Barehill v. State

I respectfully dissent. Rose v. State told us to apply the harm analysis of Tex.R.App.P. 81(b)(2), to determine if there was error in the cases submitted with the parole instruction. 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (op. on reh’g) (Rose II). I do not believe the State carried its burden to prove the constitutionally defective parole instruction did not contribute to the punishment.

Rose II gave us three factors to consider in making the harm analysis in these cases: (1) whether the trial court gave the curative instruction, (2) the heinous nature of the crime, and (3) the defendant’s…