Smith v. State

898 S.W.2d 838, 1995 Tex. Crim. App. LEXIS 26, 1995 WL 92795

• Court: Court of Criminal Appeals of Texas
• Decided: March 8, 1995
• Docket: 71433
• Status: Published

Opinions

OPINION

MEYERS, Judge.

Appellant was found guilty for the capital murder of James Wilcox in the course of robbery. Tex.Penal Code Ann. § 19.03(a)(2). After the jury affirmatively answered the submitted statutory special issues, the trial court sentenced appellant to death. Tex. Code Crim.Proc.Ann. art. 37.071(b). Appeal to this Court is automatic. Tex.Code Grim. Proc.Ann. art. 37.071(h). We will affirm.

I. EVIDENTIARY ISSUES

Because several of appellant’s complaints on appeal concern the facts of the underlying crime, a recitation of the facts is necessary. Appellant and his accomplice entered the Fayco Menswear clothing store in Houston fifteen minutes before closing. The two new “customers” wandered throughout the store, appellant finally settling upon several high priced goods. Because of his behavior and his failure to try on any of his purchases, the saleslady, Ms. Kim, became suspicious. She signaled a friend at another store that she was in trouble. Ms. Kim also picked up the phone and called the operator for help. Before Ms. Kim could speak to the operator, appellant pointed a gun at her head and told her to hang up the phone and to lay on the ground. She complied. Ms. Kim’s friend arrived and was maced by appellant’s accomplice when he entered.

Appellant, unable to open the cash register, ordered Ms. Kim to stand and retrieve money from the register. When she stood, Ms. Kim moved appellant’s car keys which he had placed with his purchases on the counter. Appellant, unaware his keys had been moved, fled the store with money and merchandise along with his accomplice. When they had left, Ms. Kim called the police and also informed the local security guards of the robbery.

Appellant fled in the direction of a KMart two buildings away from Fayco Menswear. As appellant approached his car, Mr. Griffith, a KMart security supervisor, was approaching his auto. Appellant asked Mr. Griffith to call an ambulance because a building was on fire, pointing in the general direction of Fay-eo Menswear. Mr. Griffith saw no fire and thought it strange an ambulance should be called, nevertheless, he began to get into his car. A few moments later, Mr. Griffith heard appellant say, “I can’t find the fucking keys. I can’t find the fucking keys now.” Appellant and his accomplice then exited their car and fled.

Soon after they had fled, Mr. Griffith was informed of the robbery by one of the local security guards. Mr. Griffith and the security guard got in Mr. Griffith’s car and pursued the two robbers. Mr. Griffith and the guard saw appellant and his accomplice jump a fence into a nearby abandoned trailer park. They drove to an entrance where a gate had been knocked down. Approximately 12 to 15 seconds elapsed between the time the robbers jumped the fence to the time the pursuers got to the entrance. As they were exiting the car, Mr. Griffith heard a gunshot. Each man ran behind a tree for cover. From behind his tree, Mr. Griffith could hear two frantic voices from inside the park. However, he could only see shadows.

A truck engine started, its lights went on, and the truck began heading in Mr. Griffith’s direction. As a warning, Mr. Griffith fired four shots into the air. The truck stopped, and its occupants exited and fled on foot. The police arrived and requested Mr. Griffith and the security guard to return to Kmart to watch the abandoned vehicle. The police then continued the pursuit.

The police brought in a K-9 unit and began tracking the robbers using a Belgian Malinois, a dog similar in appearance to a compact German Shepard. The dog and his handler tracked appellant into a wooded area where the dog was released. The dog caught up with appellant, and his handler arrested appellant as the dog was attempting to pull appellant from some brush.

Another officer approached the abandoned truck. In close proximity to the truck, a tent had partially collapsed. On part of the tent the officer discovered a dead male, subsequently identified as James Wilcox. Appellant later confessed to the murder of Wilcox.¹

In appellant’s first three points of error, he complains the trial court erred in admitting the evidence of appellant’s robbery of the men’s clothing store during the guilt phase of the trial and in failing to properly limit the jury’s consideration of such evidence.² Generally, “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Tex.R.Crim.Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1991) (on rehearing). Rule 404(b), however, lists a number of exceptions to this rule. For instance, the evidence may be admissible to prove motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident. Montgomery, 810 S.W.2d at 387; Tex.R.Crim.Evid. 404(b). This list is neither exclusive nor exhaustive. McCormick, Evidence § 190 (4th ed. 1992); Goode, Wellborn & Sharlot, 1 Texas Practice § 404.6.3, at 173 (2nd ed. 1993).

Appellant filed a motion to suppress the evidence of his extraneous offenses with the trial court. The court denied the motion noting that the “State has [the] burden to prove intent and other elements.” During the charge conference, the trial court again stated that the evidence was admissible to show appellant’s motive and intent. Appellant contends on appeal that the evidence was admitted as background evidence only, and is not admissible unless it is “necessary” to the jury’s understanding of the offense at trial. See Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App.1993). Appellant argues further that the only issue at trial was whether appellant intentionally killed Wilcox and the evidence at the first aggravated robbery does not have any bearing on that issue.

We disagree. The evidence of appellant’s aggravated robbery establishes his motive and helps prove his intent to kill Wilcox and steal Wilcox’s truck. Appellant’s flight from the first offense, the fact that his car keys had been left, and his need of an automobile to effectuate his escape from the robbery of the men’s clothing store crime help explain appellant’s intentions when he came upon the victim. It is arguable appellant knew that his robbery had been reported and that the police were en route to Fayco Mens-we'ar. Because the evidence of the aggravated robbery was relevant to illustrate appellant’s motive and intent, the trial court did not err in admitting that evidence. Tex. R.Crim.Evid. 404(b); see Peterson v. State, 836 S.W.2d 760, 762-763 (TexApp.—El Paso 1992, pet. ref d) (Evidence of appellant’s possession of marijuana, pistol and ammunition indicated defendant’s motive and intent for his aggravated assault on peace officer).³

In appellant’s second and third point of error, he complains the trial court erred in overruling his objection to the court’s charge and in falling to limit the jury’s consideration of the initial robbery to a proper purpose. During the charge conference, appellant objected to the inclusion of the court’s instruction limiting the jury’s consideration of the extraneous offense. Appellant objected to any limiting instruction being given at trial. In fact, the only reason the limiting instruction remained after appellant requested it be removed was because the State requested it remain, doing so “to protect the defendant’s rights.” See Montgomery, 810 S.W.2d at 388. Because appellant did not object or request a different more limited instruction, he cannot now complain of that failure. See Tex.Code Crim.Proe.Ann. art. 36.14; Tex. R.App.Proc. 52(a). Appellant’s first three points of error are overruled.

