Smith v. State

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.

⅜ ⅜ ⅜ ⅝ ⅜ ⅜

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]raetically every ju-

ror talks about the leniency of Texas laws dealing with parole. And it’s a very troublesome area.

⅜ ⅜ ⅝ ⅜ ⅝ ⅜

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 5.W.2d 585, 590 (Tex.Crim.App.1985) (Teag-ue, 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 Pen-ry, 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 Penny’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 Supreme Court held that when a defendant’s future dangerousness is at issue and the defendant is ineligi *877 ble for parole, due process requires that the jury assessing punishment be told that the defendant is parole ineligible. Justice Souter, joined by Justice Stevens, wrote separately to explain that the Eighth Amendment also compelled the decision of the plurality. 8 Id. at -, 114 S.Ct. at 2198 (Souter, J., concurring). Concerned that the jury might not understand the meaning of “life imprisonment,” Simmons requested a jury instruction regarding his parole ineligibility. Id. at -, 114 S.Ct. at 2191 n. 2. The plurality held that “[i]n assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant.” Id. at -, 114 S.Ct. at 2194 (emphasis added).

At issue in the instant case is the applicability of Simmons to the Texas capital sen-fencing scheme. Because Texas provides for a statutory “future dangerousness” issue in every capital case, the prosecution will always argue that the defendant will pose a future danger to society if not executed by the State. Unlike South Carolina, in Texas future dangerousness is a threshold issue in securing a death sentence; that is, if the jury does not answer the second special issue in the affirmative, a life sentence will automatically be imposed.

While Simmons involved a defendant who was not eligible for parole, the Supreme Court’s rationale logically extends to defendants in Texas who are statutorily ineligible for parole for a substantial period of time. 9 The reasoning of the Simmons Court is based in large part on the potential for juror *879 misunderstanding and misperception regarding parole eligibility:

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. This grievous misperception was encouraged by the trial court’s refusal to provide the jury with accurate information regarding petitioner’s parole ineligibility....

Id. at-, 114 S.Ct. at 2193 . 10

The potential for juror misunderstanding and misperception regarding parole and the true meaning of “life imprisonment” is likely in Texas, where jurors must consider “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim.Proe.Ann. art. 87.071 (emphasis added). First, “society” does not have a statutory definition under the Texas scheme, and jurors are given no guidance in this regard. Second, typical jury instructions at punishment may exacerbate juror misunderstanding and actually invite speculation about parole.

While this Court has held on appeal that “society” includes prison society and free society, jurors are not similarly informed. See, e.g., Muniz v. State, 851 S.W.2d 238, 250 (Tex.Crim.App.1993), cert. denied, — U.S. -, 114 S.Ct. 116 , 126 L.Ed.2d 82 (1994); Jones, 843 S.W.2d at 495; Boyd v. State, 811 S.W.2d 105 , 118 n. 12 (Tex.Crim.App.1991), cert. denied, 502 U.S. 971 , 112 S.Ct. 448 , 116 L.Ed.2d 466 (1991); see also Franklin, 487 U.S. at 179 n. 9, 108 S.Ct. at 2330 n. 9 (“[T]he question of a defendant’s likelihood of injuring others in prison is precisely the question posed by the second Texas Special Issue [future dangerousness].”). Defendants are not entitled to a jury instruction defining “society” because of the presumption that all undefined words in the Texas Code of Criminal Procedure have a commonly understood meaning that jurors know and apply. See Caldwell v. State, 818 S.W.2d 790, 797-98 (Tex.Crim.App.1991), cert. denied, 503 U.S. 990 , 112 S.Ct. 1684 , 118 L.Ed.2d 399 (1992). While we have further held that “society” is not unconstitutionally vague as applied without a definition, e.g., id. at 798-99; Rougeau v. State, 738 S.W.2d 651, 660 (Tex.Crim.App. 1987), cert. denied, 485 U.S. 1029 , 108 S.Ct. 1586 , 99 L.Ed.2d 901 (1988), overruled on other grounds, Harris v. State, 784 S.W.2d 5 (Tex.Crim.App.1989), we have recognized that many jurors are confused about whether it refers to free society, prison society, or society as a whole. See, e.g., Felder v. State, 758 S.W.2d 760, 764 (Tex.Crim.App.1988).

At the time of appellant’s punishment hearing, typical jury instructions in capital cases, and the instructions used in the instant case provided as follows:

You are instructed that if you return a negative finding on any special issue submitted to you, the court shall sentence the defendant to the institutional division of *880 the Texas Department of Criminal Justice for life, (emphasis added).

and:

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. (emphasis added).

These instructions indicate that sentencing the defendant to prison “for life” does not actually mean that the defendant will spend the rest of his life in prison, rather he will be released at some point, once he has “sa-tisf[ied] a sentence of life imprisonment.” Jurors are forced to perform the impossible: They must put the “possibility of parole” completely out of their minds when deciding whether a defendant would pose a continuing threat to society, Felder, 758 S.W.2d at 764 , without presuming “that a defendant sentenced to life will serve the rest of his life in prison.” Boyd, 811 S.W.2d at 121 . How then can the jury decide whether a defendant will pose a continuing threat to society in the future without considering where the defendant will be if not executed? A jury's task is that much more difficult when it is presented with testimony indicating that a defendant’s propensity for violence differs significantly depending on his environment. That is, a defendant’s propensity for violence in a prison setting may be markedly less than his propensity for violence in the free world. Without instructions as to where the defendant will be if given a life sentence or how long he will be incarcerated, a jury’s task may be further complicated by testimony that recidivism rates and propensity for violence tend to decrease with time.

