OPINION
BURGESS, Justice.
A jury convicted appellant of the murder of his brother and assessed his punishment at twenty years confinement in the Texas Department of Corrections. He brings forth three points of error. The first two both relate to TEX.CODE CRIM.PROC. ANN. art. 37.07(4) (Vernon Supp.1988) or the parole law jury instruction. The final point of error complains of improper jury argument.
In his first point of error, appellant alleges the trial court erred in denying a motion for new trial based upon jury misconduct. The second point alleges the trial court erred in not granting him a new trial based [547]*547upon the court's parole law jury instruction being unconstitutional. Appellant acknowledges that he did not object to the charge prior to its being given to the jury and thus he is entitled to a new trial only if there has been egregious harm. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on rehearing). The issue of the constitutionality of the instruction has been decided in Rose v. State, No. 193-97 (Tex.Crim.App.—November 12, 1987) (not yet reported). A plurality of the court held an Al-manza review to be proper whether an objection was lodged or not.
The trial court in its instruction, in pertinent part, stated:
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
This instruction was in direct compliance with sec. 37.07(4). Appellant’s complaint in his motion for new trial was that the jurors disregarded this instruction and this was jury misconduct. The motion for new trial was accompanied by an affidavit from a juror and that affidavit was placed before the trial court at the hearing on the motion. The affidavit states:
In August of 1986 I served as a juror in Case Number 16282, the State of Texas v. John S. Austin in the 253rd District Court of Liberty County, Texas.
When the jury retired to deliberate at the punishment phase of Mr. Austin’s trial, my initial vote was for a sentence of ten years. Most of the other jurors initially wanted to give him forty years. As we discussed what the appropriate sentence should be, we mentioned various periods of time, including fifteen and thirty years.
As each proposed sentence was debated, we discussed the fact that Mr. Austin would be eligible for parole in one-third of the time that we sentenced him to and computed the number of years he would have to serve. We talked about Mr. Austin’s age and how old he would be when he could get out. We also discussed the fact that when Mr. Austin would actually get out of prison would depend on how he conducted himself while in prison.
The information we had about parole came from what the judge read to us in the courtroom. We did not have a written or typed set of instructions from the judge in the jury room. I personally took into consideration that Mr. Austin could be out of prison in about 6V2 years when I agreed to sentence him to twenty years. If I had not considered parole as it applied to Mr. Austin, by thinking he could get out in less than twenty years, I would not have agreed to that sentence, but would have wanted to sentence him to a shorter term. I did not think that there was anything wrong with discussing parole or how it would be applied to Mr. Austin. At no time did any of the other jurors say that they thought it was improper. If the judge did not want us to talk about parole I do not think he would have told us about it.
The state did not object to the use of the juror’s affidavit at the hearing on the motion for new trial, nor do they raise the issue before us. Therefore, we are not called upon to analyze its use under TEX. R.CRIM.EVID. 606(b).
We are called upon, however, to examine the relationship of Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (opinion on rehearing) to a discussion of parole under an instruction given in accordance with art. 37.07(4). Several courts of appeal have decided that the rule set forth in Sneed should carry forward. Shields v. State, 730 S.W.2d 178 (Tex.App.—San Antonio 1987, no pet.); Tollett v. State, 727 S.W.2d 714 (Tex.App.—Austin 1987, pet. granted); Benitez v. State, 733 S.W.2d 395 (Tex.App.—Fort Worth 1987, no pet.); Richardson v. State, 733 S.W.2d 947 (Tex.App.—Austin 1987, pet. granted). We decline to accept the rationale of our brethren. We believe Sneed, by its very nature, is inapplicable to this case, for under the Sneed test, a jury’s [548]*548discussion of the parole law constitutes reversible error if there was:
(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher punishment.
Sneed, 670 S.W.2d at 266.