In appellant’s sixteenth point of error, he argues that the State’s offer of a life imprisonment in return for a guilty plea should be admissible as mitigating evidence during the punishment phase of the trial. Specifically he avers that “his refusal to accept the proffered life sentence was due to the fact that he did not kill the complainant deliberately or intentionally and was therefore mitigating.” The State argues evidence of plea offers is inadmissible under Rule 408 of the Texas Rules of Criminal Evidence. See Moss v. State, 860 S.W.2d 194, 196-197 (Tex.App.—Texarkana 1993, no pet.).⁴

Rule 408 provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest or a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

(Emphasis added.) The U.S. Second Circuit Court of Appeals noted that reference in the Federal Rules to “a claim which was disputed as to either validity or amount” does not generally refer to criminal plea bargains. United States v. Baker, 926 F.2d 179, 180 (2nd Cir.1991).⁵ Baker further held that Federal Rule 408 applies to civil matters only. Id.; compare United States v. Hays, 872 F.2d 582, 588-589 (5th Cir.1989) (Evidence of a civil settlement agreement is not admissible in a criminal proceeding), and United States v. Prewitt, 34 F.3d 436, 439 (7th Cir.1994) (clear reading of rule 408 is that it applies to “civil proceedings” only). This interpretation of Rule 408 is buttressed by the presence of Rule 410 which prohibits the State from introducing evidence of a plea or statements made during plea negotiations against a defendant. Tex.R.Crim.Evid. 410.

The State cites to Moss v. State, supra, to support the proposition that because Rule 408 is in the Criminal Rules of Evidence, then the Rule applies to criminal settlement agreements as well. We agree that Rule 408 is applicable in criminal cases because of its presence in the Criminal Rules of Evidence, but we do not agree that it applies to criminal plea negotiations. See Hays, supra; United States v. Gonzalez, 748 F.2d 74, 78 (2nd Cir.1984) (“In this criminal prosecution, Gonzalez’s statements were admitted to establish that Gonzalez committed a crime, and their relevance to that issue does not depend on an inference that [the Bank] had a valid claim against Gonzalez”) The rule is limited on its face to evidence which is presented to prove “the validity for or invalidity of [a] claim or its amount.” Nothing in the State’s offer of capital life during its plea negotiations concerns the validity or invalidity of a claim or its amount. While Rule 408 is applicable in criminal proceedings, it does not apply to a State’s plea offer.

Nevertheless, if the trial court’s decision was correct on any theory of law applicable to the case, it will be sustained. McFarland v. State, 845 S.W.2d 824, 846 n. 15 (Tex.Crim. App.1992), cert. denied, — U.S. -, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Calloway v. State, 743 S.W.2d 645, 652 (Tex.Crim.App.1988). The State’s offer of life to a capital defendant was excludable on other grounds. Evidence that the State offered a capital defendant a plea of life may be minimally relevant to a State District Attorney’s office belief that the defendant was not a future danger. Tex.R.Crim.Evid. 401 and 402; Montgomery, 810 S.W.2d at 386. However, such evidence is substantially outweighed by the danger of both unfair prejudice and of misleading the jury. Tex. R.Crim.Evid. 403. There are numerous reasons the State may offer a plea of capital life to a capital defendant, including the availability of county resources, the quality of evidence or witnesses, internal policies within a district attorney’s office, or a desire to prevent a victim’s family from suffering the trauma of a capital trial. These various reasons could independently or in combination encourage the district attorney to make the offer of capital life. The limited probative value of the plea offer concerning a district attorney’s views of a defendant’s future dangerousness is substantially outweighed by the danger of “unfair prejudice, confusion of issues, or misleading the jury.” Tex.R.Crim. Evid. 403.⁶ Therefore, the trial court did not err in refusing appellant’s request to introduce evidence of the State’s plea offer. Appellant’s sixteenth point of error is overruled.

In appellant’s seventeenth point of error, he complains the trial court erred in admitting appellant’s fingerprints into evidence as those prints were forcibly taken in violation of appellant’s right against self-in-erimination under Article I, section 10 of the Texas Constitution. Appellant’s objection on appeal does not comport with his objection at trial which was based solely upon Fifth Amendment grounds. Tex.R.App.Proc. 52(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990). Appellant’s seventeenth point of error is overruled.

II. CLOSING ARGUMENTS

In appellant’s fourth and fifth points of error, he contends the prosecutor committed fundamental error and intentionally engaged in misconduct during his closing argument. The alleged improper argument occurred as follows:

[STATE’S ARGUMENT:] Mr. Griffith tells you that he jumped the fence along with this guy named Larry. And you know what’s so significant about Mr. Griffith’s testimony is that he says that [appellant] and somebody else jumped the fence, at about 12 to fifteen seconds later he hears a single gunshot.

[Appellant] wants you to believe that he negotiated with Mr. Wilcox. That all this as he said: Is he okay? Is he okay?

How much time? 12 to 15 seconds. What’s going on through his mind at the time? And you know, when he left that Fayco Men’s Department Store he forgot his keys. But [you] know what he didn’t forget was his gun, that he didn’t forget. He forgot his keys but not the gun. This loaded gun with a .32 [caliber] jacketed bullet that he’s not going to forget that. Now, he’s trying to get away. He knows the security guards are coming and he knows the police are coming. And at that point he’s in the field. There aren’t any witnesses except for Mr. Wilcox. No witnesses. And he needs to get away because, you know, there’s people that are after him at the men’s department store where nobody knew what was going on. Now, he knows people are after him and heeds [sic] the truck.

Now, the portions that are redacted under the law, as the law provides me that I have to do so, what do I leave out? He says the man was on top of a tent. How convenient. Man is found. Mr. Wilcox is found on top of a tent. That’s where he got shot. He fell on it. I excised and I asked him politely, I excise politely now in order for you to be able to find the defendant not guilty of capital murder you got to be able to believe him. You got to be able to say, [appellant,] you’re telling the truth. You’ve got to be able to believe him.

Now, do you think that in the course of trying to get away and he’s got a loaded gun, he asks Mr. Wilcox can you please give me your keys to your truck? You really think that happened?

So in order for you to believe everything he says, you’ve got to be able to believe him.

[APPELLANT’S COUNSEL:] Your Hon- or, I would object for the record in that that is a transfer of burden of proof in this case. That is where a person—

[THE STATE:] Your Honor, can I have an objection as opposed to a narrative objection?

THE COURT: Objection?

[APPELLANT’S COUNSEL:] Objection, it’s transfer of burden of proof contrary to the law as stated in the Court’s Charge.

THE COURT: To that extent, to the extent that might call for, the objection is sustained. The jury will be instructed to rely upon the Charge that puts the full burden of proof upon the State.

Proceed with the argument.

[THE STATE:] I accept the burden, but you’ve got to be able to believe him. (Emphasis added).