Moreover, instructions telling jurors not to consider the possibility of parole invite speculation about parole. The trial court in Simmons , — U.S. at-, 114 S.Ct. at 2197 , similarly admonished the jury that “you are instructed not to consider parole” and that parole “is not a proper issue for your consideration.” The Supreme Court recognized that the instruction “was confusing and frustrating to the jury” in suggesting that parole was available, but at the same time instructing the jury to be blind to this fact. Although parole was not available to Simmons, but is available to capital defendants in Texas, jurors are no less confused or frustrated. In Texas, while there is not “a single case which arguably supports [the] theory that a potential juror’s “view is supposed to be that a defendant sentenced to life will serve the rest of his life in prison,’ ” Boyd, 811 S.W.2d at 121 , it is presumed that jurors do not consider parole in relation to the special issues.

While we ordinarily presume that jurors follow the court’s instructions, see Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App. 1988), “in some circumstances, ‘the risk that the jury will not, or cannot follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’ ” Simmons , — U.S. at -, 114 S.Ct. at 2197 (citations omitted). The limitations of Texas’ capital sentencing scheme cannot be ignored, particularly in light of a recent study of the substantially similar special issues scheme in Oregon, and numerous studies from other states indicating that, despite instructions to the contrary, jurors invariably consider the possibility that the defendant will be released from prison on parole. 11

Without instruction on the applicable parole eligibility law, such speculation is un *881 informed and diminishes the reliability of the sentencing process. While the plurality recognizes that Texas provides some procedural protections in an attempt to minimize juror misunderstanding, these protections do not compel us to disregard the risk that the jury ■will not, or cannot follow instructions.

The plurality, in its discussion of appellant’s ninth point of error, notes three procedural protections, Smith, at-, but overstates their efficacy. First, the plurality asserts that 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. Id., at 852. However, such error is not reversible unless the argument is “extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial.” Franklin v. State, 693 S.W.2d 420, 429 (Tex.Crim.App.1985) (holding closing argument error harmless), cert. denied, 475 U.S. 1031 , 106 S.Ct. 1238 , 89 L.Ed.2d 346 (1986). Second, the plurality states that if a jury considers parole in its deliberations, a defendant may be entitled to a new trial. Smith, at 852. But, the plurality does not acknowledge that in order to obtain relief, a defendant must meet the rigorous standard set out in Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984); see also Buentello v. State, 826 S.W.2d 610, 610-14 (Tex.CrimApp.1992). Third, counsel is permitted to examine prospective jurors about whether they think they are able to follow an instruction forbidding consideration of parole in their deliberations, and counsel may challenge for cause jurors who maintain that they are unable to set aside parole from their consideration. Smith, at 852. Here, the plurality fails to recognize that jurors who think or state that they can obey an instruction may not actually be able to do so. Our discussion in part III.B., swpra, illustrates this point. Additionally, the plurality neglects to note that this Court grants considerable latitude and deference to trial courts regarding jury strikes, thus rendering the decisions of trial courts practically unre-viewable except in extraordinary cases. E.g., Vuong v. State, 830 S.W.2d 929, 943 (Tex. Crim.App.1992) cert. denied, — U.S. -, 113 S.Ct. 595 , 121 L.Ed.2d 533 (1992).

*882 The potential damaging effect of juror speculation may be increased by general, though frequently inaccurate, knowledge of parole law. As the plurality in Simmons noted:

It can hardly be questioned that most juries lack accurate information about the precise meaning of “life imprisonment” as defined by States.... For much of our country’s history, parole was a mainstay of state and federal regimes, and every term (whether a term of life or a term of years) in practice was understood to be shorter than the stated term_ [I]t is impossible to ignore “the reality known to the ‘reasonable juror,’ that, historically, life-term defendants have been eligible for parole.”

Simmons , — U.S. at-, 114 S.Ct. at 2197 (citations omitted). This Court has repeatedly recognized that it is “common knowledge” in Texas that parole is a frequent occurrence. See, e.g., Felder, 758 S.W.2d at 762 ; Sneed, 670 S.W.2d at 264-66 (“[I]t is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole_”). Further, the likelihood that jurors have accurate knowledge of the applicable parole law in a given case is decreased significantly due to the Legislature’s frequent amending of Tex.Code Crim. Proc.Ann. art. 42.18 § 8. The parole law for capital defendants in Texas has changed four times in the past ten years, from a minimum of twenty calendar years in 1985, to fifteen years in 1987, to thirty-five years in 1991, to forty years in 1993. 12

Withholding parole eligibility information from juries fosters their distorted view of the actual effect of the noncapital sentencing alternative, creating a needless and substantial risk that juries will impose the death penalty in an effort to eliminate what is in reality a nonexistent danger of release on parole within a relatively short period of time. In addition, the need for heightened reliability mandates a recognition of a capital defendant’s right to require instructions on the meaning of the legal terms used to describe the sentencing options. As in Simmons :

whenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been “arbitrarily or capriciously” and “wantonly and ... freakishly imposed.”

