence, an answer to an argument by opposing counsel, or a plea for law enforcement. Hughes v. State, 878 S.W.2d 142, 157-158 (Tex.Crim.App.1992) (opinion on rehearing); Moody v. State, 827 S.W.2d 875, 894 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 113 S.Ct. 119 , 121 L.Ed.2d 75 (1992). The State contends that their argument in this instance was an answer to an argument by opposing counsel. During closing argument immediately before the State's alleged improper argument, appellant made the following argument:
Officer Williams said that this was the location where the (sic) found a truck, almost twice the distance from where Mr. Griffith said that he heard the voices, twice the distance on this photograph by an officer who stakes out the scene.
Now, I don't know how a person who describes shadows acting frantically seated here, shadows basically dancing in the cab of a vehicle in this area, how a person determines when the headlights of that vehicle are on and supposedly coming towards him in this direction, how a person can determine not only how many people are in the cab of that truck, but the races and the number of voices heard, unless he finds out obviously afterwards and he knew that there were two people chased into the woods trying to get both suspects. I don't know if it makes sense. I don't think it bears up to the logic. But it's your decision. If Griffith is to believed (sic) and if you believe him, his testimony beyond a reasonable doubt, then [appellant] is wrong, [appellant's] testimony. He said that hey, Larry was inside the vehicle.
The arguments by counsel indicate that appellant did put the credibility of appellant's confession and Griffith's testimony into issue, forcing the jury to decide whom they believed. The State properly notes that their argument is not a shift in the burden of proof but rather a challenge to the credibility of appellant's exculpatory statements in his confession. Because appellant's counsel argued to the jury that they had to decide whom to believe, the State was also free to answer this argument and contend that appellant was not telling the truth.
In the fifth point of error, appellant contends the State committed prosecutorial misconduct by continuing to argue after the Court sustained appellant's objection that "I accept the burden, but you've got to be able to believe him." Appellant's argument is based on a belief that the trial court's ruling in this cause was to prevent the State from attacking appellant's credibility. However, *846 such was not the court's ruling. The trial court's ruling was limited on its face to an improper shift in the burden during arguments, and not the State's attack on appellant's credibility. [8] Because the prosecutor's additional arguments were in response to the arguments of defense counsel, the trial court's limited ruling was correct. Appellant's fourth and fifth points of error are overruled.
III. PAROLE LAW
In appellant's sixth through twelfth points of error, he complains of his inability to inform the jury, through testimony or an instruction, of the application of parole laws in Texas. In appellant's sixth point of error, he complains the trial court erred in preventing him from introducing the testimony of Dr. Fason that appellant would serve 15 years of his sentence before becoming eligible for parole. In his seventh through twelfth points of error, appellant argues that article 37.071 of the Texas Code of Criminal Procedure is violative of the Equal Protection Clause of the Fourteenth Amendment; the Equal Protection Clause of article I, sections 3 and 3a of the Texas Constitution; the Due Process Clause of the Fourteenth Amendment; the Due Course of Law provision of article I, sections 13 and 19 of the Texas Constitution; the Cruel and Unusual Punishment provisions of the Eighth Amendment; and the Cruel and Unusual Punishment provision of article I, section 13 of the Texas Constitution, respectively.
We have addressed appellant's contention in his sixth point of error in previous cases and held that it was not error for a trial court to refuse testimony be admitted concerning parole. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). Traditionally, in Texas, parole is not a matter for a jury's consideration in a capital murder trial. Id.; Ellason v. State, 815 S.W.2d 656, 665, n. 5 (Tex.Crim.App.1991); Stoker v. State, 788 S.W.2d 1, 16 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951 , 111 S.Ct. 371 , 112 L.Ed.2d 333 (1990). The subject is not proper even in the context of the second special issue because when a jury is considering whether a defendant represents a continuing threat to society, the term "society" includes both the prison and non-prison populations. Jones, 843 S.W.2d at 495 ; Boyd v. State, 811 S.W.2d 105 , 118 n. 12 (Tex.Crim.App.1991). Therefore, as appellant's points of error have been previously raised and rejected, his sixth point of error is overruled.
A. Texas Constitutional Challenges
In appellant's eighth, tenth, and twelfth points of error he contends his inability to inform the jury concerning parole violates the Equal Protection Clause, the Due Course of Law Clause, and the Cruel or Unusual provisions, respectively, of the Texas Constitution. Appellant recognizes our general ability to interpret our State Constitutional guarantees as broader than the Federal Constitution. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).
1. Texas Equal Protection Clause
Appellant contends that the Legislature's decision to keep parole information from capital juries yet inform non-capital juries of the same violates the Equal Protection Clause of the Texas Constitution. [9] In determining whether a criminal statute violates *847 the Equal Protection Clause of article I, section 3 of the Texas Constitution, we begin with the presumption that the purpose of the Statute is constitutional. HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex.1994); Whitworth v. Bynum, 699 S.W.2d 194, 196 (Tex. 1985); Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979) (on rehearing); Middleton v. Texas Power & Light Co., 108 Tex. 96 , 185 S.W. 556, 561 (1916); see Texas Public Building Authority v. Mattox, 686 S.W.2d 924, 927 (Tex.1985); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The party challenging the statute on equal protection grounds has the burden to show that the statutory classification is not rationally related to a legitimate state interest where interests other than fundamental rights or suspect classification are affected. HL Farm Corp., 877 S.W.2d at 290 ; Whitworth, 699 S.W.2d at 196 ; Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex.1981). [10]
However, the classification must discriminate against similarly situated individuals. See Ex parte Spring, 586 S.W.2d 482, 486 (Tex.Crim.App.1979) (comparison of class C misdemeanor defendants whose cases filed in municipal court and those whose cases were filed in justice court). In this instance appellant's equal protection complaint is not among similarly situated individuals, that is, he is treated the same as all capital defendants. [11] See Knox v. State, 744 S.W.2d 53, 63 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061 , 108 S.Ct. 2834 , 100 L.Ed.2d 934 (1988) (entire capital punishment scheme is different than non-capital punishment scheme); Butler v. State, 872 S.W.2d 227, 240 (Tex.Crim.App.1994) (capital sentencing scheme that permits jury consideration of unadjudicated offenses which differs from punishment scheme in non-capital cases does not violate federal equal protection); Janecka v. State, 739 S.W.2d 813, 833 (Tex.Crim. App.1987) (differing procedures of jury voir dire in capital and non-capital cases does not violate federal equal protection). Appellant's eighth point of error is overruled.
2. Other Texas Challenges
In appellant's tenth and twelfth points of error, he argues that failure to instruct the jury on parole violates the due course of law clause of the Texas Constitution and the prohibition against Cruel or Unusual Punishment in the Texas Constitution. However, appellant's arguments are based entirely upon the federal constitution. [12] Appellant proffers no argument or authority of how the protection offered by the Texas Constitution differs from the protection guaranteed by the U.S. Constitution. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992), cert. denied, ___ U.S. ___, 114 S.Ct. 154 , 126 L.Ed.2d 115 (1993). We are not inclined to make appellant's arguments for him. Id.; Tex.R.App.Proc. 74 and 210. Appellant's tenth and twelfth points of error are overruled.
B. Federal Constitutional Challenges
1. Equal Protection Clause
In appellant's seventh point of error, he complains the differing instructions to capital and non-capital defendants in Texas violates the Equal Protection Clauses of the *848 U.S. Constitutions. [13] We disagree. In Knox v. State , we noted that the "entire sentencing structure and punishment scheme in capital cases has always been different from the sentencing procedure in non-capital cases...." 744 S.W.2d at 63 . This Court further held in Knox that these differing procedures concerning parole instructions do not violate the Equal Protection Clause. Id.; see Butler, supra ; Janecka v. State, supra . [14] Appellant's seventh point of error is overruled.
2. Due Process
In the ninth point, appellant asserts that failure to inform the jury of the nature of parole for capital defendants violates the Due Process Clause of the U.S. Constitution. During trial appellant's expert, Dr. Fason, testified concerning appellant's mental condition. In Dr. Fason's opinion appellant suffered from an antisocial reaction. Appellant's prognosis was also discussed. Dr. Fason testified as follows,
The prognosis is kind of interesting because the psychiatric records and treating individuals' records by and large has been very, very poor. They don't fit into the psychiatric mode. They don't have a respect for the truth that is necessary when you depend upon words for communication and thereby enlarge just using words to manipulate people rather than communicate. And so it's the ordinary techniques and methods of psychiatry are not very helpful. As far as the prognosis is concerned, the most interesting thing about it, even though psychiatry has not by and large been affected there are some exceptions to that. It has been that you see a lot of people in their twenties with this diagnosis. Anyone in the criminal justice system who has been here a while sees an awful lot of people who are 18 to 29 that would fall into that category. When people get past the age of 30 you don't see that many in the criminal justice system. And past age 40 you rarely ever see someone with this diagnosis past the age of 40.
Appellant argues the recent Supreme Court plurality decision in Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994) and their action in Price v. North Carolina, ___ U.S. ___, 114 S.Ct. 2777 , 129 L.Ed.2d 888 (1994), indicate that a formal instruction concerning a defendant's parole eligibility may be required under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In Simmons v. South Carolina, supra , a plurality of the Supreme Court held that "where the [capital] defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." ___ U.S. at ___, 114 S.Ct. at 2190. In Price , the Supreme Court reversed, vacated, and remanded Price's case to the North Carolina Supreme Court for further action not inconsistent with Simmons . Price, unlike Simmons, was parole eligible in twenty years.
Initially, we must address appellant's contention that the Supreme Court's action in Price indicates that Simmons has been extended to parole eligible defendants. We absolutely reject this premise. The Supreme Court's action in Price does not hold any precedential value or send a "signal" as to the proper disposition of Price's case. In *849 fact, the Supreme Court of North Carolina has again recently reaffirmed Price's case in light of Simmons. State v. Price, 337 N.C. 756 , 448 S.E.2d 827 (N.C.1994). We do agree with appellant that Simmons indicates that in some instances a jury may be required to be informed of a defendant's parole eligibility. [15] However, in Texas this is generally not the case.