Appellant contends that the prosecutor’s argument amounted to fundamental error, and therefore no objection is necessary to preserve error.⁷ To be considered appropriate, jury argument must be limited to a summation of the evidence, reasonable deductions from the evidence, an answer to an argument by opposing counsel, or a plea for law enforcement. Hughes v. State, 878 S.W.2d 142, 157-158 (Tex.Crim.App.1992) (opinion on rehearing); Moody v. State, 827 S.W.2d 875, 894 (Tex.Crim.App.), cert. denied, — U.S. -, 118 S.Ct. 119, 121 L.Ed.2d 75 (1992). The State contends that their argument in this instance was an answer to an argument by opposing counsel. During closing argument immediately before the State’s alleged improper argument, appellant made the following argument:

Officer Williams said that this was the location where the (sic) found a truck, almost twice the distance from where Mr. Griffith said that he heard the voices, twice the distance on this photograph by an officer who stakes out the scene.

Now, I don’t know how a person who describes shadows acting frantically seated here, shadows basically dancing in the cab of a vehicle in this area, how a person determines when the headlights of that vehicle are on and supposedly coming towards him in this direction, how a person can determine not only how many people are in the cab of that truck, but the races and the number of voices heard, unless he finds out obviously afterwards and he knew that there were two people chased into the woods trying to get both suspects. I don’t know if it makes sense. I don’t think it bears up to the logic. But it’s your decision. If Griffith is to believed (sic) and if you believe him, his testimony beyond a reasonable doubt, then [appellant] is wrong, [appellant’s] testimony. He said that hey, Larry was inside the vehicle.

The arguments by counsel indicate that appellant did put the credibility of appellant’s confession and Griffith’s testimony into issue, forcing the jury to decide whom they believed. The State properly notes that their argument is not a shift in the burden of proof but rather a challenge to the credibility of appellant’s exculpatory statements in his confession. Because appellant’s counsel argued to the jury that they had to decide whom to believe, the State was also free to answer this argument and contend that appellant was not telling the truth.

In the fifth point of error, appellant contends the State committed prosecutorial misconduct by continuing to argue after the Court sustained appellant’s objection that “I accept the burden, but you’ve got to be able to believe him.” Appellant’s argument is based on a belief that the trial court’s ruling in this cause was to prevent the State from attacking appellant’s credibility. However, such was not the court’s ruling. The trial court’s ruling was limited on its face to an improper shift in the burden during arguments, and not the State’s attack on appellant’s credibility.⁸ Because the prosecutor’s additional arguments were in response to the arguments of defense counsel, the trial court’s limited ruling was correct. Appellant’s fourth and fifth points of error are overruled.

III. PAROLE LAW

In appellant’s sixth through twelfth points of error, he complains of his inability to inform the jury, through testimony or an instruction, of the application of parole laws in Texas. In appellant’s sixth point of error, he complains the trial court erred in preventing him from introducing the testimony of Dr. Fason that appellant would serve 15 years of his sentence before becoming eligible for parole. In his seventh through twelfth points of error, appellant argues that article 87.071 of the Texas Code of Criminal Procedure is violative of the Equal Protection Clause of the Fourteenth Amendment; the Equal Protection Clause of article I, sections 3 and 3a of the Texas Constitution; the Due Process Clause of the Fourteenth Amendment; the Due Course of Law provision of article I, sections 13 and 19 of the Texas Constitution; the Cruel and Unusual Punishment provisions of the Eighth Amendment; and the Cruel and Unusual Punishment provision of article I, section 13 of the Texas Constitution, respectively.

We have addressed appellant’s contention in his sixth point of error in previous cases and held that it was not error for a trial court to refuse testimony be admitted concerning parole. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992). Traditionally, in Texas, parole is not a matter for a jury’s consideration in a capital murder trial. Id.; Ellason v. State, 815 S.W.2d 656, 665, n. 5 (Tex.Crim.App.1991); Stoker v. State, 788 S.W.2d 1, 16 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990). The subject is not proper even in the context of the second special issue because when a jury is considering whether a defendant represents a continuing threat to society, the term “society” includes both the prison and non-prison populations. Jones, 843 S.W.2d at 495; Boyd v. State, 811 S.W.2d 105, 118 n. 12 (Tex.Crim.App.1991). Therefore, as appellant’s points of error have been previously raised and rejected, his sixth point of error is overruled.

A. Texas Constitutional Challenges

In appellant’s eighth, tenth, and twelfth points of error he contends his inability to inform the jury concerning parole violates the Equal Protection Clause, the Due Course of Law Clause, and the Cruel or Unusual provisions, respectively, of the Texas Constitution. Appellant recognizes our general ability to interpret our State Constitutional guarantees as broader than the Federal Constitution. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

1. Texas Equal Protection Clause

Appellant contends that the Legislature’s decision to keep parole information from capital juries yet inform non-capital juries of the same violates the Equal Protection Clause of the Texas Constitution.⁹ In determining whether a criminal statute violates the Equal Protection Clause of article I, section 3 of the Texas Constitution, we begin with the presumption that the purpose of the Statute is constitutional. HL Farm Corp. v. Self, 877 S.W.2d 288, 290 (Tex.1994); Whitworth v. Bynum, 699 S.W.2d 194, 196 (Tex. 1985); Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979) (on rehearing); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561 (1916); see Texas Public Building Authority v. Mattox, 686 S.W.2d 924, 927 (Tex.1985); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The party challenging the statute on equal protection grounds has the burden to show that the statutory classification is not rationally related to a legitimate state interest where interests other than fundamental rights or suspect classification are affected. HL Farm Corp., 877 S.W.2d at 290; Whit-worth, 699 S.W.2d at 196; Sullivan v. University Interscholastic League, 616 S.W.2d 170, 172 (Tex.1981).¹⁰

However, the classification must discriminate against similarly situated individuals. See Ex parte Spring, 586 S.W.2d 482, 486 (Tex.Crim.App.1979) (comparison of class C misdemeanor defendants whose cases filed in municipal court and those whose cases were filed in justice court). In this instance appellant’s equal protection complaint is not among similarly situated individuals, that is, he is treated the same as all capital defendants.¹¹ See Knox v. State, 744 S.W.2d 53, 63 (Tex.Crim.App.1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2834, 100 L.Ed.2d 934 (1988) (entire capital punishment scheme is different than non-capital punishment scheme); Butler v. State, 872 S.W.2d 227, 240 (Tex.Crim.App.1994) (capital sentencing scheme that permits jury consideration of unadjudieated offenses which differs from punishment scheme in non-capital cases does not violate federal equal protection); Janecka v. State, 739 S.W.2d 813, 833 (Tex.Crim. App.1987) (differing procedures of jury voir dire in capital and non-capital cases does not violate federal equal protection). Appellant’s eighth point of error is overruled.