Simmons , — U.S. at-, 114 S.Ct. at 2198 (Souter, J., concurring) (citations omitted). The Simmons plurality concluded that the State denied Simmons due process in securing a death sentence based in part on his future dangerousness while concealing from the jury the true meaning of its noncapital sentencing alternative. Id. at-, 114 S.Ct. at 2193 . In their concurring opinion, Justices Souter and Stevens observed that the Eighth Amendment’s heightened reliability requirement in capital cases similarly mandates recognition of a capital defendant’s right to require instructions on the meaning of the legal terms used to describe the sentences available. Id. at-, 114 S.Ct. at 2198 (Souter, J., concurring).

C. Matson v. State and Heightened Reliability

Although the plurality in Simmons did not reach the Eighth Amendment issue, 13 it is incorrect to conclude that the Eighth Amendment sanctions concealing from the jury the true meaning of the noncapital sentencing alternative in Texas, where “future dangerousness” is a threshold jury determination in every case and where the Legislature has provided for mandatory, substantial periods of incarceration without the possibility of parole for capital defendants who are not sentenced to death. An Eighth Amendment analysis of the Texas scheme logically follows from this Court’s decision in Matson, 819 *883 S.W.2d 839 (Eighth Amendment basis), and the heightened reliability requirement of Lockett, 438 U.S. at 586 , 98 S.Ct. at 2955 , and Eddings, 455 U.S. at 104 , 102 S.Ct. at 871 , as applied to Texas in Jurek, 428 U.S. at 262 , 96 S.Ct. at 2951-52 , Franklin, 487 U.S. at 164 , 108 S.Ct. at 2321-22, and Penry, 492 U.S. at 302 , 109 S.Ct. at 2937-38 . Additionally, the distinction between the Due Process Clause and the Eighth Amendment is increasingly elusive in death penalty jurisprudence.

This Court has held that the Eighth Amendment requires that capital defendants be allowed to present evidence of the relationship between recidivism and propensity for violence and the length of incarceration and age of the offender. Matson, 819 S.W.2d at 851 . However, it is not enough that jurors hear this relevant mitigating evidence. The right to have the sentencer consider and weigh mitigating evidence is “meaningless” unless the jury is permitted to “give effect” to that evidence. See Franklin, 487 U.S. at 185 , 108 S.Ct. at 2333 (O’Connor, J., concurring); Penry, 492 U.S. at 318 , 109 S.Ct. at 2946-47 . In other words, the Mat-son decision is incomplete: Without a jury instruction indicating the minimum time that the defendant will be incarcerated, jurors cannot “give effect” to Matson evidence {e.g., that a defendant’s propensity for violence is significantly reduced when in a prison environment instead of in the free world, that his propensity for violence will likely decrease over time, or that the likelihood of recidivism decreases with the length of time he is incar-eerated.) Because our holding in Matson is limited to the proposition that recidivism and propensity for violence evidence is relevant and mitigating, it only reaches part of the way toward full realization of a capital defendant’s rights under the Eighth Amendment.

Moreover, appellant’s minimum incarceration instruction is analyzed under the Eighth Amendment instead of the Due Process Clause used by the plurality in Simmons , — U.S. at-, 114 S.Ct. at 2187 , because the Eighth Amendment requirement of heightened reliability provides stronger grounding for the proposition that a capital defendant in Texas has a right to require instructions on “the meaning of the legal terms used” where there is a reasonable likelihood of juror misunderstanding and misperception. Id. at-, 114 S.Ct. at 2198 (Souter, J., concurring). While the Simmons plurality persuasively demonstrated that jurors in general are likely to misunderstand the meaning of “life” imprisonment, id. at -, 114 S.Ct. at 2193 , the discussion above demonstrates that in Texas the potential for misunderstanding and misperception is significant. See supra parts III.B. & C.

Due process and Eighth Amendment principles are interconnected in capital jurisprudence. 14 It is significant that the constitutional basis for the majority and concurrence in Skipper eight years later becomes the basis for the concurrence and plurality, respectively, in Simmons. In Skipper, 476 U.S. at 1 , 106 S.Ct. at 1669 , a majority of the Court decided that the exclusion of evidence *884 of a defendant’s good behavior in prison deprived him of his Eighth Amendment right to place before the sentencer relevant evidence in mitigation of punishment. Justice Powell's concurrence reached the same result based on the Due Process Clause. Skipper, 476 U.S. at 9 , 106 S.Ct. at 1673-74 . While the Simmons’ plurality holding that the defendant was improperly deprived of a jury instruction on parole was based on due process principles, one of the concurrences reached the same result based on Eighth Amendment principles. Id. at 1 , 114 S.Ct. at 2198 (Souter, J., concurring).

Moreover, the Skipper plurality highlighted the relatedness of the two constitutional provisions:

[Wjhere the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant he 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.”