Initially, we note that the Texas Constitution prohibits, without legislative action, the jury to consider parole in any manner when considering whether a capital defendant should be sentenced to life or death. Elliott v. State, 858 S.W.2d 478 , 489 n. 7 (Tex.Crim.App.), cert. denied, ___ U.S. ___, 114 S.Ct. 563 , 126 L.Ed.2d 463 (1993); Boyd v. State, 811 S.W.2d 105, 121 (Tex.Crim.App. 1991). Absent a federal constitutional requirement to the contrary, it will remain the policy of Texas not to officially inform jurors of the actual consequences of a life sentence. [16] Prior to Simmons , the Supreme Court had indicated that whether a jury was informed concerning parole was traditionally a determination left to the States. See Simmons , ___ U.S. at ___, 114 S.Ct. at 2196 ("It is true that [ California v. ] Ramos [, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983),] stands for the broad proposition that we generally will defer to a State's determination as to what a jury should and should not be told about sentencing. In a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole."); ___ U.S. at ___, 114 S.Ct. at 2200 (O'Connor, J., concurring); California v. Ramos, 463 U.S. at 1013, n. 30 , 103 S.Ct. at 3460, n. 30 (1983) ("Many state courts have held it improper for the jury to consider or to be informed—through argument or instruction—of the possibility of commutation, pardon, or parole."); Knox v. Collins, 928 F.2d 657, 660 (5th Cir.1991) (Constitution does not compel instruction on parole.); King v. Lynaugh, 850 F.2d 1055, 1059-1061 (5th Cir. 1988) (en banc), cert. denied, 489 U.S. 1093 , *850 109 S.Ct. 1563 , 103 L.Ed.2d 930 (1989) (Federal Constitution does not require voir dire inquiry concerning potential jurors views of parole.); Andrade v. McCotter, 805 F.2d 1190, 1192-1193 (5th Cir.1986) (No constitutional violation to the denial of a parole instruction under the Cruel and Unusual Punishment Clause of the Eight Amendment and the Due Process Clause of the Fourteenth Amendment.); O'Bryan v. Estelle, 714 F.2d 365, 388-389 (5th Cir.1983) (An instruction on parole is not required under the Due Process Clause of the Fourteenth Amendment).
The question then becomes when does the Due Process Clause require the jury to be informed of a defendant's parole eligibility in contravention of our State Constitution. We note that the Simmons opinion on its face seems to be limited to states which have life without parole and not to states which have life with parole eligibility. [17] Simmons, ___ U.S. at ___, 114 S.Ct. at 2200 (O'Connor, J., concurring) ("In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact."); see Allridge v. Scott, 41 F.3d 213, 220-222 (5th Cir.1994) ("We therefore read Simmons to mean that due process requires the state to inform a sentencing jury about a defendant's parole ineligibility when, and only when, (1) the state argues that a defendant represents a future danger to [free] society, and (2) the defendant is legally ineligible for parole." [footnotes omitted.]); Kinnamon v. Scott, 40 F.3d 731, 733 (5th Cir.1994) ("If we were to ignore the absence of a contemporaneous objection and the bar of Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), we would not extend Simmons beyond cases in which the sentencing alternative to death is life without parole."); Ingram v. Zant, 26 F.3d 1047 , 1054 n. 5 (11th Cir.1994) ( Simmons was not applicable in Georgia "because prior to May 1, 1993, Georgia law did not provide for life imprisonment without parole."); State v. Skipper, 337 N.C. 1 , 446 S.E.2d 252 (1994) ( Simmons inapplicable because appellant was eligible for parole); Ramdass v. Commonwealth, 248 Va. 518 , 450 S.E.2d 360, 361 (1994) ( Simmons only applicable if Radmass was ineligible for parole at time of conviction.); Wright v. Commonwealth, 248 Va. 485 , 450 S.E.2d 361, 362 (1994) (same); see also State v. Southerland, 447 S.E.2d 862 (S.C.1994) (trial courts are now required to inform the jury, upon request of counsel, a defendant's parole ineligibility following Simmons . ); but see Clark v. Tansy, 118 N.M. 486 , 882 P.2d 527 (1994) ( Simmons was held applicable). However, this is not the only distinction that can be drawn between the Texas sentencing system and Simmons .
In Simmons the Supreme Court relied upon their earlier plurality opinion in Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977) in holding the South Carolina procedure violated due process. Simmons , ___ U.S. at ___, 114 S.Ct. at 2192. In Gardner a plurality of the Court held that a defendant could not be executed "on the basis of information which he had no opportunity to deny or explain." 430 U.S. at 362 , 97 S.Ct. at 1207 . There the trial court ordered *851 a presentence investigation report to be conducted while the jury was deliberating. [18] 430 U.S. at 352-353 , 97 S.Ct. at 1201-02 . The jury returned an advisory verdict of life. Some three weeks later, the trial court disregarded the jury's advise and sentenced Gardner to death. This sentence was in part based upon the factual information contained in the presentence investigation report, a portion of which was confidential and not disclosed to Gardner's defense counsel. Gardner was denied due process because the trial court relied upon relevant evidence which Gardner had no opportunity to deny or explain. 430 U.S. at 362 , 97 S.Ct. at 1206-07 . Clearly it cannot be true that the Due Process Clause commands a trial court or an attorney to correct community misunderstandings concerning the judicial system, unless those misunderstandings are somehow injected into the trial by one of the parties. Gardner , therefore, indicates that a jury or judge cannot determine a defendant's sentence based upon evidence or information presented at trial which the defendant has not been given an opportunity to rebut or explain. The critical question thus becomes, what information injected by the prosecution in South Carolina did Simmons not have the opportunity to rebut or explain.
In South Carolina, the jury determines whether a defendant should be sentenced to death. S.C.Code Ann. § 16-3-20(C) (Law. Co-op. 1976). In Simmons the prosecution urged the jury to vote for the death penalty because Simmons would be released from prison. [19] The Court noted that the prosecutor argued that Simmons' "future dangerousness was a factor for the jury to consider when fixing the appropriate punishment." ___ U.S. at ___, 114 S.Ct. at 2190. "In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration." ___ U.S. at ___, 114 S.Ct. at 2193; see ___ U.S. at ___, 114 S.Ct. at 2199 (Ginsburg, J., concurring) ("When the prosecution urges a defendant's future dangerousness as cause for the death sentence, the defendant's right to be heard means that he must be afforded an opportunity to rebut the argument."); ___ U.S. at ___, 114 S.Ct. at 2200 (O'Connor, J., concurring) ("But `where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty ...'"). *852 In fact this was Simmons' very argument to the Supreme Court. He "argued that, in view of the public's apparent misunderstanding about the meaning of `life imprisonment' in South Carolina, there was a reasonable likelihood that the jurors would vote for death simply because they believed, mistakenly, that [he] eventually would be released on parole." ___ U.S. at ___, 114 S.Ct. at 2191.
More troubling in South Carolina was the apparent absence of procedural protections to prevent a jury's misunderstanding of parole. In Simmons' trial, "defense counsel was forbidden even to mention the subject of parole, and expressly was prohibited from questioning prospective jurors as to whether they understood the meaning of a `"life"' sentence under South Carolina law." ___ U.S. at ___, 114 S.Ct. at 2190. Simmons was barred from even inquiring whether potential jurors could disregard the subject of parole in determining his appropriate punishment. Simmons , ___ U.S. at ___, 114 S.Ct. at 2190. In Texas, however, we have provided numerous safety measures to prevent such a misunderstanding. While our juries are not informed of a meaning of a life sentence, Boyd, 811 S.W.2d at 118-119 , counsel is permitted to examine each prospective juror extensively about whether they can obey an instruction forbidding their consideration of parole in their deliberations, and jurors unable to set aside parole from their consideration of the sentence are challengeable for cause. Jackson v. State, 822 S.W.2d 18, 27 (Tex.Crim.App.1991), cert. denied, ___ U.S. ___, 113 S.Ct. 3034 , 125 L.Ed.2d 722 (1993); Felder v. State, 758 S.W.2d 760, 762-67 (Tex.Crim.App.1988); Ellason v. State, 815 S.W.2d 656, 665-666 (Tex.Crim.App. 1991); Mays v. State, 726 S.W.2d 937, 950 (Tex.Crim.App.1987), cert. denied, 484 U.S. 1079 , 108 S.Ct. 1059 , 98 L.Ed.2d 1020 (1988). Additionally, the State is not permitted to argue to the jury that a defendant should be sentenced to death because he will be released from prison on parole. [20] Franklin v. State, 693 S.W.2d 420, 429 (Tex.Crim.App. 1985), cert. denied, 475 U.S. 1031 , 106 S.Ct. 1238 , 89 L.Ed.2d 346 (1986). [21] And finally, were a jury to consider parole in its deliberations a defendant may be entitled to a new trial. Tex.R.App.Proc. 30(b)(7); Buentello v. State, 826 S.W.2d 610, 610-614 (Tex.Crim. App.1992); Ex parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App.1990); Callins v. State, 780 S.W.2d 176, 191 (Tex.Crim.App. 1986), cert. denied, 497 U.S. 1011 , 110 S.Ct. 3256 , 111 L.Ed.2d 766 (1990); Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984). [22]
In the instant case, the issue of appellant's potential early release from prison based upon parole, pardon or commutation, *853 was not placed before the jury either through argument or evidence. [23] Therefore, due process did not require that appellant be permitted to inform the jury of the meaning of "life" imprisonment. Because Texas does not allow parole information to enter the jury's deliberations, a defendant is not sentenced based upon information which he has had no opportunity to rebut or explain. [24] Appellant was not denied due process of law when the trial court refused to instruct the jury on parole. The trial court properly followed the Texas Constitutional commands in prohibiting parole from being considered by a capital jury. Appellant's points of error are overruled.
3. Eighth Amendment
In appellant's eleventh point of error, he contends that failure to inform the jury about parole violated the Eighth Amendment. This contention was raised and rejected in Elliott v. State, 858 S.W.2d 478, 489-490 (Tex.Crim.App.1993). Simmons was confined to Due Process analysis only, and the Court expressly stated that they were not addressing any Eighth Amendment claims. ___ U.S. at ___, 114 S.Ct. at 2193, n. 4. We note, however, that the concept of parole eligibility "bears no relationship to the nature of the offense or the character of the offender." Andrade v. State, 700 S.W.2d at 590 (Teague, J., concurring); see also California v. Ramos, 463 U.S. 992, 1021 , 103 S.Ct. 3446, 3464 , 77 L.Ed.2d 1171 (1983) (Marshall, J. dissenting) ("[The possibility of parole or commutation] bears no relation to the defendant's character or the nature of the crime, or to any generally accepted justification for the death penalty.") [25] Appellant's twelfth point of error is overruled.