2. Other Texas Challenges

In appellant’s tenth and twelfth points of error, he argues that failure to instruct the jury on parole violates the due course of law clause of the Texas Constitution and the prohibition against Cruel or Unusual Punishment in the Texas Constitution. However, appellant’s arguments are based entirely upon the federal constitution.¹² Appellant proffers no argument or authority of how the protection offered by the Texas Constitution differs from the protection guaranteed by the U.S. Constitution. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992), cert. denied, — U.S. -, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993). We are not inclined to make appellant’s arguments for him. Id.; Tex.R.App.Proc. 74 and 210. Appellant’s tenth and twelfth points of error are overruled.

B. Federal Constitutional Challenges

1. Equal Protection Clause

In appellant’s seventh point of error, he complains the differing instructions to capital and non-capital defendants in Texas violates the Equal Protection Clauses of the U.S. Constitutions.¹³ We disagree. In Knox v. State, we noted that the “entire sentencing structure and punishment scheme in capital cases has always been different from the sentencing procedure in non-capital cases-” 744 S.W.2d at 63. This Court further held in Knox that these differing procedures concerning parole instructions do not violate the Equal Protection Clause. Id.; see Butler, supra; Janecka v. State, supra.14 Appellant’s seventh point of error is overruled.

2. Due Process

In the ninth point, appellant asserts that failure to inform the jury of the nature of parole for capital defendants violates the Due Process Clause of the U.S. Constitution. During trial appellant’s expert, Dr. Fason, testified concerning appellant’s mental condition. In Dr. Fason’s opinion appellant suffered from an antisocial reaction. Appellant’s prognosis was also discussed. Dr. Fa-son testified as follows,

The prognosis is kind of interesting because the psychiatric records and treating individuals’ records by and large has been very, very poor. They don’t fit into the psychiatric mode. They don’t have a respect for the truth that is necessary when you depend upon words for communication and thereby enlarge just using words to manipulate people rather than communicate. And so it’s the ordinary techniques and methods of psychiatry are not very helpful. As far as the prognosis is concerned, the most interesting thing about it, even though psychiatry has not by and large been affected there are some exceptions to that. It has been that you see a lot of people in their twenties with this diagnosis. Anyone in the criminal justice system who has been here a while sees an awful lot of people who are 18 to 29 that would fall into that category. When people get past the age of 30 you don’t see that many in the criminal justice system. And past age 40 you rarely ever see someone with this diagnosis past the age of 40.

Appellant argues the recent Supreme Court plurality decision in Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) and their action in Price v. North Carolina, — U.S. -, 114 S.Ct. 2777, 129 L.Ed.2d 888 (1994), indicate that a formal instruction concerning a defendant’s parole eligibility may be required under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In Simmons v. South Carolina, supra, a plurality of the Supreme Court held that “where the [capital] defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” — U.S. at-, 114 S.Ct. at 2190. In Price, the Supreme Court reversed, vacated, and remanded Price’s ease to the North Carolina Supreme Court for further action not inconsistent with Simmons. Price, unlike Simmons, was parole eligible in twenty years.

Initially, we must address appellant’s contention that the Supreme Court’s action in Price indicates that Simmons has been extended to parole eligible defendants. We absolutely reject this premise. The Supreme Court’s action in Price does not hold any precedential value or send a “signal” as to the proper disposition of Price’s ease. In fact, the Supreme Court of North Carolina has again recently reaffirmed Price’s case in light of Simmons. State v. Price, 337 N.C. 756, 448 S.E.2d 827 (N.C.1994). We do agree with appellant that Simmons indicates that in some instances a jury may be required to be informed of a defendant’s parole eligibility.¹⁵ However, in Texas this is generally not the case.

Initially, we note that the Texas Constitution prohibits, without legislative action, the jury to consider parole in any manner when considering whether a capital defendant should be sentenced to life or death. Elliott v. State, 858 S.W.2d 478, 489 n. 7 (Tex.Crim.App.), cert. denied, — U.S. -, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993); Boyd v. State, 811 S.W.2d 105, 121 (Tex.Crim.App. 1991). Absent a federal constitutional requirement to the contrary, it will remain the policy of Texas not to officially inform jurors of the actual consequences of a life sentence.¹⁶ Prior to Simmons, the Supreme Court had indicated that whether a jury was informed concerning parole was traditionally a determination left to the States. See Simmons, — U.S. at -, 114 S.Ct. at 2196 (“It is true that [California v.] Ramos[, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983),] stands for the broad proposition that we generally will defer to a State’s determination as to what a jury should and should not be told about sentencing. In a State in which parole is available, how the jury’s knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole.”); — U.S. at-, 114 S.Ct. at 2200 (O’Connor, J., concurring); California v. Ramos, 463 U.S. at 1013, n. 30, 103 S.Ct. at 3460, n. 30 (1983) (“Many state courts have held it improper for the jury to consider or to be informed — through argument or instruction — of the possibility of commutation, pardon, or parole.”); Knox v. Collins, 928 F.2d 657, 660 (5th Cir.1991) (Constitution does not compel instruction on parole.); King v. Lynaugh, 850 F.2d 1055, 1059-1061 (5th Cir. 1988) (en banc), cert. denied, 489 U.S. 1093, 109 S.Ct. 1568, 108 L.Ed.2d 930 (1989) (Federal Constitution does not require voir dire inquiry concerning potential jurors views of parole.); Andrade v. McCotter, 805 F.2d 1190, 1192-1193 (5th Cir.1986) (No constitutional violation to the denial of a parole instruction under the Cruel and Unusual Punishment Clause of the Eight Amendment and the Due Process Clause of the Fourteenth Amendment.); O’Bryan v. Estelle, 714 F.2d 365, 388-389 (5th Cir.1983) (An instruction on parole is not required under the Due Process Clause of the Fourteenth Amendment).

The question then becomes when does the Due Process Clause require the jury to be informed of a defendant’s parole eligibility in contravention of our State Constitution. We note that the Simmons opinion on its face seems to be limited to states which have life without parole and not to states which have life with parole eligibility.¹⁷ Simmons, — U.S. at -, 114 S.Ct. at 2200 (O’Connor, J., concurring) (“In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact.”); see Allridge v. Scott, 41 F.3d 213, 220-222 (5th Cir.1994) (“We therefore read Simmons to mean that due process requires the state to inform a sentencing jury about a defendant’s parole ineligibility when, and only when, (1) the state argues that a defendant represents a future danger to [free] society, and (2) the defendant is legally ineligible for parole.” [footnotes omitted.]); Kinnamon v. Scott, 40 F.3d 731, 733 (5th Cir.1994) (“If we were to ignore the absence of a contemporaneous objection and the bar of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we would not extend Simmons beyond cases in which the sentencing alternative to death is life without parole.”); Ingram v. Zant, 26 F.3d 1047, 1054 n. 5 (11th Cir.1994) (Simmons was not applicable in Georgia “because prior to May 1, 1993, Georgia law did not provide for life imprisonment without parole.”); State v. Skipper, 337 N.C. 1, 446 S.E.2d 252 (1994) (Simmons inapplicable because appellant was eligible for parole); Ramdass v. Commonwealth, 248 Va. 518, 450 S.E.2d 360, 361 (1994) (Simmons only applicable if Radmass was ineligible for parole at time of conviction.); Wright v. Commonwealth, 248 Va. 485, 450 S.E.2d 361, 362 (1994) (same); see also State v. Southerland, 447 S.E.2d 862 (S.C.1994) (trial courts are now required to inform the jury, upon request of counsel, a defendant’s parole ineligibility following Simmons. ); but see Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994) (Simmons was held applicable). However, this is not the only distinction that can be drawn between the Texas sentencing system and Simmons.