Skipper, 476 U.S. at 5 n. 1, 106 S.Ct. at 1671 n. 1 (quoting Gardner v. Florida, 430 U.S. 349, 352 , 97 S.Ct. 1197, 1201-02 , 51 L.Ed.2d 393 (1977)) (emphasis added). Justice Sealia, in his dissent in Simmons , also underscores the interconnectedness of the Due Process Clause and the Eighth Amendment:

[The plurality] adds to our insistence that State courts admit “all relevant mitigating evidence,” see, e.g., Eddings v. Oklahoma, 455 U.S., 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 , (1982); Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), a requirement that they adhere to distinctive rules, more demanding than what the Due Process Clause normally requires, for admitting evidence of other sorts — Federal Rules of Death Penalty Evidence, so to speak....

Simmons , — U.S. at-, 114 S.Ct. at 2205 (Sealia, J., dissenting). In light of this Court’s decision in Matson and the heightened reliability requirement, most recently discussed in Justices Souter’s and Stevens’ concurrence in Simmons , the Eighth Amendment is violated when a capital defendant presents evidence of decreasing rates of recidivism and propensity for violence over time, but is prevented from informing the jury of the true meaning of the noncapital sentencing alternative.

The State points out that this Court has held that parole is not a proper consideration for jury deliberation in the punishment phase of capital murder trials, a holding purportedly grounded in principles of separation of powers. E.g., Jones, 843 S.W.2d at 495. That is, juror speculation about when the Board of Pardon and Paroles might release a convict on parole would encroach upon a manifestly executive function, in violation of Article II, § 1 of the Texas Constitution. However, as Judge Clinton persuasively argues in his dissenting opinion, informing jurors in a capital case that a defendant sentenced to life imprisonment must serve some minimal length of that sentence before becoming eligible for parole does not implicate principles of separation of powers. See Smith, at 845-847 (Clinton, J., dissenting). Indeed, because the Legislature has provided for a minimum period of time which a defendant will serve before becoming parole eligible, 15 the Board of Pardon and Paroles does not have “jurisdiction” over the defendant until that time has run.

IV. Truth in Sentencing

This conclusion is also consistent with the “truth in sentencing” policy of the State of Texas. In its “Recommendations to the 73rd Legislature,” the Texas Punishment Standards Commission recommended, based on the notion of “truth in sentencing,” that juries be informed of the amount of time offenders will be required to spend in prison. The Commission reasoned:

The public is fed up with illusory long sentences handed down to offenders and *885 with the ability of the parole board to circumvent the wishes of judges and juries by setting offenders free long before the scheduled termination of their sentences. The public is entitled to more accurate information about the way our system works, and to a system that is not complicated by elaborate parole and good conduct provisions.... Such a system gives true sentencing authority back to the appropriate and accountable entity, judges and juries, and removes the discretion to decide how long someone will serve from the considerably less accountable parole board. Everyone involved — including the victim, the jury, and the offender — knows exactly how long the offender will serve before the offender is back on the streets. Truth in sentencing is the only way to reestablish the integrity of our criminal justice system in Texas and to restore the public’s faith in that system.

Texas Punishment Standards Commission, Recommendations to the 73rd Legislature 29 (Dec. 16, 1992). The report did not distinguish between noncapital and capital cases regarding the information that sentencers should have. Although the State now opposes informing juries of the parole laws in capital cases, the Texas District and County Attorneys Association’s “Sentencing Policy Statement” outlined a contradictory position:

TDCAA [Texas District and County Attorneys Association] wholeheartedly agrees that the public deserves, and justice demands, truth in sentencing, which should include:

-immediately telling the public the actual lengths of sentences now being served by various offenders;

-modifying current law to tell the public at the time of sentencing whether, when, and under what circumstances felons’ sentences may or will be modified or terminated;

⅜ ⅜ ⅜ ⅜ ⅜ ⅝

-modifying the current law to enable and require courts and prosecutors to tell victims, juries, and the public the truth about the effect on sentence lengths of concurrent sentencing and back-time credits.

Texas District and County Attorneys Association, “Sentencing Policy Statement,” printed in Texas Punishment Standards Commission, Summit Report: A Report of the Proceedings of the Texas Punishment Standard Commission’s Criminal Justice Summit (Aug. 13-15, 1992).

Consistent with the “truth in sentencing” policy, the voters of Texas approved an amendment to Article IV, § 11 of the Texas Constitution in 1989 that 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.” Acts 1989, 71st Leg., S.J.R. 4, § 1, approved Nov. 7, 1989. The Texas Legislature simultaneously enacted Texas Code of Criminal Procedure article 37.07, § 4, which mandates that the court inform the jury in noncapital felony eases of the applicable good conduct time, actual time defendant will serve, and parole eligibility. Acts 1989, 71st Leg, ch. 103, § 1.

“Truth in sentencing” is no less compelling in capital cases than in noncapital cases. Indeed, because the penalty of death is qualitatively different from other penalties, this difference mandates a greater degree of reliability when a sentence of death is imposed. See, e.g., Woodson, 428 U.S. at 304 , 96 S.Ct. at 2991 ; Eddings, 455 U.S. at 113-15 , 102 S.Ct. at 876-77 ; Lockett, 438 U.S. at 604 , 98 S.Ct. at 2964-65 . Further, the Eighth Amendment prohibits procedures that needlessly undermine the reliability of the capital sentencing process. E.g., Caldwell v. Mississippi 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985); Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980).