IV. CHARGE ISSUES
In appellant's thirteenth through fifteenth points of error, he complains the trial *854 court erred in overruling his proposed instruction concerning mitigating evidence, in overruling his objection to the instruction given, and in refusing to include his fourth special issue, respectively. Appellant's request for a mitigating instruction is based upon Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). [26] Because we have previously approved of the identical nullification instruction given in this case, appellant's thirteenth and fourteenth points of error are overruled. Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994); Goynes v. State, No. 71387 (Tex.Crim.App. delivered Dec. 12, 1994). [27] We have also previously held that a trial court does not err in submitting a "nullification instruction" rather than a separate special issue. Robertson v. State, 871 S.W.2d 701, 710 (Tex.Crim. App.1994). Appellant's fifteenth point of error is overruled.
In the eighteenth point of error, appellant argues the trial court erred in correcting an erroneous charge after deliberations began but prior to the jury's verdict. The trial court submitted conflicting instructions to the jury. The court first instructed the jury that they cannot consider the extraneous offenses for purposes of answering the special issues unless they find the extraneous offenses were committed by appellant beyond a reasonable doubt. The court then instructed the jury that they could only consider the extraneous offenses when passing upon the weight of "said testimony" and for no other purpose. [28] After arguments, the jury began deliberations, and one hour later recessed for lunch. At that point the trial court removed the second conflicting instruction. On appeal, appellant does not object to the content of the corrected charge. At trial, appellant did not object to the charge being altered after arguments had begun. Appellant mentioned that there were possible objections, but he failed to make any. [29]
Article 36.16 of the Texas Code of Criminal Procedure has been interpreted to permit a trial court to withdraw and correct its charge if convinced an erroneous charge has been given. [30] Bustillos v. State, 464 S.W.2d 118 , *855 125-126 (Tex.Crim.App.1964); Nowlin v. State, 76 Tex.Cr.R. 480 , 175 S.W. 1070, 1072 (1915). Appellant argues these cases should be abandoned because to permit the revision of the charge after argument has begun is to also permit sloppy lawyering.
In 1913, the Texas Legislature amended the procedures relating to jury charges enacting article 737a of the Code of Criminal Procedure. Tex.S.B. 166 (1913). In 1915, this Court recognized that if interpreted literally, the court would have "no right over appellant's objection to change his charge or give any additional charge, in any contingency after the argument has been concluded, except those mentioned" in the article. Nowlin, 175 S.W. at 1072 . Nevertheless, the Court held that,
taking all of our statutes and previous decisions into consideration, and the purpose and object of the legislature in making the changes by said act of 1913, said article 737a should not be construed to prohibit the court absolutely under all circumstances from changing or adding to his charge.
Id. This has remained the law in Texas. See Bustillos, 464 S.W.2d at 125-126 ("In light of purpose of [art. 36.16] the court may before verdict withdraw and correct its charge if convinced an erroneous charge has been given."); Chambers v. State, 379 S.W.2d 907, 908 (Tex.Crim.App.1964) ("If the matter is before us, we find no error in the court's amending his charge in order to correctly state the law."); Hill v. State, 92 Tex.Crim. 312 , 243 S.W. 982, 983 (App.1922) ("... we think it not open to question as to the right of the trial court to withdraw his charge after the conclusion of the argument .."); Jacobs v. State, 213 S.W. 628, 628-629 (Tex.Crim. App.1919) (appellant may waive right to complain of agreed alteration in charge after jury arguments); Gaines v. State, 710 S.W.2d 630, 632-633 (Tex.App.—Corpus Christi 1984, pet. ref'd); Morlett v. State, 656 S.W.2d 603, 606 (Tex.App.—Corpus Christi 1983, no pet.); Smith v. State, 635 S.W.2d 591 , 593 n. 1 (Tex.App.—Dallas 1982, no pet.) (on rehearing); see Murray v. State, 857 S.W.2d 806, 808-809 (Tex.App.—Fort Worth 1993, no pet.) (late supplementation of charge, over objection, which undercut defendant's defense and jury argument denied defendant fair trial); Moore v. State, 848 S.W.2d 920, 922 (Tex.App.—Houston [1st Dist.] 1993, pet ref'd) (not permissible where amended charge was to defendant's detriment and over his objection). In urging this Court to abandon stare decisis, appellant argues that continuing the practice of correcting erroneous jury instructions after arguments are concluded will encourage "sloppy" lawyering. However, appellant's concern is empirically unfounded, as is illustrated by the few cases complaining of a trial court's correction of an erroneous charge. We are not inclined to overrule these precedents based upon appellant's arguments in this case. Appellant's eighteenth and final point of error is overruled.
Appellant's conviction and the judgment of the trial court are affirmed.
BAIRD, Judge, concurring.
The central issue in this case can be stated as follows: In light of Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), does the Due Process Clause of the United States Constitution require that the jury be informed of how long a capital murder defendant will be confined before being parole eligible in the event he is sentenced to confinement for life rather than death.
I.
Prior to Simmons our law was clear, the matter of parole or a defendant's release thereon was not proper for a jury's consideration in a capital murder trial and a capital murder defendant was not entitled to a jury instruction explaining our parole laws. Stoker v. State, 788 S.W.2d 1, 16 (Tex.Cr.App. 1989); O'Bryan v. State, 591 S.W.2d 464, 478 (Tex.Cr.App.1979); and, Andrade v. State, 700 S.W.2d 585, 587 (Tex.Cr.App.1985). These holdings were not subject to federal *856 attack because the States have the power to determine whether their criminal justice system will allow such an instruction; Due Process neither compels, nor prohibits, a jury instruction on state parole laws. California v. Ramos, 463 U.S. 992, 1013-1014 , 103 S.Ct. 3446, 3460 , 77 L.Ed.2d 1171 (1983). Appellant questions the continued viability of these cases in light of Simmons .
II.
Simmons is composed of five separate opinions; the lead opinion, authored by Justice Blackmun, failed to garner a majority of the Court. Such a resolution provides little guidance to the bench and bar. Moreover, the future of the affected area of the law remains uncertain. When the law is uncertain, appellate court judges have little confidence in how to proceed when confronted with similar issues. In these situations, this Court has opted to read Supreme Court opinions in their most narrow light. [1]
In this narrow light, the plurality holds Simmons has no application because, unlike South Carolina, a Texas capital murder defendant sentenced to confinement for life is eligible for parole. This narrow reading is supported by two of the opinions in Simmons . In his plurality opinion Justice Blackmun stated:
... In a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole.
Simmons, ___ U.S. at ___, 114 S.Ct. at 2196. In her concurring opinion, Justice O'Connor stated: "In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of [parole eligibility]." Id., at ___, 114 S.Ct. at 2200 (O'Connor, J., concurring).
Under the instant interpretation of Simmons , there will never be a Due Process violation as long as the possibility of parole exists, regardless of how remote.
III.
Today, a Texas capital murder defendant sentenced to life must serve 40 years before being eligible for parole. One might question whether there is a meaningful distinction between life without the possibility of parole and being parole eligible after serving 40 years in confinement. Would due process be violated if our law provided that a capital murder defendant must serve 100 years in confinement before being parole eligible? Or 1,000 years? From my reading of Simmons , the Supreme Court perceives a distinction. While the dissenters may argue that such a distinction promotes form over substance, it is nevertheless a distinction of Constitutional magnitude in the mind of the Simmons Court.
IV.
Based upon the Supreme Court's treatment of its own decisions, I believe Simmons is a fact bound opinion. See, Mines v. State, 888 S.W.2d 816, 817 (Tex.Cr.App.1994) (op. on remand from United States Supreme Court) (Baird, J., concurring). Because Simmons is limited to cases where the defendant is ineligible for parole, and because appellant is eligible for parole, there is no due process violation. [2]
With these comments, I join only the judgment of the Court.
*857 MANSFIELD, Judge, concurring.
Appellant argues that in light of Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), the Due Process Clause of the Fourteenth Amendment to the United States Constitution mandates that the jury in a capital murder case be told how much time the defendant will be required to serve in the event he is sentenced to life in prison rather than to death.
It is important to note that Simmons is a collection of five separate opinions and there is no majority opinion. As such, the precedential value of Simmons is limited, though it is fair to conclude that it would apply to Texas if the alternative to the death sentence in a capital murder case here were life in prison without parole. Since that is not true under current Texas law, Simmons , in my opinion, is not applicable.
The Texas Legislature has established the procedure to be followed once an individual is convicted of capital murder. Tex.Code Crim. Proc.Art. 37.071 (as amended, effective for offenses committed on or after September 1, 1991). The Legislature has also determined that the jury in a capital case is not to be charged as to the law relating to parole and/or good time in any case in which the defendant has been convicted of a capital felony. Tex.Code Crim.Proc.Art. 37.07, § 4 (1994). Given this clear expression of legislative intent, it is my opinion that it would be inappropriate for this Court to substitute its own judgment and overrule Art. 37.07, § 4, absent clear direction from the Supreme Court that we must do so. In my opinion, Simmons is not that clear direction.
Subject to the comments above, I join the opinion of the Court but only concur with the disposition of point of error number nine.
CLINTON, Judge, dissenting.
Appellant argues in his ninth point of error that the trial court erred in failing to let him inform the jury, as per his explicit request, that if assessed a life sentence, he would be required by law to serve a minimum of fifteen years confinement in the penitentiary before he would even be eligible to be paroled by the Board of Pardons and Paroles. The plurality rejects this contention on the following reasoning. First, the plurality cites the "policy" of this state, grounded in principles of separation of powers, to prohibit jury deliberation on parole in capital cases, and "not to officially inform jurors of the actual consequences of a life sentence." Op. at 849. Second, notwithstanding the opinion of the United States Supreme Court in Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), the plurality concludes that the Due Process Clause of the Fourteenth Amendment does not require informing the jury as appellant requested in this cause, and thus does not trump our own state-constitutionally-based policy against it.