In Simmons the Supreme Court relied upon their earlier plurality opinion in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) in holding the South Carolina procedure violated due process. Simmons, — U.S. at-, 114 S.Ct. at 2192. In Gardner a plurality of the Court held that a defendant could not be executed “on the basis of information which he had no opportunity to deny or explain.” 430 U.S. at 362, 97 S.Ct. at 1207. There the trial court ordered a presentence investigation report to be conducted while the jury was deliberating.¹⁸ 430 U.S. at 352-353, 97 S.Ct. at 1201-02. The jury returned an advisory verdict of life. Some three weeks later, the trial court disregarded the jury’s advise and sentenced Gardner to death. This sentence was in part based upon the factual information contained in the presentence investigation report, a portion of which was confidential and not disclosed to Gardner’s defense counsel. Gardner was denied due process because the trial court relied upon relevant evidence which Gardner had no opportunity to deny or explain. 430 U.S. at 362, 97 S.Ct. at 1206-07. Clearly it cannot be true that the Due Process Clause commands a trial court or an attorney to correct community misunderstandings concerning the judicial system, unless those misunderstandings are somehow injected into the trial by one of the parties. Gardner, therefore, indicates that a jury or judge cannot determine a defendant’s sentence based upon evidence or information presented at trial which the defendant has not been given an opportunity to rebut or explain. The critical question thus becomes, what information injected by the prosecution in South Carolina did Simmons not have the opportunity to rebut or explain.

In South Carolina, the jury determines whether a defendant should be sentenced to death. S.C.Code Ann. § 16-3-20(0 (Law. Co-op. 1976). In Simmons the prosecution urged the jury to vote for the death penalty because Simmons would be released from prison.¹⁹ The Court noted that the prosecutor argued that Simmons’ “future dangerousness was a factor for the jury to consider when fixing the appropriate punishment.” — U.S. at-, 114 S.Ct. at 2190. “In this case, the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury’s deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” — U.S. at -, 114 S.Ct. at 2193; see — U.S. at-, 114 S.Ct. at 2199 (Ginsburg, J., concurring) (“When the prosecution urges a defendant’s future dangerousness as cause for the death sentence, the defendant’s right to be heard means that he must be afforded an opportunity to rebut the argument.”); — U.S. at -, 114 S.Ct. at 2200 (O’Connor, J., concurring) (“But ‘where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty ... ’ ”). In fact this was Simmons’ very argument to the Supreme Court. He “argued that, in view of the public’s apparent misunderstanding about the meaning of ‘life imprisonment’ in South Carolina, there was a reasonable likelihood that the jurors would vote for death simply because they believed, mistakenly, that [he] eventually would be released on parole.” — U.S. at-, 114 S.Ct. at 2191.

More troubling in South Carolina was the apparent absence of procedural protections to prevent a jury’s misunderstanding of parole. In Simmons’ trial, “defense counsel was forbidden even to mention the subject of parole, and expressly was prohibited from questioning prospective jurors as to whether they understood the meaning of a ‘ “life” ’ sentence under South Carolina law.” — U.S. at-, 114 S.Ct. at 2190. Simmons was barred from even inquiring whether potential jurors could disregard the subject of parole in determining his appropriate punishment. Simmons, — U.S. at-, 114 S.Ct. at 2190. In Texas, however, we have provided numerous safety measures to prevent such a misunderstanding. While our juries are not informed of a meaning of a life sentence, Boyd, 811 S.W.2d at 118-119, counsel is permitted to examine each prospective juror extensively about whether they can obey an instruction forbidding their consideration of parole in their deliberations, and jurors unable to set aside parole from their consideration of the sentence are challengea-ble for cause. Jackson v. State, 822 S.W.2d 18, 27 (Tex.Crim.App.1991), cert. denied, — U.S. -, 113 S.Ct. 3034, 125 L.Ed.2d 722 (1993); Felder v. State, 758 S.W.2d 760, 762-67 (Tex.Crim.App.1988); Ellason v. State, 815 S.W.2d 656, 665-666 (Tex.Crim.App. 1991); Mays v. State, 726 S.W.2d 937, 950 (Tex.Crim.App.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1020 (1988). Additionally, the State is not permitted to argue to the jury that a defendant should be sentenced to death because he will be released from prison on parole.²⁰ Franklin v. State, 693 S.W.2d 420, 429 (Tex.Crim.App. 1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986).²¹ And finally, were a jury to consider parole in its deliberations a defendant may be entitled to a new trial. Tex.R.App.Proc. 30(b)(7); Buentello v. State, 826 S.W.2d 610, 610-614 (Tex.Crim. App.1992); Ex parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App.1990); Callins v. State, 780 S.W.2d 176, 191 (Tex.Crim.App. 1986), cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990); Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App.1984).²²

In the instant case, the issue of appellant’s potential early release from prison based upon parole, pardon or commutation, was not placed before the jury either through argument or evidence.²³ Therefore, due process did not require that appellant be permitted to inform the jury of the meaning of “life” imprisonment. Because Texas does not allow parole information to enter the jury’s deliberations, a defendant is not sentenced based upon information which he has had no opportunity to rebut or explain.²⁴ Appellant was not denied due process of law when the trial court refused to instruct the jury on parole. The trial court properly followed the Texas Constitutional commands in prohibiting parole from being considered by a capital jury. Appellant’s points of error are overruled.

3. Eighth Amendment

In appellant’s eleventh point of error, he contends that failure to inform the jury about parole violated the Eighth Amendment. This contention was raised and rejected in Elliott v. State, 858 S.W.2d 478, 489-490 (Tex.Crim.App.1993). Simmons was confined to Due Process analysis only, and the Court expressly stated that they were not addressing any Eighth Amendment claims. — U.S. at-, 114 S.Ct. at 2193, n. 4. We note, however, that the concept of parole eligibility “bears no relationship to the nature of the offense or the character of the offender.” Andrade v. State, 700 S.W.2d at 590 (Teague, J., concurring); see also California v. Ramos, 463 U.S. 992, 1021, 103 S.Ct. 3446, 3464, 77 L.Ed.2d 1171 (1983) (Marshall, J. dissenting) (“[The possibility of parole or commutation] bears no relation to the defendant’s character or the nature of the crime, or to any generally accepted justification for the death penalty.”)²⁵ Appellant’s twelfth point of error is overruled.