V. Conclusion

Appellant correctly and forcibly argues the trial court’s refusal to allow the jury instruc *886 tion regarding the statutory minimum incarceration period effectively prevented the jury from giving mitigating weight to the testimony of Dr. Fason at the punishment stage of the trial. While this Court has held that appellant cannot be prevented from presenting this testimony to the jury, Matson, 819 S.W.2d at 850-51 , without instruction on the applicable parole eligibility law, appellant’s Eighth Amendment rights cannot be fully realized. The testimony of Dr. Fason indicated that time and appellant’s environment were important factors in predicting future dangerousness. Absent an instruction on the statutory minimum period of time that appellant would be in a prison environment, the jury could not “give effect” to his testimony.

Due to the likelihood of juror misunderstanding regarding the meaning of “life imprisonment” and “society,” 16 and jurors’ inability to “give effect” to relevant mitigating evidence of decreased recidivism and violence over time, the trial court unconstitutionally denied appellant’s minimum incarceration period instruction in violation of the Eighth and Fourteenth Amendments. Moreover, this conclusion is consistent with the “truth in sentencing” policy of Texas, which is more compelling in the capital sentencing than in the noncapital sentencing context.

While the plurality carefully analyzes appellant’s ninth point of error challenging the trial court’s refusal of his minimum incarceration period instruction under the Due Process Clause, Smith, at 848-858, it cursorily dismisses his related claim under the Eighth Amendment. Id. at 853-854 . Because the plurality fails to consider appellant’s eleventh point of error in light of Matson and established Eighth Amendment death penalty jurisprudence and overrules it, I respectfully dissent. 17

OVERSTREET, J., joins.

. The following issue was proffered to the jury: “Is there a probability that the defendant, Robert Smith, would commit criminal acts of violence that would constitute a continuing threat to society?” Tex.Code Crim.Proc.Ann. art. 37.071.

. Appellant’s counsel requested a parole charge informing the jury that if appellant received life in prison, he would not be eligible for parole under any circumstances until he had served at least fifteen calendar years in prison. At the time of appellant’s trial, Tex.Code Crim.Proc. Ann. article 42.18 § 8(b)(2) provided that a prisoner serving a life sentence for capital murder was not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equaled one-fourth of the maximum sentence or fifteen calendar years. Now, Article 42.18 § 8(b)(2) provides that a prisoner who is sentenced to life imprisonment for a capital offense must serve forty years, without consideration of good conduct time, before he is eligible for parole. Acts 1993 73rd Leg., Ch. 900 § 6.01.

. The judge 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.

. Appellant will be in his late thirties when he becomes eligible for parole.

. Calvin A. Hartmann, Assistant District Attorney, Harris County, in a recent presentation at the Texas District and County Attorneys Association Capital Murder Seminar suggested that the type of parole instruction requested by appellant be given: "|T]he more prudent action would be to continue to voir dire and give parole eligibility instructions, particularly where requested by the defense until the Court of Criminal Appeals issues a definitive opinion." Attached to Hart-mann's paper is a proposed charge on punishment which includes an underlined portion he suggests should be given “if requested by defendant.” The underlined portion states:

You are instructed that a prisoner serving a life sentence for the offense of capital murder is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good time, equals [twenty (20) years if offense committed before 9/1/87; fifteen (15) years if offense committed after 9/1/87-9/1/91],

Calvin A. Hartmann, "Capital Murder Seminar: Jury Instructions” at 15-17 & Appendix (presented Feb. 10, 1995 at the Texas District and County Attorneys Association Capital Murder Seminar). This is the precise instruction requested by appellant in the instant case.

. See Robinson v. California, 370 U.S. 660, 666 , 82 S.Ct. 1417, 1420 , 8 L.Ed.2d 758 (1962) (holding that California's narcotics addiction statute inflicted a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments); see also Furman v. Georgia, 408 U.S. 238, 258 , 92 S.Ct. 2726, 2736 , 33 L.Ed.2d 346 (Brennan, J., concurring) (1972); Louisiana ex *875 rel. Francis v. Resweber, 329 U.S. 459, 463 , 67 S.Ct. 374, 376 , 91 L.Ed. 422 (1946).

. This dissent does not address the issue of whether a defendant has a right to an instruction or expert testimony concerning when, if ever, a defendant will actually be paroled, nor does it address whether the State has any rights regarding parole instructions or related evidence.

. Justices Souter and Stevens believe that the Eighth Amendment compelled the decision, "regardless of whether future dangerousness is an issue at sentencing.” Simmons , — U.S. at-, 114 S.Ct. at 2198 (Souter, J., concurring). But see id. at-, 114 S.Ct. at 2200 (O'Connor, J., concurring) ("[I]f the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jury’s consideration even if the only alternative sentence to death is life imprisonment without possibility of parole.”).