After careful consideration, I find I must disagree with the plurality in both its conclusions. First, I believe we have been mistaken over the last twenty years to conclude that principles of separation of powers somehow prohibit (we have never expressly explained how) informing jurors in a capital case that a capital defendant sentenced to life imprisonment must serve a certain minimal length of that sentence before he becomes eligible for parole. They do not. Second, that a capital defendant sentenced to serve a life sentence must actually serve a certain minimum length of that sentence before becoming eligible for parole seems to me to be "indisputably relevant" to the determination whether he will "commit criminal acts of violence that would constitute a continuing threat to society" under former Article 37.071(b)(2), V.A.C.C.P. See Simmons, supra, at ___, 114 S.Ct. at 2194, 129 L.Ed.2d at 142. Extrapolating from the principles announced in the plurality opinion in Simmons , the conclusion seems inescapable to me that failure to avail the jury of this "indisputably relevant" information violates due process—at least where, as here, there is evidence that by the time the defendant has served the statutory minimum penitentiary time, his potential "threat to society" at large *858 will be greatly reduced. In my view, then, state separation of powers does not prevent, and federal due process positively requires, at least upon request, that the jury be informed of, and allowed to consider for its relevance to future dangerousness, the minimum length of time a capital defendant sentenced to life must serve before becoming parole-eligible.
I.
Appellant committed the instant offense on May 15, 1990. An accused convicted of committing a capital murder on that date is required by statute to serve a minimum of fifteen years in the penitentiary, exclusive of good time credits, before becoming eligible for parole. See former Article 42.18, § 8(b), V.A.C.C.P., prior to its amendment by Acts 1991, 72nd Leg., ch. 652, §§ 10 & 15(b), pp. 2396-97, eff. Sept. 1, 1991. This means that appellant would not even become eligible for release on parole until well into his upper thirties.
At the punishment phase of trial appellant called Dr. Fred Fason, a board certified psychiatrist, to testify. Fason had examined appellant prior to trial for purposes of determining his sanity at the time of the offense and his competency to stand trial. In the course of this examination Fason concluded that appellant was "suffering from antisocial, what is now referred to as antisocial reaction[,]" formerly known as "sociopathic disturbance." Fason elaborated that antisocial reaction:
"is characterized by ... the rebelliousness, self-centeredness, concern for oneself and difficulties with the law of antisocial behavior. In essence, it's the person's mental problems manifested in their behavior rather than in their thinking or their feelings.
Q How does a person in effect become that way? Again for want of a better phrase, is this something that a person is born with or is it something that the person develops during an individual development as a human being?
A There are somewhat different theories. I will try to explain it to the best that I can. * * * [T]he first thing about the sociopathic personality disorder or the antisocial individual has to do with what occurs at relatively an early age of development. Most of us when we get to—those of us who have children, remember when our children were a year and a half or two years old. Before the age of two, children that are that age are prone to be very narcissistic. And what I mean by that I mean they view the world and their whole life as when they cry and vomit and mama appears and fees [sic] them. If they are cold, they cry and mama appears and covers them up, etcetera. Now, their views are prone to see the mother as kind of a light, the genie from Aladdin's lamp. And around the age of two and a half or somewhere in there the child becomes aware that mother looks after him because she loves him, not because she has to. And it's a whole new ball game. Mother with children experience this. They say that this is when the terrible twos become the terrific threes and the child understands now that Mother is looking after him not because he makes her do that but because she loves him and it's a whole new ball game.
Now, the narcissistic individual is left in a sense like the year and a half old baby that he feels entitled to whatever he wants. And people get started at this stage of development they become self-centered, they don't really are [sic] about other people. And this is a sense almost of the sociopath or psychopath. There is an additional factor that gets superimposed and without—and I hope I'm not being disruptive for the Court or the ladies and gentlemen of the jury. I will have to quote what goes on inside the mind of the psychopath to relieve the stress that others of us experience. And it is an attitude that is expressed by what people say to themselves in the phrase—and this is based upon the examination of hundreds of individuals who have fallen into the diagnostic category. Again if you will pardon the expression, it's fuck it, I don't care. And this is what the *859 individual says to himself about the things that are normally stressful to him. And in order to make it work he has to act like it and many individuals that, as with Mr. Smith when I asked him if he remembers when he started saying that to himself and he clearly remembered it. And it was a way of discounting. It's a way of avoiding shame. It's a way of avoiding the ordinary drive control that we use to control our impulses.
* * * * * *
The sociopathic personality at some point in the development not only is started at the narcissistic level but adopts as a life-style the phrase to himself that enables him to discount the rules. And if you say well, aren't you ashamed of that, you get that response. Are you concerned that it hurts that person, and again it's that same phrase. And this frees the sociopathic personality from having to struggle with conflicts that most of us struggle with in life. It comes out in their behavior.
Q Let me clarify that for myself. You used the term drive controls—
A Yes.
Q —that are in place for the normal individuals who interact with other people on a daily basis in our society; is that right?
A Yes.
Q Those drive controls would be shame?
A Yeah. The three drive controls that most of us use to control our impulses are, number one, shame. That is what it says about us. I might get an impulse to do something and it might be a natural impulse, as Freud said, but I might think I'm not that kind of person. I don't want to be the kind of person that would do something like that. And if I did that I would be ashamed of doing that and I wouldn't want to feel that way and that would keep me from acting on that impulse. Now, that's one.
The second one would be guilt. I don't like to feel guilty. I don't know about you but I don't think most normal people like to feel guilty about something. And I don't like to do things that make me feel guilty. * * *
The third drive control that we normally use is concern about the consequences. * * * So that you have those three types of drive control that people use to fit in this society.
Q All right. Go ahead. I'm sorry.
A Mr. Smith doesn't have those. He quit using those a long time ago.
Q And as I understand, that has been replaced, the concern for those three areas or drive controls have been basically either replaced or covered up with—again my apologies to the jury—the attitude of the phrase fuck it, I don't care?
A That is right. When his conscience started to speak to him years and years ago the little voice inside says you shouldn't do that. But he started saying that to his conscience so many years ago that he even quit listening to it and quit hearing it."
Asked what appellant's "prognosis" would be, Fason replied:
"... [Y]ou see a lot of people in their twenties with this diagnosis. Anyone in the criminal justice system who has been here a while sees an awful lot of people who are 18 to 29 that would fall into that category. When people get past the age of 30 you don't see that many in the criminal justice system. And past age 40 you rarely ever see someone with this diagnosis past the age of 40.
* * * * * *
... [Sociopaths] get into their late twenties or early thirties or sometimes mid-thirties and they start realizing they do care and telling themselves they don't care doesn't work anymore. And when it doesn't work anymore then they have to start changing their whole lifestyle.
... What happens to them when they get to their forties? Occasionally you will *860 see one but it is relatively rare or at least uncommon in comparison to the number of individuals that fall into this diagnostic category in their twenties.
When appellant next attempted to ask Dr. Fason how long appellant would be required to serve in the penitentiary before he would become eligible for parole, the State objected, and a lengthy bench conference ensued. Ultimately the trial court ruled that the answer to this question was inadmissible because it would invite jurors to disregard the conventional jury instruction charging them not to consider any action the Board of Pardons and Paroles might take on some future occasion. Dr. Fason was ultimately allowed to testify in response to questioning by appellant, however, that "the length of time that a person is locked up might be a factor in determining whether or not that person is a danger to this community[.]" [1]
Later, at the jury charge conference, appellant requested "that the parole instruction be withdrawn and that the defendant be permitted through counsel to instruct the jury and tell the jury as to the length of time the defendant in all probability will be forced to spend ... [t]hat it would be 15 years." This request was denied. The trial court instructed the jury:
"During your deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles Division of the Texas Department of Criminal Justice or of the Governor, or how long the defendant would be required to serve to satisfy a sentence of life imprisonment."
On one occasion during his final summation, appellant's counsel attempted an oblique rhetorical allusion to the fact that appellant would not be a danger to the general public by the time he might be paroled, viz: "I assure you that by the time the bus from Texas Department of Corrections drops him off at the bus stop most of us won't be around any more." The State's objection to this argument was sustained, and the jury instructed to disregard it.
II.
The plurality observes that the jury in a capital case may not "consider parole in any manner when considering whether a capital defendant should be sentenced to life or death." Op. at 849. It is true that we have consistently held that judicial consideration of parole in sentencing would be improper in capital as well as non-capital cases. We have said so as early as Freeman v. State, 556 S.W.2d 287, at 304 (Tex.Cr.App.1977), and as late as Garcia v. State, 887 S.W.2d 846, 860 (Tex.Cr.App.1994). As a general proposition this is undoubtedly correct. "The evil to be avoided is the consideration by the jury of parole in assessing punishment." Rose v. State, 752 S.W.2d 529, at 535 (Tex.Cr.App. 1987) (Opinion on original submission), citing Clark v. State, 643 S.W.2d 723, at 725 (Tex. Cr.App.1982).
In a capital case in Texas, however, the jury does not "assess punishment." See Boyd v. State, 811 S.W.2d 105, at 120 (Tex. Cr.App.1991). Indeed, as of the time of appellant's trial, capital juries did not even decide "whether a capital defendant should be sentenced to life or death." They simply answered special issues, questions of fact relating to the deliberateness with which the defendant acted to cause the death of the deceased, the probability he would be a continuing threat to society, and whether his killing of the deceased was a reasonable response to provocation, if any. See former Article 37.071(b), V.A.C.C.P. That the jury in a capital punishment proceeding might *861 consider the minimum length of time a capital defendant serving a life sentence must actually serve before becoming eligible for parole, relevant to assessing the probability of his future dangerousness, does not mean it is considering parole "in assessing punishment."
A.
The Court has long held in non-capital cases that jury consideration of when the Board of Pardons and Paroles might release a convict on parole would constitute a judicial encroachment upon a manifestly executive function, in violation of Article II, § 1 of the Texas Constitution. This is surely correct. In Sanders v. State, 580 S.W.2d 349, at 351 (Tex.Cr.App.1978), we explained:
"[i]t 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 exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof."
See also Rose v. State, supra, at 532. It is for this reason that jury consideration of parole in a non-capital case is considered always to constitute jury misconduct under former Article 40.03(8), V.A.C.C.P., and now, Tex.R.App.Pro., Rule 30(b)(8). Sanders v. State, supra, at 352.