IV. CHARGE ISSUES

In appellant’s thirteenth through fifteenth points of error, he complains the trial court erred in overruling Ms proposed instruction concerning mitigating evidence, in overruling his objection to the instruction given, and in refusing to include his fourth special issue, respectively. Appellant’s request for a mitigating instruction is based upon Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).²⁶ Because we have previously approved of the identical nullification instruction given in tMs case, appellant’s thirteenth and fourteenth points of error are overruled. Riddle v. State, 888 S.W.2d 1, 8 (Tex.Crim.App.1994); Goynes v. State, No. 71387 (Tex.Crim.App. delivered Dec. 12, 1994).²⁷ We have also previously held that a trial court does not err in submitting a “nullification instruction” rather than a separate special issue. Robertson v. State, 871 S.W.2d 701, 710 (Tex.Crim. App.1994). Appellant’s fifteenth point of error is overruled.

In the eighteenth point of error, appellant argues the trial court erred in correcting an erroneous charge after deliberations began but prior to the jury’s verdict. The trial court submitted conflicting instructions to the jury. The court first instructed the jury that they cannot consider the extraneous offenses for purposes of answering the special issues unless they find the extraneous offenses were committed by appellant beyond a reasonable doubt. The court then instructed the jury that they could only consider the extraneous offenses when passing upon the weight of “said testimony” and for no other purpose.²⁸ After arguments, the jury began deliberations, and one hour later recessed for lunch. At that point the trial court removed the second conflicting instruction. On appeal, appellant does not object to the content of the corrected charge. At trial, appellant did not object to the charge being altered after arguments had begun. Appellant mentioned that there were possible objections, but he failed to make any.²⁹

Article 36.16 of the Texas Code of Criminal Procedure has been interpreted to permit a trial court to withdraw and correct its charge if convinced an erroneous charge has been given.³⁰ Bustillos v. State, 464 S.W.2d 118, (Tex.Crim.App.1964); Nowlin v. State, 76 Tex.Cr.R. 480, 175 S.W. 1070, 1072 (1915). Appellant argues these cases should be abandoned because to permit the revision of the charge after argument has begun is to also permit sloppy lawyering.

In 1913, the Texas Legislature amended the procedures relating to jury charges enacting article 737a of the Code of Criminal Procedure. Tex.S.B. 166 (1913). In 1915, this Court recognized that if interpreted literally, the court would have “no right over appellant’s objection to change his charge or give any additional charge, in any contingency after the argument has been concluded, except those mentioned” in the article. Nowlin, 175 S.W. at 1072. Nevertheless, the Court held that,

taking all of our statutes and previous decisions into consideration, and the purpose and object of the legislature in making the changes by said act of 1913, said article 737a should not be construed to prohibit the court absolutely under all circumstances from changing or adding to his charge.

Id. This has remained the law in Texas. See Bustillos, 464 S.W.2d at 125-126 (“In light of purpose of [art. 36.16] the court may before verdict withdraw and correct its charge if convinced an erroneous charge has been given.”); Chambers v. State, 379 S.W.2d 907, 908 (Tex.Crim.App.1964) (“If the matter is before us, we find no error in the court’s amending his charge in order to correctly state the law.”); Hill v. State, 92 Tex.Crim. 312, 243 S.W. 982, 983 (App.1922) (“... we think it not open to question as to the right of the trial court to withdraw his charge after the conclusion of the argument .. ”); Jacobs v. State, 213 S.W. 628, 628-629 (Tex.Crim. App.1919) (appellant may waive right to complain of agreed alteration in charge after jury arguments); Gaines v. State, 710 S.W.2d 630, 632-633 (Tex.App. — Corpus Christi 1984, pet. refd); Morlett v. State, 656 S.W.2d 603, 606 (Tex.App. — Corpus Christi 1983, no pet.); Smith v. State, 635 S.W.2d 591, 593 n. 1 (Tex.App. — Dallas 1982, no pet.) (on rehearing); see Murray v. State, 857 S.W.2d 806, 808-809 (Tex.App. — Fort Worth 1993, no pet.) (late supplementation of charge, over objection, which undercut defendant’s defense and jury argument denied defendant fair trial); Moore v. State, 848 S.W.2d 920, 922 (Tex.App. — Houston [1st Dist.] 1993, pet refd) (not permissible where amended charge was to defendant’s detriment and over his objection). In urging this Court to abandon stare decisis, appellant argues that continuing the practice of correcting erroneous jury instructions after arguments are concluded will encourage “sloppy” lawyering. However, appellant’s concern is empirically unfounded, as is illustrated by the few cases complaining of a trial court’s correction of an erroneous charge. We are not inclined to overrule these precedents based upon appellant’s arguments in this case. Appellant’s eighteenth and final point of error is overruled.

Appellant’s conviction and the judgment of the trial court are affirmed.

1 . Appellant confessed in part,

We ran around the [KMart] building into the woods. We ran into a truck that was parked under a tree. I saw a white man laying down on the ground. The man was on top of a tent. The man jumped up and asked what we were doing. Larry told the man give me your keys and the man said “my front end messed up." Larry hit the man and they started wressling (sic). The man looked over at me and I pulled the gun. I asked him politely to give us the truck. The man grabbed my hand and started to wrestle. The man ran back to the truck where Larry was. As I walked up on the truck telling the man we do not want to hurt you because the police behind us. We just need a ride. By this time the man grabbed my arm again and I got loose. I started backing up and the man started towards his truck that Larry was in. The police pulled up and Larry pulled the truck back up. By this time the man grabbed Larry by the neck. Larry got loose from him. The man grabbed me by the leg and I shot him in the arm. I asked the man four times "is you okay.” He stated "yes.” I started to run and I throwed (sic) the pistol down on the ground. Larry stopped and picked the pistol up and stated "Let’s split the money up.” As we split the money up we went our separate ways.

2 . Appellant was indicted for the murder of James Wilcox while in the course of committing or attempting to commit the robbery of Wilcox.

3 . Appellant’s complaint on appeal is only that the evidence is not relevant. There is no argument that the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Crim.Evid. 403.

4 . Generally, evidence of a plea of guilty or nolo contendere which is subsequently withdrawn or evidence of statements made dining plea negotiations are not admissible against a defendant. Tex.R.Crim.Evid. 410. However, in this instance it was appellant and not the State that sought the admission of the terms of the State's plea offer.

