dissent">*294DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. In this case, the trial court’s failure to give the “no adverse inference” instruction to the jury was harmless. See Beathard v. State, 767 S.W.2d 423, 432-33 (Tex.Crim.App.1989). There is a natural tendency to assume that the defendant’s decision not to testify stems from his having something to hide. Id. at 432. But that is not a concern here. Durham had already testified during the guilt/innocence phase and related his version of the facts.

The State’s evidence during punishment consisted of a probation department employee’s testimony concerning the possibility of counseling for sex offenders in prison. This was not a factual assertion that Durham needed to deny or counter. The jury had found him guilty. The range of punishment for the offense was five to ninety-nine years; the jury did not assess the maximum. See Tex. Pen.Code Ann. § 22.021(e) (Vernon Supp.2005); Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The jury heard evidence Durham had never before been convicted of a felony. His friend made a plea for probation and testified he would help Durham follow probation rules. And during voir dire, the State explained a defendant’s Fifth Amendment right not to testify and remain silent. Here, there were no factual assertions in the punishment phase that the jury would have expected Durham to counter. As in Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App.1989), the error in failing to give a “no adverse inference” instruction to the jury was harmless under these circumstances.

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