In 1985 the Legislature added Section 4 to Article 37.07, V.A.C.C.P. See Acts 1985, 69th Leg., ch. 576, § 1, p. 2195, eff. Sept. 1, 1985. This provision for the first time required trial courts to instruct juries in non-capital felony trials generally about the law of parole, but specifically that "[y]ou are not to consider the manner in which the parole law may be applied to this particular defendant." Nevertheless, the statutory instruction did authorize the jury in some unspecified sense to "consider the existence of the parole law and good conduct time." We therefore declared § 4(a) of Article 37.07 unconstitutional, on the basis, inter alia, that it violated separation of powers under Article II, § 1, supra. Rose v. State, supra, at 535.
The voters of Texas approved an amendment to Article IV, § 11 of the Texas Constitution in 1989 that for the first time authorized the Legislature to enact "laws that require or permit courts to inform juries about the effect of ... eligibility for parole... on the period of incarceration served by a defendant convicted of a criminal offense." See Acts 1989, 71st Leg., S.J.R. 4, § 1, p. 6414, approved Nov. 7, 1989. At the same time the Legislature reenacted Section 4 of Article 37.07, supra, thus reinstating the jury charge provisions we had struck down in Rose . See Acts 1989, 71st Leg., ch. 103, § 1, p. 442, effective upon approval of the constitutional amendment, Nov. 7, 1989. This Court later held that, Rose notwithstanding, a jury instruction given pursuant to the reenacted provision did not violate separation of powers. Oakley v. State, 830 S.W.2d 107, at 110 (Tex.Cr.App.1992).
By its terms, reenacted Article 37.07, § 4 expressly exempts capital cases from its operation. Thus, the Legislature has not expressly provided any law that permits or requires courts to inform juries of the effect of eligibility for parole on the period of incarceration that a capital defendant sentenced to life imprisonment must serve. [2] Article IV, § 11, supra. It may be argued accordingly *862 that, in the absence of such an express provision, the separation of powers principle of Sanders and Rose still prevails, preventing the trial court in a capital case from instructing the jury at punishment in any manner other than as the jury in this cause was in fact instructed, viz: that it may not consider any possible action of the Board of Pardons and Paroles or how long the defendant may actually have to serve to satisfy a life sentence.
This argument presupposes, however, that any jury instruction regarding parole in a capital case will violate separation of powers in the same way we perceived it would in Sanders . It presumes that a jury instruction about the parole law in a capital case will invite the jury to encroach upon the executive prerogative to grant parole in much the same way we feared that a jury so instructed in a non-capital case would. It seems to me, however, that that presumption merits greater scrutiny, and to that I now turn.
B.
The body of caselaw culminating in Sanders has since been incorporated uncritically into our capital jurisprudence. Without stopping to ask whether, and if so to what extent, jury consideration of parole in the punishment phase of a capital case really would encroach upon the executive function, the Court has simply assumed that it would, and ruled accordingly. In O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979), for example, the defendant requested a jury instruction that explained the parole process, and function of the Board of Pardons and Paroles, and then admonished the jury "not to consider in their deliberations parole or whether [the defendant] might be paroled at some date in the future." Id., at 478 . In holding the trial did not abuse its discretion in failing to give the requested instruction, the Court first observed that "[t]he matter of parole or a defendant's release thereon is not a proper consideration for a jury's deliberations on punishment." Id. Without explication, the Court then concluded: "This is also true in a capital case where the jury's task at the punishment stage is to answer the special issues." But is this necessarily so?
The earliest case in which a capital defendant expressly requested an instruction educating the jury as to the minimum time he would have to serve before becoming eligible for parole is Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985). There the defendant requested that the jury be instructed that:
"you are not to consider how much of his sentence the defendant would be required to serve before being released on parole, if his punishment is assessed at life imprisonment. You are instructed, however, that under the law, a person who is serving a sentence of life imprisonment for the offense of capital murder may not be considered for release on parole until his actual calendar time served, without consideration of good conduct time, is twenty (20) years."
The trial court refused this instruction, and Franklin complained of it on appeal. This Court simply quoted the above language from O'Bryan v. State, supra, as if it were self-evidently dispositive of Franklin's contention, and overruled this ground of error. But O'Bryan did not purport to address the question whether a specific jury instruction on minimum parole eligibility might be appropriate insofar as it relates to the jury's resolution of the question whether the accused will probably constitute a continuing threat to society. With all due respect, the matter is not as simple as we thought in Franklin .
Likewise in Andrade v. State, 700 S.W.2d 585 (Tex.Cr.App.1985), the defendant argued the trial court erred in failing to instruct the jury that, if sentenced to life imprisonment, he would not become eligible for parole until serving at least twenty calendar years. This *863 Court rejected this contention on authority of its earlier decision in Williams v. State, 668 S.W.2d 692 (Tex.Cr.App.1983). But in Williams the Court had a different question before it. There the defendant had objected to an instruction that was submitted to the jury cautioning it not to consider "how long this defendant would be required to serve to satisfy a sentence of life imprisonment." We held this instruction was not erroneous. That a capital jury may properly be admonished not to speculate as to the length of time a defendant will actually serve before he is paroled, however, does not necessarily mean that same jury may not also be told that he will have to serve a certain actual calendar time before he even becomes eligible for parole. The two instructions are not mutually exclusive, and propriety of the former does not logically establish impropriety of the latter. In my view this is a critical distinction, but one which has yet to be examined by the Court. Williams does not support the holding in Andrade any more than O'Bryan supported the holding in Franklin .
In Knox v. State, 744 S.W.2d 53 (Tex.Cr. App.1987), the defendant requested an instruction like the one we held Andrade was not entitled to. His request was denied. On appeal he invited this Court to "revisit" its holding in Andrade in view of the promulgation of Article 37.07, § 4, supra. We rightly observed that this provision on its face does not apply to capital cases. But Knox argued further that an instruction on the minimum period a capital convict sentenced to life imprisonment must serve before becoming eligible for parole "is necessary to guide the jury in answering the [future dangerousness] special issue." The Court's response to this argument is a puzzle. We said:
"[I]f it is clear that Article 37.07, § 4(a), does not apply to capital felonies, then it is also clear that jurors in capital cases should focus solely on the special issues submitted to them during the punishment phase. * * * Since jurors do not actually `sentence' a defendant in Texas capital cases, their attention should be directed only to answering the special issues without regard to the sentence that will ultimately be imposed."
Id., at 64 (emphasis in the original). It is of course true that the jury should focus on resolving the special issues at the punishment phase of a capital case, since that is its only function at that juncture. It is equally true that the jury should answer the special issues without regard for the outcome. In short, the jury's role is simply to find facts. To point this out, however, was hardly sufficient to answer Knox's contention. He argued that his requested instruction should have been given because minimum parole eligibility is in fact relevant to the jury's fact-finding function insofar as it relates to the issue of future dangerousness. We did not agree or disagree with this contention. We apparently ignored it.
We were once again confronted with a claim, in Jones v. State, 843 S.W.2d 487, at 495 (Tex.Cr.App.1992), that a capital defendant should have been allowed to inform the jury that "he would be confined a minimum of 20 years" in the event he were sentenced to life imprisonment. Citing O'Bryan and its progeny for the familiar but not-dispositive proposition that parole in general is not a proper consideration for capital juries, we overruled Jones' claim. Once again we failed squarely to address the contention that knowledge of the minimum parole eligibility date would be relevant to the jury's resolution of the second special issue. In other cases we have rejected generic claims that capital juries should have been instructed on "the parole laws." E.g., Stoker v. State, 788 S.W.2d 1, at 16 (Tex.Cr.App.1989); Elliott v. State, 858 S.W.2d 478, at 489-490 (Tex.Cr. App.1993); Garcia v. State, supra. We have yet, however, to offer a coherent explanation of why the minimum period a capital convict who is assessed a life sentence must serve to become eligible for parole should not be relevant to the issue of future dangerousness. Nor have we explained precisely how an instruction on minimum parole eligibility would violate Article II, § 1, supra. In my view the information is relevant, and informing *864 the jury of it would not violate separation of powers.
C.
Relevance
Evidence is relevant, under Tex.R.Cr. Evid., Rule 401, if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Moreover, "[a]ll relevant evidence is admissible," except as otherwise provided by, inter alia, the state constitution. Tex.R.Cr.Evid., Rule 402. If the fact that appellant must serve at least fifteen years of a life sentence has any tendency to make more or less probable that he will commit future acts of violence so as to constitute a continuing threat to society, then that fact cannot be excluded from the jury's consideration, at least not on the basis that it lacks relevance.
Is minimum parole eligibility relevant in this sense? It seems to me that, at least in combination with other evidence, it often is. We have consistently held that "society" is to be understood in its common acceptation in ordinary English, and that as such, its meaning is not limited either to the "society" existing outside the walls of the Texas Department of Criminal Justice, Institutional Division, or to that "society" that exists within those walls. We have construed "society" to embrace both. See, e.g., Sterling v. State, 830 S.W.2d 114, at 120, n. 5 (Tex.Cr.App. 1992); Caldwell v. State, 818 S.W.2d 790, at 798-99 (Tex.Cr.App.1991); Boyd v. State, supra, at 118, n. 12; Rougeau v. State, 738 S.W.2d 651, at 660 (Tex.Cr.App.1987). In predicting "the fact of consequence," viz : whether a particular capital defendant will constitute a continuing threat to "society," it would undoubtedly aid the jury to know which aspect of society he will be exposed to, and when.
We often see evidence, for example, that a capital defendant presents a much greater threat to the "society" at large than to the prison population. Sometimes, as in the instant case, there is evidence that in time the accused will not present much of a threat to either the prison population or the general public. See also, e.g., Matson v. State, 819 S.W.2d 839 (Tex.Cr.App.1991). In combination with this kind of evidence, knowing that the accused, if assessed a life sentence, will spend at least a certain minimum period of time incarcerated helps the jury to decide the probability that he will be a continuing threat to society, because it helps the jurors identify where he will be. Thus they can tell what portion of society may or may not be at risk. If the defendant must spend at least fifteen years in prison to satisfy a capital sentence of life imprisonment, the jury must decide the probability he will pose a threat to the prison population for at least that long, and then, the probability he will threaten the general public after that. Moreover, if there is evidence, as here, that in fifteen years the accused will not constitute a significant danger either inside or outside prison walls, the fact that he will be incarcerated until then tends to minimize the possibility of his ever constituting a threat, at least to the public at large. In short, appellant's location, to the extent it can be foretold with relative certainty, is an evidentiary fact from which the elemental fact, whether he will be a continuing threat to "society," may be, in part, derived. This evidentiary fact is "indisputably relevant" even under the provisions of our rules of criminal evidence.