5 . "Claim” is defined by Black’s Law Dictionary (5th Ed. 1983) as,

To demand as one’s own or as one’s right; to assert; to urge; to insist. Cause of action. Means by or through which claimant obtains possession or enjoyment of privilege or thing. Demand for money or property, e.g. insurance claim.

6 . There also exists a separate policy reason to discourage the admission of those plea offers. If we were to permit the admission of such evidence, the State would be ably discouraged from making such offers in the future, and plea bargaining is essential to the administration of justice in America. Moss, 860 S.W.2d at 197; see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Verdoom, 528 F.2d 103, 107 (8th Cir.1976); Richardson v. State, 667 S.W.2d 268, 269 (Tex. App. — Texarkana 1984, pet. ref'd).

7 . Appellant's complaint is based upon fundamental error because he failed to object again to the State's alleged improper shift in the burden.

8 . Nothing in this opinion is intended to limit the State's rights during closing argument to attack the veracity of a defendant who takes the stand or of the veracity of a defendant's exculpatory statement in a confession that is admitted at trial. See Satterwhite v. State, 858 S.W.2d 412, 424-425 (Tex.Crim.App.1993) (state may argue that witnesses for defense are not worthy of belief); Greer v. State, 523 S.W.2d 687, 690-691 (Tex. Crim.App.1975) (Where a defendant takes the witness stand and his testimony is clearly contrary to the State's evidence, it is not reversible error for the prosecutor to attack the veracily of the defendant.)

9 . "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” Tex. Const, art. I, § 3. "Equality under the law shall not be denied or abridged because of sex, race, creed, or national origin.” Tex. Const, art. I, § 3a.

10 .Appellant’s brief includes some cases concerning an infringement of a “fundamental right,” thus requiring a strict scrutiny review. However, appellant makes no argument, and we can see none, that would indicate that capital defendants constitute a “suspect class.”

11 . If the statute applicable to non-capital defendants did violate the equal protection clause, the remedy would appear to be that no defendant would benefit from the statute. It would not be this Court’s duty to expand a legislative statute, but rather, to strike the statute completely.

12 . Appellant does assert that he believes the Texas Constitutional provision concerning Cruel or Unusual Punishment is broader than the federal constitution. His argument, though, ends there.

13 . In Texas, a jury which assesses punishment in a non-capital defendant's case is informed of the effect of “good conduct time" to the sentence and the potential of early release due to parole. Tex.Code Crim.Proc. ann. art. 37.07, § 4.

14 . While, it is unclear whether the Equal Protection Clause is even relevant to differing sentencing procedures for different crimes, there is a rational basis for the difference between capital and non-capital cases. In a capital crime the jury does not assess punishment, whereas, in a non-capital crime the jury does assess punishment. Compare Tex.Code Crim.Proc. ann. art. 37.07, § 4(a) (“In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court ...”) to art. 37.071(e) ("If the jury returns [the appropriate findings to the special issues,] the court shall sentence the defendant to death.”) Therefore, even if the Equal Protection Clauses were to apply, there is a rational basis for treating the two classes of defendant's differently.

15 . During punishment the trial court instructed the jury that "if the [jury] retum[s] a negative finding on any special issue submitted to [the jury,] the court shall sentence the defendant to the institutional division of the Texas Department of Criminal Justice for life." They were instructed "not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling in considering all the evidence before you and in answering the special issues.” The jury was further instructed that, during their "deliberations, you are not to consider or discuss any possible action of the Board of Pardons and Paroles division of the Texas Department of Criminal Justice or of the Governor, or how long the defendant will be required to serve to satisfy a sentence of life imprisonment.”

16 . While we may be sympathetic to the notion of having a jury informed of the State provisions for parole, such decision has been left to the legislature. Tex. Const, art. 4, § 11. We recognize, however, that other problems may surface if a jury were informed of the minimum number of years a capital defendant must serve before being eligible for parole. Our capital trials could quite possibly turn into mini-trials on prison space and parole policies and whether the legislature may in a future year reduce the minimum number of years prior to parole consideration. In his dissenting opinion to California v. Ramos, Justice Marshall indicated the problems with allowing juries to consider concepts of parole in their deliberations.

A jury simply has no basis for assessing the likelihood that a particular defendant will eventually be released if he is not sentenced to death. To invite the jury to indulge in such speculation is to ask it to foretell numerous imponderables: the policies that may be adopted by unnamed future Governors and parole officials, any change in the defendant's character, as well as any other factors that might be deemed relevant to the commutation and parole decisions.

463 U.S. 992, 1020-1021, 103 S.Ct. 3446, 3463 (1983) (Marshall, J. dissenting). Judge Teague indicated another concern in his concurring opinion in Andrade v. State,

In fact, advising jurors that a life penalty is theoretically modifiable, and thus not "final," might incline them to approach their fact finding duty with less appreciation for the gravity of the answers to the submitted questions and for the moral responsibility reposed in them as fact finders. In short, such an instruction disclosing the Governor’s power to commute a life sentence might operate to a defendant’s severe disadvantage and to his extreme prejudice.

700 S.W.2d 585, 590 (Tex.Crim.App.1985) (Teague, J. concurring).

17 . "Judge Clinton's dissent contends that Simmons should be interpolated to read that whenever the State argues future dangerousness, parole is an issue of which the jury must be informed. Op. at 870. This proposition is supported in greater part by Justice Scalia's dissent than the plurality or concurring opinions of the Court. In fact to read Simmons so broadly would be to ignore the basic holding of the plurality opinion and Justice O'Connor's concurring opinion. The plurality opines, "We hold that where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Simmons, - U.S. at-, 114 S.Ct. at 2190. Justice O'Con-nor agreed and similarly narrowed what she would hold, asserting that "due process requires that the defendant be allowed to [inform the jury of parole] in cases in which the only available alternative sentence to death is life imprisonment without the possibility of parole” and the prosecution argues future dangerousness. Simmons, ■ — ■ U.S. at-, 114 S.Ct. at 2201 (O'Connor, J. concurring).

While we believe Simmons is distinguishable based upon this fact alone, we also believe the underlying rationale for the Supreme Court in Simmons based upon Gardner, supra, is inapplicable to Texas jurisprudence.

18 . In Florida, the jury verdict at punishment merely advises the trial court of the defendant's sentence. Gardner, 430 U.S. at 352, 97 S.Ct. at 1201-02.

19 . The concept of future dangerousness throughout the opinion in Simmons is different than that in Texas in one important respect. In South Carolina, the prosecutor is urging the jury to sentence an individual to death because he will at some future date be released from prison. The plurality opinion complained that prosecutors in South Carolina “urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison." Simmons,-U.S. at-> 114 S.Ct. at 2193. In her concurring opinion. Justice O’Connor characterized South Carolina's argument as attempting to “show that [Simmons was] a vicious predator who would pose a continuing threat to the community.” - U.S. at -, 114 S.Ct. at 2200.