. Following its decision in Simmons , the Supreme Court remanded four cases for consideration in light of Simmons . In each of these cases, the appellant was eligible for parole. Three of the cases have been considered on remand by state courts. North Carolina v. Price, 337 N.C. 756 , 448 S.E.2d 827 (1994), petition for cert. denied -U.S. -, 115 S.Ct. 1368 , 131 L.Ed.2d 224 (1995) (holding Simmons inapplicable on remand because appellant would have been eligible for parole and jury made no inquiry); Wright v. Virginia, 248 Va. 485 , 450 S.E.2d 361 (1994) (holding that Simmons did not apply even though jury predicated death sentence on future dangerousness because appellant would have been eligible for parole); Cardwell v. Virginia, 248 Va. 501 , 450 S.E.2d 146 (1994), petition for cert. filed (U.S. Feb. 2, 1995) (No. 94-7930) (holding that Simmons did not apply because appellant would have been eligible for parole). One case has not been addressed on remand. Mickens v. Virginia, — U.S. -, 115 S.Ct. 307 , 130 L.Ed.2d 271 (1994), vacating and remanding 247 Va. 395 , 442 S.E.2d 678 (1994).

Price, Wright, and Ramdass are state supreme court decisions, and, while petitions for certiora-ri have been filed in Price and Ramdass, the United States Supreme Court has not revisited the Simmons issue.

In addition to the cases remanded by the United States Supreme Court, other courts have considered Simmons . These cases may be grouped in the following five groups:

(1) cases that have required or suggested on remand a parole instruction in light of Simmons. State v. Ross, 230 Conn. 183 , 646 A.2d 1318, 1368 (Conn.1994) (remanding for new sentencing hearing on other grounds; trial judge instructed to consider giving Simmons instruction because appellant would be ineligible for parole); Clark v. Tansy, 118 N.M. 486 , 882 P.2d 527, 530 (1994), reh’g denied (N.M. October 3, 1994) (holding that Simmons' due process analysis required court to give instruction, per defendant’s request, regarding amount of time he would serve for noncapital offenses to rebut aggravating evidence; the need for heightened reliability mandates recognition of defendant’s right to require an instruction on legal terms so that the juty may make a reasoned moral choice).

While ultimately holding on due process grounds that the trial court was required to give the instruction, the Clark Court utilized the Eighth Amendment principles discussed in this dissent to reach its result.

(2) cases that have held that Simmons did not apply because future dangerousness considerations were not present or were dissimilar from Simmons. Allridge v. Scott, 41 F.3d 213 (5th Cir.1994) (holding that defendant must be parole ineligible as a matter of law and not merely of fact to require admission of expert testimony under Simmons ; stating that under Simmons due process requires the State to inform the jury of defendant’s parole ineligibility where it argues that defendant would be a danger to the free world and where defendant is legally ineligible for parole); United States ex rel. Collins v. Welbom, 868 F.Supp. 950 *878 (N.D.Ill. 1994) (holding that Simmons not violated by failure to give parole instruction because prosecutor argued defendant would be dangerous in prison or if he escaped, not if paroled); State v. Southerland, 447 S.E.2d 862, 868 (S.C.1994), petition for cert. denied - U.S. -, 115 S.Ct. 1136 , 130 L.Ed.2d 1096 (1994) (holding that defendant not entitled to parole instruction under Due Process Clause because future dangerousness not at issue nor under Eighth Amendment because jury informed that defendant would not be eligible for parole during closing arguments; requiring instruction when future dangerousness at issue, jury asks about meaning of "life", or defendant requests instruction); Cardwell v. Commonwealth, 248 Va. 501 , 450 S.E.2d 146 (1994), petition for cert. filed (U.S. February 2, 1995) (No. 94-7930) (holding Simmons inapplicable because jury sentenced defendant to death based on vileness and not future dangerousness).

Because the prosecution must prove defendant’s future dangerousness beyond a reasonable doubt under the special issues scheme in every capital case in Texas, Welbom, Souther-land, and Cardwell are not dispositive. Further, these cases were decided on due process grounds while the instant case relies on the Eighth Amendment. Allridge can be distinguished from the instant case on at least two grounds: (1) The defendant in Allridge requested that the trial court admit expert testimony speculating that he would never be paroled (parole ineligible as a matter of fact), while appellant in the instant case requested an instruction that he would be parole ineligible for fifteen years (parole ineligible as a matter of law); (2) The Allridge Court relies on the due process reasoning of the majority in Simmons , while the analysis in the instant case is grounded in the Eighth Amendment principle of heightened reliability in capital sentencing.