Separation of Powers
Unless imparting this relevant evidentiary fact to the jury would violate separation of powers under Sanders , then, it ought to be accessible to the factfinder. In my view, the danger we noted in Sanders simply does not pertain to the question whether a capital jury should be informed how long a defendant who is sentenced to life imprisonment will have to serve before he becomes eligible for parole. Jury consideration of the minimum parole eligibility date as it relates to the issue of future dangerousness is manifestly a judicial function. It does not encroach upon the executive prerogative at all.
*865 At the punishment phase of a non-capital criminal case, the jury's function is not, as in a capital case, to make discrete findings of fact. Instead, the jury decides what term of punishment is appropriate within the statutorily prescribed range. "Deciding what punishment to assess is a normative process, not intrinsically factbound." Murphy v. State, 777 S.W.2d 44, at 63 (Tex.Cr.App.1988) (Plurality opinion on State's motion for rehearing). There is always the danger in a non-capital punishment proceeding that the jury, cognizant of the parole law, will abuse its wide discretion to decide what punishment is appropriate by imposing a sentence that takes the possibility of parole into account, and tries to adjust for it. [3] This encroaches unconstitutionally upon the executive function in that it attempts to anticipate and circumscribe exercise of the executive authority to grant parole. Sanders v. State, supra, at 351.
In a capital punishment proceeding the jury's role is more limited. The capital jury does not "assess punishment." Rather, it determines the existence of discrete facts, such as the probability the accused will commit criminal acts of violence that would constitute a continuing threat to society. Punishment is assessed according to the jury's resolution of these fact issues. See former Article 37.071(e), V.A.C.C.P. Capital jurors have no occasion to anticipate and circumscribe the executive parole authority. Because they do not "assess punishment" at all, they cannot assess death instead of a life sentence in order to prevent the eventual release of the accused on parole. Capital jurors just find facts. They weigh relevant information and answer special issues accordingly. Thus, when capital jurors consider the minimum parole eligibility date of a capital defendant serving a life sentence, they only use that information to more accurately gauge the probability of his future dangerousness —manifestly a judicial function. They do not try to predict when he will actually be released on parole. [4] Indeed, they do not pretermit, second-guess or otherwise interfere with any power or prerogative of the executive branch in any way. It therefore cannot be said that they violate the principle of separation of powers articulated in Sanders .
D.
An instruction on minimum parole eligibility in a capital case does not offend Article II, § 1, supra. Our handful of cases tacitly assuming that it does, such as Franklin, Andrade, and Knox, all supra, ought to be disapproved. Moreover, that Article 37.07, § 4, supra, does not expressly authorize a parole instruction in a capital case does not mean a capital jury cannot be informed as to minimum parole eligibility. That provision, in tandem with the amendment to Article IV, § 11, supra, was meant to authorize parole instructions notwithstanding any violation of separation of powers. Because informing a *866 capital jury on minimum parole eligibility does not violate separation of powers in the first instance, express legislative authorization for an instruction, pursuant to Article IV, § 11, supra, is unnecessary.
Thus, there is no constitutional or statutory impediment in Texas to informing capital jurors of the minimum period of time an accused sentenced to life imprisonment for a capital offense must serve to become eligible for parole. [5] There is no real "policy" against it, as the plurality perceives. Minimum parole eligibility is certainly relevant, under Rules 401 and 402 of the Rules of Criminal Evidence, and any evidence or instruction informing the jury of it ought to be permitted for that simple reason, if no other. Moreover, federal due process may require it, under Simmons v. South Carolina, supra. If so, there is no conflict with Texas law.
III.
Appellant contends there is in fact such a federal due process requirement. It is less than evident, reading Simmons on its face, that due process requires informing a capital jury of the statutory minimum period of service on a life sentence before parole becomes available under the law. On its face Simmons seems only to require informing the jury that parole is unavailable whenever that is true as a matter of state law and the issue of future dangerousness has been injected into the case. We have no provision for life- sans -parole in Texas. Nevertheless, logically extending the due process principle announced in Simmons leads me inexorably to conclude that the trial court erred in failing to allow appellant to inform the jury as he requested to do in this case.
Speaking for a plurality in Simmons , Justice Blackmun announced at the outset:
"that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible."
___ U.S. at ___, 114 S.Ct. at 2190, 129 L.Ed.2d at 138. Because our legislature has made future dangerousness one of the statutory criteria for imposition of the death penalty, it is "at issue" in every capital punishment proceeding in which the State seeks a sentence of death. Thus, it appears that the first prong of the Simmons due process test is always met in Texas. However, under Texas law capital murder defendants sentenced to life imprisonment are not ineligible for parole. Justice O'Connor, in her concurring opinion, strongly suggests that the due process principle extends only when parole is not an available alternative. [6] Several jurisdictions have already interpreted Simmons to be limited in this fashion. [7] In the instant case, without any analysis, the plurality does *867 too. Op. at ___. On that basis the plurality concludes that the holding in Simmons has no application in Texas. In my view, however, the principle of Simmons transcends its factual context, and does apply in Texas in some instances.
A.
Future dangerousness is not automatically at issue in South Carolina as it is in Texas. In Simmons , however, the prosecutor had expressly invited the jury in his closing argument to factor the defendant's future dangerousness into its decision whether to assess life or death. Id., ___ U.S. at ___, 114 S.Ct. at 2190-2191, 129 L.Ed.2d at 139. [8] The defendant had proffered evidence that he was only a threat to elderly women, a class of people he would not encounter in the penitentiary. Id., ___ U.S. at ___, 114 S.Ct. at 2191, 129 L.Ed.2d at 139. Out of the jury's presence he presented public-opinion evidence that jury-eligible adults in South Carolina largely assumed a life-sentenced murderer would be paroled at some point. Id., ___ U.S. at ___, 114 S.Ct. at 2191, 129 L.Ed.2d at 140. Nevertheless, Simmons' counsel was prevented from voir diring the jury panel on the issue of parole eligibility. Arguing that the public misperception about parole eligibility needed to be dispelled in his cause, Simmons requested jury instructions that would inform the jury of the law. The trial court refused, instructing the jury instead that it should disregard parole and parole eligibility, and that it should construe "life imprisonment" according to its ordinary meaning. Id., ___ U.S. at ___, 114 S.Ct. at 2192, 129 L.Ed.2d at 140.
In holding that the trial court violated due process in failing to inform the jury of the unavailability of parole, the plurality in Simmons observed:
"In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole. The trial court's refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant's future dangerousness in its argument to the jury, cannot be reconciled with our well established precedents interpreting the Due Process Clause."
Id., ___ U.S. at ___, 114 S.Ct. at 2194, 129 L.Ed.2d at 142-43. Accordingly, the plurality held that denying the jury "a straight answer" regarding availability of parole impaired Simmons' ability to "deny or explain" the State's showing of his future dangerousness, and thereby violated his right to due process of law. Id., ___ U.S. at ___, 114 S.Ct. at 2195 & 2196, 129 L.Ed.2d at 144 & 145-46, quoting Gardner v. Florida, 430 U.S. 349, at 362 , 97 S.Ct. 1197, at 1207 , 51 L.Ed.2d 393, at 404-405 (1977).
Simmons thus stands for the proposition that whenever future dangerousness is in issue in a capital punishment proceeding "the actual duration of the defendant's prison sentence is indisputably relevant." Id., ___ U.S. at ___, 114 S.Ct. at 2194, 129 L.Ed.2d at 142. When parole is not an option at all, that fact is relevant in the sense that it tells the jurors where the capital defendant will spend the rest of his natural life, so that they may confine their deliberations on future dangerousness to the risk he poses to prison society. It tends to make less probable that he will be a continuing threat at least to the general public. Moreover, to the extent the capital *868 defendant can show, as could Simmons himself, that he does not pose a threat even to the inmate population, unavailability of parole tends to make less probable that he will be a threat to any facet of society at all.
This logic is not limited to the no-parole situation. On the contrary, it extends to any evidence of "the actual duration of the defendant's prison sentence." How much of his life the capital defendant will spend in prison is relevant to the future dangerousness determination in exactly the same way as the fact that he will spend the rest of his life there. It informs the jurors where the capital defendant will be so that they can tell what "society" may or may not be at risk. See Part IIC, ante. If you add other evidence that by the time the capital defendant becomes eligible for parole he will not likely pose a threat to any facet of society, then the fact that he must serve a specific minimum period of time in prison before he can be paroled takes on practically the same significance as no parole eligibility at all. It tends to show he will never be a threat to the public at large. Therefore, if failing to inform the jury of the "indisputably relevant" fact that a capital defendant can never be paroled violates due process, as the plurality opinion in Simmons establishes, then so, at least under some circumstances, does failing to inform the jury of the minimum parole eligibility date. [9] We should so hold.
B.
The plurality mentions California v. Ramos, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983), almost in passing. Op. at 849. The suggestion seems to be that when a state makes parole available to a capital defendant sentenced to life imprisonment, the Supreme Court will not interfere with the state's decision whether to inform juries of the parole law. Admittedly, in Simmons the plurality itself did observe:
"that Ramos stands for the broad proposition that we generally will defer to a State's determination as to what a jury should and should not be told about sentencing. In a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole. States reasonably may conclude that truthful information regarding the availability of commutation, pardon, and the like, should be kept from the jury in order to provide `greater protection in [the States'] criminal justice system than the Federal Constitution requires.' [ California v. Ramos ], 463 U.S., at 1014 , 103 S.Ct., at 3460 ."
As I read them, however, neither Ramos itself, nor the plurality's discussion of Ramos in Simmons , justifies failing to inform a capital jury of minimum parole eligibility.