In Texas, a prosecutor is urging a jury to answer a specific question, called "future dangerousness,” in the affirmative. The question asks "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Code Crim.Proc. ann. art. 37.071 § 2(b)(1) and 37.0711 § 3(b)(2). "Society” has been defined to include both prison and non-prison populations. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1991), cert. denied, - U.S. -, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); Boyd v. State, 811 S.W.2d 105, 118 n. 12 (Tex.Crim.App.), cert. denied, 502 U.S. 971, 112 S.Ct. 448, 116 L.Ed.2d 466 (1991). The argument in Texas by the prosecutor is that the defendant will commit criminal acts of violence whether he is in prison or out of prison. This question is much more abstract than that asked in the argument urged in South Carolina. See Allridge v. Scott, 41 F.3d 213, 222 n. 12 (5th Cir.1994) ("We note that Simmons particularly applies to those cases in which the state argues that the defendant is a future danger to free society. But when the state argues that the defendant poses a future danger to everybody, fellow inmates included, then Simmons is inapplicable because whether the defendant is eligible for parole is irrelevant.” [cite omitted.]).

20 . In non-capital cases, prior to the constitutional amendment, it has traditionally been error for a prosecutor to urge a jury to consider parole when they are determining the appropriate sentence of a defendant. See Roberts v. State, 800 S.W.2d 536, 538 (Tex.Crim.App.1990); Johnson v. State, 797 S.W.2d 658 (Tex.Crim.App. 1990); Rose v. State, 752 S.W.2d 529, 532 (Tex.Crim. App.1987) (on rehearing); Clark v. State, 643 S.W.2d 723, 725 (Tex.Crim.App. 1983) (panel opinion); Woemer v. State, 576 S.W.2d 85, 86-87 (Tex.Crim.App. 1979); Jones v. State, 564 S.W.2d 718, 720-721 (Tex.Crim.App. 1978); Clanton v. State, 528 S.W.2d 250 (Tex.Crim.App.1975); Marshbum v. State, 522 S.W.2d 900, 901 (Tex. Crim.App.1975); Hughes v. State, 493 S.W.2d 166, 169 (Tex.Crim.App.1973); Graham v. State, 422 S.W.2d 922, 927 (Tex.Crim.App.1968).

21 . This Court has occasionally found no error where parole was interjected into trial when the subject was initiated by appellant himself or where the State was answering an argument by defense counsel. See e.g., Coleman v. State, 881 S.W.2d 344, 358 (Tex.Crim.App.1994) (permissible answer to argument); Moody v. State, 827 S.W.2d 875, 894 (Tex.Crim.App. 1992) (parole discussed by appellant's expert on cross-examination without objection).

22 .We also recognize that were a prosecutor, in his or her arguments concerning the new special issue, to urge the jury not to give a defendant a life sentence because he would serve a limited number of years in prison, then Simmons may command that the jury be informed of the minimum prison terms for capital life prisoners. See Tex.Code Crim.Proc.Ann. art. 37.071 § 2(e) (jury is asked, “whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.”); Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994) (prosecutor argued that it was not a matter of whether defendant would get out but when, and somewhere down the road there would be more victims).

23 . See Madden v. Collins, 18 F.3d 304, 310 (5th Cir.1994) (Argument by prosecutor, "[a]nd if we don’t take him off the streets permanently by answering these questions yes, who will be next in that path?" and instruction by judge to jury not to consider possibility of parole were held not to be improper references to parole.)

24 . The number of years before a defendant is eligible for parole is not relevant to this due process analysis. The only question is whether parole is available, whether the State interjects the subject of parole into the trial, and whether safeguards exist in the State to prevent such information from becoming part of the sentencing process.

25 . In his dissent, Judge Maloney directs our attention to Legislative attempts and public movements urging "Truth in Sentencing.” Op. at 884-886. He contends further that a State policy of informing the jurors in capital cases of the minimum eligibility of parole would facilitate this "Truth in Sentencing.” Judge Maloney’s argument is strongly persuasive, if we were legislators and not jurists. The choice of determining what a jury should consider is generally legislative. See California v. Ramos, 463 U.S. 992, 1014, 103 S.Ct. 3446, 3460, 77 L.Ed.2d 1171 (1983) ("We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States.”) Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859 (1976) (“It seems clear that the problem [of channeling jury discretion] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.")

The dissent also contends that this evidence is mitigating and thus the jury should be instructed concerning the minimum incarceration terms for capital life prisoners. This evidence, however, does not concern "the character and record of the individual offender” or the “circumstances of the particular offense.” See Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1978); California v. Ramos, 463 U.S. at 1006, 103 S.Ct. at 3456 ("As with the Texas scheme, the California sentencing system ensures that the jury will have before it information regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant’s character, background, history, mental condition, and physical condition.”)

As the Supreme Court noted in Ramos, Our conclusion [that an instruction informing the jury of a governor’s power of commutation does not violate the Eighth and Fourteenth Amendments] is not intended to override the contrary judgment of state legislatures that capital sentencing juries in their states should not be permitted to consider the Governor’s power to commute a sentence. It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.

463 U.S. at 1013-1014, 103 S.Ct. at 3460. Judge Maloney’s compelling dissent should properly be reviewed and considered. However, the body to consider such an argument is the Legislature and the public and not ourselves.

26 . Appellant was tried in February of 1992. Because his trial occurred before September 1, 1993, appellant did not receive the new special issue concerning mitigation. See Tex.Crim.App. art. 37.071 § 2(e) (for offenses committed on or after September 1, 1991) and 37.0711 § 3(e) (for offense committed before September 1, 1991).

27 . As appellant received a proper nullification instruction, we need not reach the issue of whether he proffered sufficient evidence to raise a Penry issue sufficient to warrant an instruction. See Robison v. State, 888 S.W.2d 473, 486-487 (Tex.Crim.App.1994); Penry, 492 U.S. at 329, 109 S.Ct. at 2952; Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

28 . The problem in this instance concerns two conflicting instructions presented to the jury. The charge instructed the jury that:

You are further instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the answers to the special issues.

In the following page, which was removed, the jury was further instructed:

You are instructed that certain evidence was admitted before you in regards to defendant having been charged and convicted of an offense or other [sic] than the one for which he is now on trial.

Said evidence was admitted before you for purposes of aiding you if it does aid you in passing upon the weight you will give this testimony and you will not consider the same for any other purposes.

29 . Appellant’s attorney stated:

There are a number of issues Mat give rise to possible objection to increase perhaps if in fact if they started deliberating had made a decision on any particular aspect of this case. With the impact, for instance, might be on argument concerning extraneous offenses related to any particular issue whether or not some type of jeopardy has attached.

30 . Article 36.16 of the Code provides, in part:

After the argument begins no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury, or unless the judge shall, in his discretion, permit the introduction of other testimony.