Admittedly, Ms. Hoff’s affidavit alleges no such violations as required by Sneed. She candidly admitted the jurors discussed how the parole laws would be applied to the defendant and how she personally considered the effect of the parole law on appellant. She went further to state she voted for a harsher punishment because of the parole law consideration. The state presented no controverting affidavits or testimony at the motion for new trial. They argue only that the trial judge had the discretion to disbelieve Ms. Hoff, especially in light of the fact she alleged they did not have a copy of the jury charge in the jury room. Where there is conflicting evidence, the trial court does not abuse its discretion in refusing to grant a new trial. McCartney v. State, 542 S.W.2d 156, 162-63 (Tex.Crim.App.1976). However, there is no conflicting evidence on the crucial issue of jury misconduct. The trial court erred in overruling the motion for new trial. Point of error number one is sustained.
The second point of error alleges the trial court committed reversible error in refusing to grant the new trial because of the inclusion of the parole law instruction in the charge. The instruction was not objected to; therefore, a reversal will be warranted only upon the showing of egregious harm. Rose v. State, No. 193-97 (Tex.Crim.App.—November 12, 1987) (concurring opinion). As previously noted under the first point of error, appellant obviously suffered harm because of juror Hoffs consideration. There are other factors to consider. Several members of the court of criminal appeals placed some weight on the fact that the prosecutor in Rose did not mention the parole instruction in jury argument. In this case, however, the prosecutor made the following remarks during argument:
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OPINION
BURGESS, Justice.
A jury convicted appellant of the murder of his brother and assessed his punishment at twenty years confinement in the Texas Department of Corrections. He brings forth three points of error. The first two both relate to TEX.CODE CRIM.PROC. ANN. art. 37.07(4) (Vernon Supp.1988) or the parole law jury instruction. The final point of error complains of improper jury argument.
In his first point of error, appellant alleges the trial court erred in denying a motion for new trial based upon jury misconduct. The second point alleges the trial court erred in not granting him a new trial based [547]*547upon the court's parole law jury instruction being unconstitutional. Appellant acknowledges that he did not object to the charge prior to its being given to the jury and thus he is entitled to a new trial only if there has been egregious harm. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on rehearing). The issue of the constitutionality of the instruction has been decided in Rose v. State, No. 193-97 (Tex.Crim.App.—November 12, 1987) (not yet reported). A plurality of the court held an Al-manza review to be proper whether an objection was lodged or not.
The trial court in its instruction, in pertinent part, stated:
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
This instruction was in direct compliance with sec. 37.07(4). Appellant’s complaint in his motion for new trial was that the jurors disregarded this instruction and this was jury misconduct. The motion for new trial was accompanied by an affidavit from a juror and that affidavit was placed before the trial court at the hearing on the motion. The affidavit states:
In August of 1986 I served as a juror in Case Number 16282, the State of Texas v. John S. Austin in the 253rd District Court of Liberty County, Texas.
When the jury retired to deliberate at the punishment phase of Mr. Austin’s trial, my initial vote was for a sentence of ten years. Most of the other jurors initially wanted to give him forty years. As we discussed what the appropriate sentence should be, we mentioned various periods of time, including fifteen and thirty years.
As each proposed sentence was debated, we discussed the fact that Mr. Austin would be eligible for parole in one-third of the time that we sentenced him to and computed the number of years he would have to serve. We talked about Mr. Austin’s age and how old he would be when he could get out. We also discussed the fact that when Mr. Austin would actually get out of prison would depend on how he conducted himself while in prison.
The information we had about parole came from what the judge read to us in the courtroom. We did not have a written or typed set of instructions from the judge in the jury room. I personally took into consideration that Mr. Austin could be out of prison in about 6V2 years when I agreed to sentence him to twenty years. If I had not considered parole as it applied to Mr. Austin, by thinking he could get out in less than twenty years, I would not have agreed to that sentence, but would have wanted to sentence him to a shorter term. I did not think that there was anything wrong with discussing parole or how it would be applied to Mr. Austin. At no time did any of the other jurors say that they thought it was improper. If the judge did not want us to talk about parole I do not think he would have told us about it.
The state did not object to the use of the juror’s affidavit at the hearing on the motion for new trial, nor do they raise the issue before us. Therefore, we are not called upon to analyze its use under TEX. R.CRIM.EVID. 606(b).