In the first place, we have never "reasonably" concluded in Texas that information about parole eligibility should be kept from capital juries, at least not in order to "provide greater protection than the Federal Constitution requires." We have basically assumed that jury consideration of parole in general would violate separation of powers, even in a capital case, and is therefore prohibited. That assumption does not "protect" a capital defendant at all, much less does it provide greater protection than the Federal Constitution. Quite the contrary, it insulates the jury from information that is "indisputably relevant" to rebut the State's evidence *869 on the issue of future dangerousness. In any event, the assumption itself is incorrect. It is precisely because information about minimum parole eligibility is relevant to the future dangerousness determination that giving it to the jury does not violate separation of powers. See Part IIC, ante. [10] We have yet to offer any principled reason for keeping information about parole from a capital sentencing jury in Texas.
Second, and more importantly, today's plurality cannot fairly plead "speculativeness" to argue that informing a capital jury about minimum parole eligibility does not fall within the Simmons due process requirement. There is nothing remotely speculative about the fact that, if sentenced to life imprisonment, appellant would have to serve a minimum of fifteen years before becoming eligible for parole. See former Article 42.18, § 8(b), supra. Nor is there anything speculative about "how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty." Jurors in Texas do not decide whether to impose a life or death sentence. They answer special issues. That we can even say that minimum parole eligibility is "indisputably relevant" to the jury's determination of the future dangerousness issue means we know precisely "how" the jurors will consider that fact. They consider it to the extent, and only to the extent, that it militates either for or against a finding of future dangerousness. When it militates against a finding of future dangerousness, Simmons dictates that the jury hear it, Ramos notwithstanding. [11]
C.
Finally, the plurality maintains that other procedural safeguards during the course of trial prevented the parties from placing parole eligibility in issue, and therefore appellant did not need to present the fact of minimum parole eligibility to "deny or explain" anything. Op at 850-853. Texas law precludes either party from broaching the subject of parole during voir dire, except to ascertain whether veniremen can follow instructions requiring jurors to ignore parole. It also prevents prosecutors from arguing expressly that the jury should answer special issues affirmatively in order to obviate the possibility a capital defendant may ever be paroled. Under Texas law the jury is positively instructed, as in this case, to disregard parole in its deliberations. Protections against jury misconduct guarantee that if his jury nevertheless does consider parole, the capital defendant may obtain a new trial. These legal safeguards, the plurality assures us, are sufficient to keep eligibility for parole from entering into the jury's deliberations, and nothing is injected into the sentencer's field of vision that the capital defendant is prevented from addressing. The plurality relies in large measure upon Gardner v. Florida, supra.
The plurality fails to acknowledge that the principle of due process articulated in Gardner was later expanded in Skipper v. South Carolina, 476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986), and in Simmons itself. It is true that the holding in Gardner itself extends no further than its facts. In Gardner the sentencing judge rejected an advisory jury's recommendation of life imprisonment in favor of a sentence of death based in part upon a confidential presentence report that the defendant was given no chance to review. A plurality of the Supreme Court held that due process was violated because the defendant was afforded no chance to *870 "deny or explain" the contents of the report, and hence no chance to participate meaningfully in the adversarial process by which Florida decides whether to impose a life or death sentence. Id., 430 U.S. at 360 & 362, 97 S.Ct. at 1206 & 1207, 51 L.Ed.2d at 403 & 404. But the principle in Gardner has since been extended beyond its factual context. In Skipper v. South Carolina, supra, the majority observed:
"Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only [the Eighth Amendment] that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' Gardner v. Florida, [supra]."
Id., 476 U.S. at 5, n. 1 , 106 S.Ct. at 1671, n. 1 , 90 L.Ed.2d at 7, n. 1 (emphasis added).
On the strength of this passage from Skipper, the plurality in Simmons concluded that any time future dangerousness is put in issue, the defendant must be allowed to rebut with information that he can never be paroled, so that whatever risk he poses is limited to the prison population. ___ U.S. at ___, 114 S.Ct. at 2194, 2194-2195 & n. 5, 129 L.Ed.2d at 142-143, 143-144 & n. 5. [12] Justice O'Connor's concurring opinion agreed with the plurality that simply placing future dangerousness in issue is enough to trigger the due process requirement. Id., ___ U.S. at ___, 114 S.Ct. at 2200-2201, 129 L.Ed.2d at 150-151. One of Justice Scalia's principal complaints in dissent was that seven members of the Court had unduly imposed "a rule at least as sweeping as this: that the Due Process Clause overrides state law limiting the admissibility of information concerning parole whenever the prosecution argues future dangerousness." Id., ___ U.S. at ___, 114 S.Ct. at 2203, 129 L.Ed.2d at 154 (emphasis in the original). In Texas, of course, the prosecution always argues future dangerousness. If it is correct, therefore, that the Simmons principle extends also to informing the jury in some cases about minimum parole eligibility, see Part IIIA, ante, the plurality cannot escape that principle by reverting to the earlier decision in Gardner . For under Simmons , minimum parole eligibility may serve, together with other evidence, to "deny or explain" the State's case for future dangerousness in every capital punishment proceeding in Texas.
Moreover, it does not satisfy Simmons to implement state procedures designed to insulate the jury entirely from any consideration of parole. Due process requires that a capital defendant be afforded "a meaningful opportunity to present a complete defense." Id., ___ U.S. at ___, 114 S.Ct. at 2194, 129 L.Ed.2d at 143, quoting Crane v. Kentucky, 476 U.S. 683, at 690 , 106 S.Ct. 2142, at 2146 , 90 L.Ed.2d 636, at 645 (1986). Preventing either side from broaching the subject of minimum parole eligibility when that fact is "indisputably relevant" to rebut the State's evidence of future dangerousness denies a capital defendant that opportunity. Simmons, supra, ___ U.S. at ___, 114 S.Ct. at 2198, 129 L.Ed.2d at 147. [13] This denial might be constitutionally acceptable if it *871 somehow served to enhance the overall fairness of the proceeding or to heighten the reliability of the jury's resolution of the special issues. See Crane v. Kentucky, supra, 476 U.S. at 690 , 106 S.Ct. at 2146 , 90 L.Ed.2d at 644 . But as I have labored to show in the balance of this opinion, it does not. The plurality errs to conclude that when procedural steps are taken to prevent a capital jury from considering parole for any purpose, the defendant's due process rights as defined by Simmons have been preserved.
IV.
Turning to the instant cause, I am compelled to conclude that appellant was denied due process under Simmons . Dr. Fason testified that appellant was a sociopath, and that the likelihood of recidivism for sociopaths by the time they reach their thirties is low, and by the age of forty, even lower. Compare Matson v. State, supra. Had it been informed that by law appellant was not even eligible for parole on a life sentence until serving fifteen years, by which time he would be well into his upper thirties, the jury would have been justified in concluding that his threat to the public at large was insignificant. [14] Without that information, the jury was probably left wondering exactly what the relevance of Dr. Fason's testimony was. See n. 9, ante. Indeed, without that information, but given Dr. Fason's testimony, the jury might have been tempted to disregard the trial court's instruction not to consider parole for any purpose, and engaged in the speculative enterprise of trying to guess when appellant would become eligible for parole. Surely it is preferable to inform capital jurors accurately on the law of parole eligibility.
For the reasons I have given in Part III, ante, I conclude that due process requires that a capital defendant be allowed, on request, to inform the jury on the law of minimum parole eligibility, at least whenever there is other evidence, as in this case, to indicate he may not constitute a continuing threat to society by the time he is parole-eligible. Nothing in the law of Texas should be construed to stand in the way. Part II, ante. Accordingly, the trial court erred in failing to allow appellant to inform the jury as he requested.
The Supreme Court did not indicate whether Simmons error is subject to a constitutional harmless error analysis. See Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). The Simmons plurality simply reversed the cause and remanded it to South Carolina for unspecified further proceedings. Simmons, supra, ___ U.S. at ___, 114 S.Ct. at 2198, 129 L.Ed.2d at 147. Assuming Simmons error is subject to a harm analysis, I cannot say to a level of confidence beyond a reasonable doubt that it was harmless in this case. Had the jury in appellant's trial been informed that he could not become eligible for parole for fifteen years, they might well have considered that information, together with Dr. Fason's testimony, sufficient to justify a negative answer to the special issue whether he would commit criminal acts of violence that would constitute a continuing threat to society.
Accordingly, I would vacate the trial court's judgment in this cause and remand the cause for a new punishment proceeding. [15] *872 Because the plurality does not, I respectfully dissent. [16]
OVERSTREET, J., joins this opinion.
MALONEY, Judge, dissenting.
In his eleventh point of error, appellant claims that the trial court erred in refusing his jury instruction on the statutory minimum period of time a capital defendant sentenced to life must serve before becoming eligible for parole in violation of the cruel and unusual punishment provision of the Eighth and Fourteenth Amendments to the United States Constitution. Appellant argues that in considering the special issue on future dangerousness, [1] the jury should have been instructed that if appellant was given a life sentence, he would not be eligible for parole for a period of 15 years. [2] Appellant objected to the trial court's punishment instruction admonishing the jury that it could not consider the minimum time appellant would have to serve before becoming eligible for parole. [3] Because the plurality holds that the trial judge's refusal of appellant's instruction did not violate the Eighth and Fourteenth Amendments, I dissent.
I. Relevant Evidence and Discussion
During the punishment phase, Dr. Fason, a psychiatrist, testified on appellant's behalf *873 that he had diagnosed appellant as suffering from "antisocial reaction." He explained that antisocial reaction is a sociopathic personality disorder characterized by "rebelliousness against the rules of society, difficulties in conforming to common social standard and self-destructiveness and behavior patterns."
Dr. Fason stated that appellant does not have the normal types of "drive controls" that people use to function in this society. He testified that appellant lacks the "drive controls" of shame, guilt, and concern for consequences; instead appellant maintains the attitude "Fuck it, I don't care." Dr. Fason offered his opinion that appellant "is not the kind of individual that has been pondering very much of anything very carefully since he decided that he didn't care, which was a long, long time ago.... [T]hat's why he's always in trouble."
When asked about the prognosis of individuals diagnosed with antisocial reaction, Dr. Fason replied:
[Y]ou see alot [sic] of people in their twenties with this diagnosis. Anyone in the criminal justice system who has been here a while [sic] sees an awful lot of people who are 18 to 29 that would fall into that category. When people get past the age of 30, you don't see that many in the criminal justice system. And past age 40 you rarely ever see someone with this diagnosis past the age of 40.
