¶1concurring and dissenting.
¶2I concur with the majority opinion on appellants’ convictions, but I respectfully dissent as to the affirmation of the punishment assessed.
¶3As stated in the majority opinion, the burden is on the State to show that the inclusion of the unconstitutional parole instruction in the final court’s charge was harmless error. I believe the State has failed to sustain its burden.
¶4The prosecutor’s closing argument, set out in the majority opinion, blatantly disregards the court’s instruction to the jury that they were not to discuss or consider the manner in which the parole law applied to the appellant. In fact, the prosecutor specifically informed the jury how the parole law works, how good time is applied, and what effect these two have upon any punishment assessed by the jury.
¶5The fact that the court gave an unconstitutional parole instruction to the jury and then permitted the prosecutor, over objection, to completely ignore the court’s own instruction, compounds the error. This makes it impossible for me to conclude that the State has proved that the erroneous charge was harmless beyond a reasonable doubt.
¶6I would affirm the conviction, reverse the punishment assessed, and remand the cause to the trial court for a new trial on punishment.