We are called upon, however, to examine the relationship of Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (opinion on rehearing) to a discussion of parole under an instruction given in accordance with art. 37.07(4). Several courts of appeal have decided that the rule set forth in Sneed should carry forward. Shields v. State, 730 S.W.2d 178 (Tex.App.—San Antonio 1987, no pet.); Tollett v. State, 727 S.W.2d 714 (Tex.App.—Austin 1987, pet. granted); Benitez v. State, 733 S.W.2d 395 (Tex.App.—Fort Worth 1987, no pet.); Richardson v. State, 733 S.W.2d 947 (Tex.App.—Austin 1987, pet. granted). We decline to accept the rationale of our brethren. We believe Sneed, by its very nature, is inapplicable to this case, for under the Sneed test, a jury’s [548]*548discussion of the parole law constitutes reversible error if there was:
(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher punishment.
Sneed, 670 S.W.2d at 266.
Admittedly, Ms. Hoff’s affidavit alleges no such violations as required by Sneed. She candidly admitted the jurors discussed how the parole laws would be applied to the defendant and how she personally considered the effect of the parole law on appellant. She went further to state she voted for a harsher punishment because of the parole law consideration. The state presented no controverting affidavits or testimony at the motion for new trial. They argue only that the trial judge had the discretion to disbelieve Ms. Hoff, especially in light of the fact she alleged they did not have a copy of the jury charge in the jury room. Where there is conflicting evidence, the trial court does not abuse its discretion in refusing to grant a new trial. McCartney v. State, 542 S.W.2d 156, 162-63 (Tex.Crim.App.1976). However, there is no conflicting evidence on the crucial issue of jury misconduct. The trial court erred in overruling the motion for new trial. Point of error number one is sustained.
The second point of error alleges the trial court committed reversible error in refusing to grant the new trial because of the inclusion of the parole law instruction in the charge. The instruction was not objected to; therefore, a reversal will be warranted only upon the showing of egregious harm. Rose v. State, No. 193-97 (Tex.Crim.App.—November 12, 1987) (concurring opinion). As previously noted under the first point of error, appellant obviously suffered harm because of juror Hoffs consideration. There are other factors to consider. Several members of the court of criminal appeals placed some weight on the fact that the prosecutor in Rose did not mention the parole instruction in jury argument. In this case, however, the prosecutor made the following remarks during argument:
Ladies and gentlemen, I submit to you that the only punishment to be considered here today is a stretch in the Texas Department of Corrections. And the law gives you some information on our parole laws. It provides that you will first be eligible for parole after the actual time that he has served equals one-third of the sentence you assess here today or twenty years, whichever is less. It also provides that the minimum of actual time that he would have to serve would be two years if the sentence was six years or less. This means, as I said, actual time served before he would be eligible for parole is one-third of the term of years you assess here today, or twenty years, whichever is less.
Ladies and gentlemen, I believe if you go back and sit in the jury room and consider this, you will see that a long stretch in the penitentiary is a correct judgment in this case.
The tenor of the state’s argument certainly asks the jury to base its punishment upon the one-third rule. This type of consideration is improper as it would be applied to the particular defendant. There is, of course, an argument that no egregious harm has been shown because appellant only received twenty years in the Texas Department of Corrections and could have received 99 years or life. This assessment is entirely subjective and in view of the two objective instances, the juror’s affidavit and the state’s argument, the subjective analysis must fall. Consequently, we find that appellant suffered egregious harm by the use of the instruction. Point of error number two is sustained.
The final point of error relates to alleged improper jury argument during the guilt or innocence stage. The argument was not objected to and, arguably, it is permissible. In any event, it would not call for a reversal. This point of error is overruled.
Having found error at the punishment stage of the proceedings, the case is reversed and remanded for a new hearing on [549]*549the issue of punishment only. TEX. CODE CRIM.PBOC.ANN. art. 44-29 (Vernon Supp.1988).
REVERSED AND REMANDED.