* * * * * *
Something happens to affect those individuals as they get into their thirties.... They get into their late twenties or early thirties or sometimes mid-thirties and they start realizing they do care and telling themselves they don't care doesn't work anymore. And when it doesn't work anymore they have to start changing their whole life-style [sic].
Dr. Fason agreed with counsel for appellant that there is a diminishing number of individuals in the criminal justice system with psychopathic or personality disorders from age forty on. [4] He later agreed with the trial court that persons suffering from antisocial reaction are much less likely to engage in crimes of violence once they reach the age of forty. On redirect, Dr. Fason observed that "there may be circumstances that arise after [a] person [convicted of capital murder] is incarcerated for life in the penitentiary that may remove that potential threat...." He agreed with appellant's statement that the length of time a person is locked up is a factor in determining whether a person is a danger to the community.
Appellant argues that in order to give mitigating effect to Dr. Fason's testimony, the jury should have been instructed on the minimum amount of time appellant would have to serve before becoming eligible for parole. During an extensive discussion with counsel outside the presence of the jury, the trial court noted that in the absence of evidence like Dr. Fason's, a jury could likely follow instructions not to consider parole, how long a defendant would be required to serve, or action by the Board of Pardons and Parole. However, the court stated, "By throwing evidence in like Mr. Parnham is suggesting [Dr. Fason's testimony], that might sort of pull the switch and cause them to talk about and consider those things." Later in the discussion, the trial court suggested that juror misunderstanding could result:
[Y]ou may have these people sitting here thinking he's going to spend life up there [in prison] and be up there for life. I don't know. But then somebody may say he would be on the streets in 15 years, he will be back out there for shorter than 15 years so maybe we should just go ahead and answer these issues yes. And that may be inappropriate.... [P]ractically every juror talks about the leniency of Texas laws dealing with parole. And it's a very troublesome area.
* * * * * *
I obviously think they [the jurors] are going to read between the lines in this *874 instruction and [are] going to understand that this instruction [not to consider the action of the Board of Pardons and Parole] wouldn't be there ... [unless] Mr. Smith will at some time in his lifetime, if he gets a life sentence, will be eligible for some form of parole.
During punishment deliberations, the jury sent out a note requesting Dr. Fason's testimony.
II. Plurality Opinion
Appellant makes two important distinctions which the plurality fails to appreciate in its cursory, paragraph-long discussion of his eleventh point of error. Smith v. State, 898 S.W.2d at 853-854 (Tex.Crim.App. Mar. 8, 1995). First, while appellant concedes that when he would likely be paroled is not a proper consideration for the jury when deliberating punishment, he argues that the earliest date upon which he would become eligible for parole was necessary for the jury to give mitigating effect to Dr. Fason's testimony. In other words, appellant's instruction does not invite jurors to speculate about when the Board of Pardons and Paroles might release him on parole in violation of Article II, § 1 of the Texas Constitution. Rather, appellant seeks to inform jurors that if he is sentenced to life imprisonment he must serve a fixed, statutory minimal length of that sentence before even becoming eligible for parole. [5]
The plurality maintains that this contention was raised and rejected in Elliott v. State, 858 S.W.2d 478, 489-90 (Tex.Crim.App. 1989). Smith , at 853. Our opinion in Elliott fails to specify what instruction was requested; this Court merely refers to Elliott's "requested instruction on the Texas parole laws." Elliott, 858 S.W.2d at 489 . Accordingly, Elliott is not dispositive of the issue at hand.
Second, appellant does not argue that his requested instruction is mitigating evidence in and of itself, rather he argues that the instruction is necessary for the jury to "give effect" to Dr. Fason's testimony. The plurality's assertion that "the concept of parole eligibility `bears no relationship to the nature of the offense or character of the offender,'" Smith , at 853 ( quoting Andrade v. State, 700 S.W.2d 585, 590 (Tex.Crim.App.1985) (Teague, J., concurring)), is misplaced and illustrates its misunderstanding of appellant's contention. See also id., at 853 n. 25. Parole eligibility is certainly not inherently mitigating evidence. However, it makes little sense to allow the jury to hear the testimony of Dr. Fason, which this Court held to be mitigating in Matson v. State, 819 S.W.2d 839 (Tex.Crim.App.1991), without allowing the jury to meaningfully consider and give effect to his testimony.
The trial court's refusal of appellant's minimum incarceration period instruction violated appellant's rights under the Eighth Amendment, applicable to the states through the Fourteenth Amendment, [6] particularly in light of our decision in Matson, 819 S.W.2d 839 , *875 established Eighth Amendment death penalty jurisprudence, and the Supreme Court's decision in Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994). Due to the likelihood of juror misunderstanding regarding the meaning of "life imprisonment" and "society," and jurors' inability to give effect to relevant mitigating evidence of decreased recidivism and propensity for violence over time, the trial court unconstitutionally denied appellant's minimum incarceration instruction. Further, this conclusion is consistent with the "truth in sentencing" policy of the State of Texas.
Appellant's requested instruction is not mitigating evidence in and of itself; rather, it is necessary to allow jurors to give effect to appellant's mitigating evidence of decreasing rates of recidivism and propensity for violence. Accordingly, a defendant may obtain relief in situations where:
1. Defendant has introduced evidence during the punishment phase of decreasing recidivism rates and propensity for violence over time;
2. Defendant has requested and the trial court has denied an instruction informing the jury of the statutory minimum number of years a defendant sentenced to "life imprisonment" would serve before becoming eligible for parole;
3. Defendant has claimed that the trial court's denial of the instruction violated his rights under the Eighth Amendment. [7]
III. Eighth Amendment
The United States Supreme Court has held that in capital cases "the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976). The premise of the Woodson Court's conclusion was that the penalty of death is qualitatively different from other penalties; this difference mandates a greater or heightened degree of reliability when a sentence of death is imposed. Id. at 305 , 96 S.Ct. at 2991-92 . In Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the Supreme Court held that the Eighth and Fourteenth Amendments require that the sentencer not be statutorily precluded from considering any aspect of a defendant's character or record or any of the circumstances of the offense that the defendant may offer as mitigating. The Ohio death penalty statute at issue provided that once defendants were found guilty of murder with at least one of seven specified aggravating circumstances, sentencers were required to impose the death penalty once they determined that the victim did not induce or facilitate the offense, that the defendant did not act under duress or coercion, and that the offense was not primarily the product of the defendant's mental deficiency. The Court held that the limited range of mitigating circumstances that the sentencer could consider under the Ohio statute was incompatible with the Eighth and Fourteenth Amendments. Id. at 607-08 , 98 S.Ct. at 2966-67 . The Lockett Court defined as "mitigating" any factor that might serve "as a basis for a sentence less than death." Id. at 604 , 98 S.Ct. at 2965 .
Applying the rule in Lockett , the Supreme Court later held that just as a state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113-15 , 102 S.Ct. 869, 876-77 , 71 L.Ed.2d 1 (1982). Citing Lockett and Eddings , the Supreme Court in Skipper v. South Carolina, 476 U.S. *876 1, 3-4, 106 S.Ct. 1669, 1670-71 , 90 L.Ed.2d 1 (1986), held that the exclusion of evidence of defendant's good behavior in prison during the seven months he spent in jail awaiting trial deprived him of his right to place before the sentencer relevant evidence in mitigation of punishment.
The Supreme Court has also addressed the Texas capital punishment scheme, most notably in Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976), Franklin v. Lynaugh, 487 U.S. 164 , 108 S.Ct. 2320 , 101 L.Ed.2d 155 (1988), and Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). In Jurek, 428 U.S. at 262 , 96 S.Ct. at 2951-52, the Supreme Court affirmed the decision of this Court rejecting an Eighth Amendment challenge to the constitutionality of the Texas death penalty scheme. The Supreme Court held that the Texas scheme withstood constitutional challenge because it authorized the defense to bring before the jury "whatever mitigating circumstances relating to the individual defendant [that] can be adduced...." Id. at 278 , 96 S.Ct. at 2959. The Jurek Court emphasized that the jury "must be allowed to consider on the basis of all relevant evidence not only why a death sentence would be imposed, but also why it should not be imposed." Id. at 271 , 96 S.Ct. at 2956.
In Franklin, 487 U.S. at 185 , 108 S.Ct. at 2333 (O'Connor, J., concurring), Justice O'Connor's concurring opinion recognized that the right to have the sentencer consider and weigh mitigating evidence would be "meaningless" unless the jury was also permitted to "give effect" to that evidence. Consistent with her concurrence in Franklin, Justice O'Connor's majority opinion in Penry, 492 U.S. at 318 , 109 S.Ct. at 2946-47 , held that the Texas scheme did not provide the jury with a vehicle to give effect to the mitigating evidence of Penry's mental retardation and disadvantaged background:
[I]t was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant's background or character or to the circumstances of the offense that mitigates against imposing the death penalty.
Id. at 318, 109 S.Ct. at 2946-47. Thus, not only must a Texas jury be able to consider mitigating evidence, but the jury must be provided with a vehicle to give effect to that evidence.
A. Matson v. State
This Court addressed the issue of mitigating evidence in Matson, 819 S.W.2d at 850-51 , in which the defendant challenged the trial court's refusal to allow the jury to hear expert testimony on the subject of decreasing recidivism and propensity for violence over time which the defendant argued was relevant to whether there was a substantial probability that he would commit criminal acts of violence in the future. Relying on Lockett , Eddings , Jurek, and Skipper, Presiding Judge McCormick's majority opinion held that the trial court abused its discretion in preventing the jury from hearing this relevant mitigating evidence:
Clearly then, for the Texas death penalty statutes to meet constitutional muster, the sentencing authority in a capital case must be allowed to consider and give effect to all relevant mitigating evidence.
Matson, 819 S.W.2d at 851 .
Notably, Matson did not raise and this Court did not address whether a minimum incarceration instruction was required for the jury to give effect to testimony concerning decreasing recidivism and propensity for violence over time; we merely held that preventing the defendant from offering such evidence violated the Eighth Amendment. See also Jackson v. State, 822 S.W.2d 18, 25 (Tex.Crim.App.1990), cert. denied, ___ U.S. ___, 113 S.Ct. 3034 , 125 L.Ed.2d 722 (1993).
B. Simmons v. South Carolina
In Simmons , ___ U.S. at ___, 114 S.Ct. at 2190, a plurality of the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2432542. Public record. Not legal advice.