¶1dissenting.
¶2I respectfully dissent. The majority, while espousing a harm analysis under Rule 81(b)(2) is, in my opinion, utilizing the Almanza harm analysis. There is a difference between the so-called “harmless error” standard applied by the majority and the requirement that this court find beyond a reasonable doubt that the error made no contribution to the punishment. The majority, in fact, finds that “the facts of this case militate in favor of, if anything, a harsher sentence than was actually assessed,” indicating appellant would be required to show how she was harmed. The burden is actually upon the state to show no harm.
¶3The reported cases are obviously divided on how TEX.R.APP.P. 81(b)(2) should be applied under Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988) (on rehearing). In Salas v. State, 756 S.W.2d 832 (Tex.App.— Corpus Christi 1988, no pet.) a murder conviction was reversed where a sixteen-year-old with no prior convictions received a twenty-five-year sentence. Garay v. State, 755 S.W.2d 956 (Tex.App. — San Antonio 1988, no pet.) was a reversal where an aggravated robber with a prior felony received seventy years. The court noted the charge did not include the additional instructions that how long the defendant would be required to serve was not the jury’s concern, but referred to this instruction as the “curative” instruction. Id. at 957. Olivarez v. State, 756 S.W.2d 113 (Tex.App. — San Antonio 1988, no pet.) was a reversal where an aggravated robber found to be a habitual offender received forty-five years. This case criticizes Baker v. State, 752 S.W.2d 237 (Tex.App. — Fort *362Worth 1988, pet. ref’d) and Lancaster v. State, 754 S.W.2d 493 (Tex.App. — Dallas 1988, no pet.) in using the analysis that there was ample evidence to support the jury’s finding. Howell v. State, 757 S.W. 2d 513 (Tex.App. — Houston [1st Dist.] 1988, no pet.) was a reversal of a murder conviction where the defendant, who had no prior convictions, received 40 years. The jury had been given the “curative” instruction, but the state extensively argued parole law. Riscke v. State, 757 S.W.2d 518 (Tex. App. — Houston [1st Dist.] 1988, no pet.) reversed a twelve-year sentence for voluntary manslaughter.
¶4Rodriquez v. State, 757 S.W.2d 420 (Tex. App. — Dallas 1988, no pet.) affirmed a life sentence for murder where the defendant confessed to the crime and the state proved three prior convictions. Webber v. State, 757 S.W.2d 51 (Tex.App. — Houston [14th Dist.] 1988, pet. ref'd) affirmed a sentence of forty-nine years for aggravated robbery. The “curative” instruction was present, and the jury found two prior felony convictions. Zwack v. State, 757 S.W.2d 66 (Tex. App. — Houston [14th Dist.] 1988, no pet.) affirmed a forty-five-year sentence for attempted capital murder. In this case, the “curative” instruction was given and several jurors testified in a motion for new trial hearing that the parole law instruction did not cause a longer sentence. Compare Austin v. State, 748 S.W.2d 546 (Tex.App. —Beaumont 1988, pet. ref’d) which reversed, under an Almanza “egregious” harm analysis, a twenty-year conviction for murder where a juror had also stated the parole law charge was considered in light of the particular defendant. Pope v. State, 756 S.W.2d 401 (Tex.App. — Dallas 1988, no pet.) affirmed a forty-five-year aggravated sexual assault sentence where the “curative” instruction had been given and the court found the facts to be heinous. In Evans v. State,:760 S.W.2d 760 (Tex.App.— Beaumont 1988) this court unanimously affirmed a ninety-nine-year sentence for aggravated sexual assault because of the “curative” instruction, two prior felony convictions and the “grizzly facts.”
¶5Once a fact finder had rejected a defendant’s self-defense theory and reached a murder conviction, the crime, by common sense, is a heinous crime. However, in the context of comparing murder scenarios, this was not particularly heinous. While it is obvious the jury did not want appellant to receive probation, she nevertheless received three times the minimum. Thus, I cannot say, beyond a reasonable doubt, that the parole law charge did not contribute to the punishment. Therefore, I would reverse and remand for a new trial on punishment.