The opinion
CARR, Justice
concurring.
I concur with the majority opinion.
The majority opinion observes that this Court has previously recognized the significance of the additional instruction given in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). I write to point out the significance.
The instruction mandated by TEX.CODE CRIM.PROC.ANN. art. 37.37, § 4(a) (Vernon Supp.1989) and given in the instant case states:
Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignment, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the Defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the Defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-third of the sentence imposed or 20 years, whichever is less, without consideration of any good conduct time he may earn. If the Defendant is sentenced to a term of less than six years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this Defendant if he is sentenced to a term of imprisonment, because the application of these laws will *929 depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular Defendant. You are not to consider the manner in which the parole law may be applied to this particular Defendant.
In Olivarez v. State, 756 S.W.2d 113 (Tex.App.—San Antonio 1988, no pet.), this Court held that the statutory instruction alone is not curative. Id. at 114-15 . On the contrary, we held that the statutory instruction results in the rebuttable presumption that the jury considered the existence of parole law and good conduct time. Id. at 114 . Experience teaches the likelihood they will is great. Rose v. State, supra at 536. Our holding in Olivarez v. State has not been overruled by this Court en banc, nor has it been declared an incorrect statement of law by the Court of Criminal Appeals.
In Rose v. State, the trial court further instructed the jury to totally disregard parole, and the trial court flatly told the jury that parole was not their concern. Rose v. State, supra at 532, 533. The Court of Criminal Appeals presumed that the jury followed the instructions to completely disregard parole. Id. at 554. This rebuttable presumption was supported by the heinous facts and the defendant’s criminal record. Id. at 554. Therefore, the curative instruction to totally disregard parole was the prime reason for the affirmance by the Court of Criminal Appeals. Olivarez v. State, supra at 114.
Once this Court finds error, we must reverse unless we can determine beyond a reasonable doubt that the error made no contribution to the conviction or, as in the instant case, punishment. TEX.R.APP.P. 81(b)(2). If neither appellant nor the State shows beyond a reasonable doubt that the error made no contribution to conviction or punishment, we should reverse. It logically follows that the burden is on the State to avoid reversal by showing beyond a reasonable doubt that the error in fact did not contribute to the results of the trial.
Here, the punishment assessed by the jury was fifteen years, being thirteen years above the minimum and only five years below the maximum allowed.
Based on the presumption, absent a curative instruction, that the jury considered the existence of parole and good conduct time as explained in the first three paragraphs of the pertinent instruction, and assessment of punishment at thirteen years above the minimum, I agree that it cannot be determined beyond a reasonable doubt that the error made no contribution to the punishment.