(3)cases that have held that Simmons did not apply because the defendant was eligible for parole. Kinnamon v. Scott, 40 F.3d 731 (5th Cir.1994) (holding Simmons claim procedurally barred and not retroactive, but if considered on merits Simmons would not apply because petitioner was eligible for parole); Ingram v. Zant, 26 F.3d 1047, 1052-54 (11th Cir.1994) (holding no violation of Eighth Amendment when petitioner denied instruction on parole because petitioner had no federal right to prevent jury consideration of parole or to have the jury properly instructed; Simmons inapplicable because petitioner eligible for parole); Burgess v. State, 264 Ga. 777 , 450 S.E.2d 680, 693 (1994), reh’g denied (Ga. December 20, 1994) (requiring Simmons instruction only when State argues future dangerousness during sentencing and state law prohibits release on parole, but here defendant eligible for parole); State v. Skipper, 337 N.C. 1 , 446 S.E.2d 252, 275-76 (1994), cert. denied, - U.S. --, 115 S.Ct. 953 , 130 L.Ed.2d 895 (U.S.N.C.1995) (holding Simmons inapplicable because defendant eligible for parole; noting that parole eligibility is not mitigating evidence because not part of the defendant’s character or record or a circumstance of the offense); State v. Bacon, 337 N.C. 66 , 446 S.E.2d 542 (1994), petition for cert. denied - U.S. -, 115 S.Ct. 1120 , 130 L.Ed.2d 1083 (1994) (holding that Simmons did not control because defendant eligible for parole where defendant claimed issue of parole raised when witnesses asked if would allow defendant into their homes after release); State v. Payne, 337 N.C. 505 , 448 S.E.2d 93, 99 (1994), petition for cert. filed (U.S. January 27, 1995) (No. 94-7873) (holding that no parole instruction required under Simmons because defendant would have been eligible for parole where defendant requested instruction about life sentence in Virginia and fact that life sentences could be served consecutively); State v. Robinson, 339 N.C. 263 , 451 S.E.2d 196, 205 (N.C. 1994) (denying motion to permit questioning of venire about parole eligibility under Simmons because defendant would have been eligible for parole); Cardwell, 450 S.E.2d 146 (Va.1994), petition for cert. filed (U.S. February 2, 1995) (No. 94-7930) (holding Simmons inapplicable in part because defendant eligible for parole).

As stated in part II, supra, appellant in the instant case requested a specific instruction: Appellant requested that the trial court instruct the jury that he would be parole ineligible for fifteen years as a matter of state law. Because the instructions requested above differ in this important respect from the instant case or the holdings were based on due process grounds, the precedential value of these cases is limited.

(4) cases with procedural problems. Kinna-mon, 40 F.3d 731 (holding claim procedurally barred and Simmons not cognizable on collateral review); Allridge, 41 F.3d 213 (5th Cir. 1994) (holding Simmons not cognizable on collateral review); Ingram, 26 F.3d 1047 (11th Cir.1994) (holding Simmons not cognizable on collateral review).

Unlike defendants in Kinnamon, Allridge and Ingram , appellant is on direct review, his claim is cognizable on direct review, and he has properly preserved error.

(5) cases where Simmons was discussed for other reasons. Shannon v. United States, - U.S.-,-, 114 S.Ct. 2419 , 2424 n. 4, 129 L.Ed.2d 459 (1994) (citing Simmons for the proposition that capital juries have sentencing responsibilities); Fero v. Kerby, 39 F.3d 1462 (10th Cir.1994) (holding Simmons inapplicable where State was not seeking the death penalty); State v. Cornell, 179 Ariz. 314 , 878 P.2d 1352, 1374 (1994) (citing Simmons for requirement of heightened reliability where defendant had represented himself until sentencing phase, and counsel appointed for sentencing was denied continuance); Thornton v. State, 264 Ga. 563 , 449 S.E.2d 98, 113 (1994) (holding Simmons instruction not required where *879 jury asked question regarding the meaning of “life imprisonment,” but later withdrew it); State v. Jones, 639 So.2d 1144, 1154-55 (La. 1994) (citing Simmons in holding that clemency instruction included in statutory jury instruction rendered statute unconstitutional under the state constitutional provision against cruel and unusual punishment; noting that under Simmons procedures which undermine the reliability of the sentencing process violate prohibition of cruel and unusual punishment); State v. Cunningham, 320 Or. 47 , 880 P.2d 431, 448 (1994) (Fadeley, J., dissenting) (stating that standardless and unreviewable statute should be held unconstitutional while citing Simmons for due process requirement of reliability); State v. Delisle, 648 A.2d 632 (Vt.1994) (Johnson, J., concurring) (citing Simmons for proposition that juries sometimes do not or will not follow instructions).

. Justice O’Connor, in her concurrence in Simmons , appears to construe the plurality’s due process argument as limited to situations where the State puts the defendant’s future dangerousness at issue and the only available alternative sentence to death is life imprisonment without possibility of parole. However, O’Connor acknowledges that jurors often make decisions without accurate information: "[Cjommon sense tells us that many jurors do not know whether a life sentence carries with it a possibility of parole.” Simmons , —• U.S. at --, 114 S.Ct. at 2201 (O’Connor, J., concurring).

. See Sally Costanzo & Mark Costanzo, Life or Death Decisions: An Analysis of Capital Jury Decision Making Under the Special Issues Sentencing Framework, 18 Law & Human Behavior 151 (1994) (Texas juries); Simmons , ■ — U.S. at -n. 9, 114 S.Ct. at 2197 n. 9. The Oregon study was conducted by interviewing a random sample of three jurors from each of nine capital juries over a two year period in a county in Oregon. Of the nine juries, five answered the special issues, which are patterned after Texas law, to render a death sentence, and four rendered a life sentence. Only seven of the twenty-seven jurors believed that the sentence rendered would be carried out. That is, members of "life” juries believed that the defendant would be released early, and members of "death" juries believed execution would not occur. Twenty-three *881 of the twenty-seven jurors thought the possibility of parole was an important factor when answering the special issues. Interestingly, the jurors on one of the juries rendering a life sentence did so because they believed the defendant would be too old when released to be a danger to society. The jurors on one of the death juries rendered a death sentence because it believed that the defendant would still be young enough to pose a threat to society after release.

The Simmons plurality also cited to articles discussing public opinion and juror surveys that support the "commonsense understanding” that there is a reasonable likelihood of juror misper-ception about the meaning of the term "life imprisonment.” Simmons , - U.S. at-n. 9, 114 S.Ct. at 2197 n. 9. In Capital Punishment & Contemporary Misperceptions, 27 Law & Society 157, 168-71 (1993), William Bowers discussed a study based on surveys of capital jurors and citizens who had not served as capital jurors in New York, Nebraska, South Carolina, California, and Florida. The study found that both jurors and citizens grossly underestimate the amount of time a defendant will serve if sentenced to life. Fifty percent of the citizens surveyed in Nebraska believed that the penalty for murder was fifteen years or less when the penalty was actually life without parole. One in four juries in Georgia interrupted deliberations to submit a question to the court. Ninety percent of the questions asked were about the meaning and duration of a "life” sentence. The earlier jurors believe defendants will be released, the more likely they are to opt for a death sentence. The study indicates that in states where fewer jurors have accurate information about parole eligibility laws, this relationship is more pronounced.

A study of capital jurors in Virginia found that jurors believed that capital defendants would only serve one-half the time they actually were required to serve. William W. Hood, III, The Meaning of "Life” for Virginia Jurors and Its Effect on Reliability in Capital Sentencing, 75 Va.L.Rev. 1605, 1624 (1989). Hood concluded that this misunderstanding led jurors to make decisions “based on caprice or emotion rather than properly informed reason.” Id. Finally, Theodore Eisenberg and Martin T. Wells discussed a study that found that jurors who believe that defendants sentenced to life will have to serve only a short period of time in prison (16.8 years) tend to render death sentences. In contrast, jurors who believe that defendants sentenced to life will have to serve a substantially greater period of time in prison (23.8 years) tend to render sentences of life imprisonment. Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L.Rev. 1 (1993).

. Acts 1985 69th Leg., Ch. 427 § 2 (20 years); Acts 1987 70th Leg., Ch. 384 § 5 (15 years); Acts 1991 72nd Leg., Ch. 652 § 10 (35 years); Acts 1993 73rd Leg., Ch. 900 § 6.01 (40 years).

. Id. at-, 114 S.Ct. at 2193 n. 4.

. In its consideration of the issue of capital punishment in the 1970s, the Supreme Court initially rejected a claim that permitting a jury to impose the death penalty without governing standards violated due process in McGautha v. California and Crampton v. Ohio, 402 U.S. 183 , 91 S.Ct. 1454 , 28 L.Ed.2d 711 (1971). However, one year later, the Supreme Court held that permitting a jury to impose the death penalty in the absence of governing standards constituted “cruel and unusual” punishment in violation of the Eighth Amendment. Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). In his dissent in Furman , Chief Justice Burger criticized Justice Stewart’s and Justice White’s concurring opinions for concluding that Georgia's system of discretionary sentencing in capital cases violated the Eighth Amendment because it failed to produce evenhanded justice. He argued that the claim of “arbitrariness” in sentencing fails to establish that the death penalty is "cruel and unusual” punishment: “The approach of these concurring opinions has no antecedent in the Eighth Amendment cases. It is essentially and exclusively a procedural due process argument.” Furman, 408 U.S. 238, 399 , 92 S.Ct. 2726, 2809 (Burger, C.J., dissenting).

In subsequent capital decisions grounded in due process principles, it appears that the Supreme Court has abrogated the holding of McGautha and Crampton. E.g., Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977); Skipper, 476 U.S. 1 , 106 S.Ct. 1669 ; Simmons, -U.S. -, 114 S.Ct. 2187 .

. Tex.Code Crim.Proc.Ann. art. 42.18 § 8(b); see supra note 2.

. The trial court denied appellant’s request to define “society” for the jury, stating that it was a word in "common use in the English language and ... readily understood by the populous [sic].’’ However, while this Court has defined “society” as including both prison and the free world, see, e.g., Boyd v. State, 811 S.W.2d 105 , 118 n. 12 (Tex.Crim.App.1991), cert. denied, 502 U.S. 971 , 112 S.Ct. 448 , 116 L.Ed.2d 466 (1991), even attorneys are confused as to its meaning. For example, appellant's counsel asserted:

The Legislature in composing the wording for this [second] issue did not contemplate T.D.C. or Texas Department of Corrections as being a part of society that this jury needs to consider in determining whether or not the defendant will pose a continuing threat to society. The society that is reflected in the issue is in fact that the society that the jurors live in, individuals on the street who are free from incarceration.

. In footnote 25, the plurality states, “The choice of determining what a jury should consider is generally legislative.” Smith, at 853 n. 25. Where there exists in the law a vacuum and the Constitution mandates the filling of that vacuum in order to properly answer a controversy, this Court should not succumb to the ostrich-like argument that the matter should be taken care of through the legislative process; certainly this argument fails vis-a-vis Constitutional matters. The plurality refuses, as it did in Penry v. Ly-naugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 , to fulfill our constitutional mandate. As explained above, this Court is compelled by Matson, 819 S.W.2d 839 , argued by appellant but not mentioned by the plurality, and established Eighth Amendment death penalty jurisprudence to hold that the trial court’s refusal of appellant's instruction is error.