I concur. As I understand it, the Court's opinion assumes without deciding that there was constitutional "error" in the court's charge and then decides what harm standard to apply to this unobjected-to constitutional error. The Court's opinion claims its decision "makes moot the issue presented in the State's" cross-petition for discretionary review which is whether there really was constitutional "error in the court's charge." The State essentially claims the issue of harm need not be addressed because there was no error.

The Court's opinion does not make moot the issue presented in the State's cross-petition for discretionary review. The Court's opinion merely postpones deciding this issue. The Court should first address the issue of constitutional error and decide there is no constitutional error. And, assuming but not deciding that there is constitutional error, the Court's opinion also errs on the question of the applicable harm standard.

The trial court submitted the statutorily mandated parole charge without any objection from appellant. This charge generally instructs a jury on parole matters ⁽¹⁾ but also instructs the jury not to consider "the manner in which the parole law may be applied to this particular defendant." ⁽²⁾ This parole charge, among other things, instructs the jury that a defendant could earn good conduct time off the period of his incarceration. This portion of the parole charge, however, is misleading with respect to defendants such as appellant because they are ineligible to earn good conduct time off the period of their incarceration. See V.T.C.A.,Texas Government Code, Section 508.149.

Appellant claimed for the first time on appeal that this misleading portion of the parole charge deprived him of his liberty in violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the due course of law provisions of Article 1, Sections 13 and 19, of the Texas Constitution. The claimed constitutional violation apparently is based on speculation that the misleading portion of the parole charge might have caused the jury to increase appellant's sentence because of the jury's mistaken belief that appellant might earn good conduct time off the period of his incarceration even though the parole charge instructed the jury not to do this and even though there is no evidence that the jury did this anyway. ⁽³⁾

The Court of Appeals decided that as applied to appellant's case the misleading portion of the parole charge violated due process and due course of law constitutional guarantees. Jimenez v. State, 992 S.W.2d 633, 638 (Tex.App.--Houston [1^st Dist.] 1999). ⁽⁴⁾ The Court of Appeals also decided that this was an "error" in the jury charge. Id. Having thus characterized the error as "jury charge error," the Court of Appeals also decided that the unconstitutional-as-applied portion of the parole charge did not "egregiously harm" appellant under the analytical framework for assessing harm from "jury charge error" set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984) (op. on reh'g). Jimenez, 992 S.W.2d at 638-39.

Appellant filed a discretionary review petition in which he contends that instead of applying Almanza's harm analysis, the Court of Appeals should have applied the harm analysis for constitutional error set out in Tex.R.App.Proc. 44.2(a). The State filed a cross-petition for discretionary review in which it contends the Court of Appeals erred to decide the statutorily mandated parole charge as applied to appellant's case violated due process and due course of law constitutional guarantees. We granted both discretionary review petitions.

The Court's opinion ducks the question of error and addresses the question of harm. But, questions of harm generally do not arise unless an appellate court first finds error. There is, of course, nothing wrong with appellate courts sometimes assuming error and addressing harm especially when the latter is easier to decide than the former. ⁽⁵⁾

But, we did not grant discretionary review in this case to make our lives easier. ⁽⁶⁾ One of the reasons we granted discretionary review in this case is to resolve conflicts among various intermediate appellate courts on whether in cases like this the misleading portion of the parole charge is constitutional error and, if so, which harm standard applies. ⁽⁷⁾ By ducking the question of error, the Court's opinion does not resolve these conflicts.

Because the Court's opinion assumes but does not resolve the question of error, those intermediate appellate courts deciding that the misleading portion of the parole charge is not error may continue to do so. This means that similarly situated defendants may be treated differently depending on which judicial district their case is in. A defendant whose case is in a judicial district that holds there is no error will lose without a consideration of harm. An identically situated defendant whose case is in a judicial district that holds there is error could win with a favorable consideration of harm.

And, should this Court ultimately decide that application of the parole statute in cases like this is not error, then that would render moot the Court's decision in this case. And, should this Court ultimately decide that application of the parole statute in cases like this is error, then this Court will have to deal with a host of habeas corpus applications from defendants in those judicial districts that had held otherwise.

So the first question the Court should address in this case is, what is "due process of law"? Particularly does the parole charge statutorily mandated by Article 37.07, Section 4(a), violate "due process of law" by generally instructing a jury that a defendant "may earn time off the period of incarceration" through the award of good conduct time when the particular defendant in the case is statutorily ineligible to earn this good conduct "time off the period of incarceration"? From what I can tell some feel that application of the parole statute in cases like this is "unfair" and, therefore, violates "due process of law." We are going to have to do better than that.

The Fifth Amendment to the United States Constitution provides that no person shall be "deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Article 1, Section 19, of the Texas Constitution, provides that no "citizen of this State shall be deprived of life, liberty, [or] property" except by the "due course of the law of the land."

The Fifth Amendment's "due process of law" clause and the rest of the federal Bill of Rights originally were intended as a limitation only on federal action. The Fourteenth Amendment's "due process of law" clause is a federal guarantee meant "to check the injustices of the states" primarily on race issues through congressional action. ⁽⁸⁾ But, over time the federal courts have used the Fourteenth Amendment's "due process of law" clause to check perceived state injustices in many other areas and to make most of the federal Bill of Rights applicable to the states. ⁽⁹⁾ The term "due process of law" in the Fifth and Fourteenth Amendments to the federal constitution and the term "due course of law" in our state constitution mean the same thing. ⁽¹⁰⁾

Courts must keep several important things in mind when they interpret the "due process of law" clause. The vast majority of issues confronting our society were meant to be resolved through the legislative process; the constitution does not provide a remedy for every perceived injustice or unfairness in our society. ⁽¹¹⁾

The generality of the "due process of law" clause makes judicial interpretation difficult and it tempts the judiciary to interpret the clause according to the judiciary's own sense of fairness or justice. ⁽¹²⁾ The "due process of law" clause, however, is not a judicial license to usurp the legislative power simply because some legislative enactment offends a court's own "private notions of policy." ⁽¹³⁾

When the judiciary decides that a thing violates due process, it removes that thing from the legislative process for the people to decide through their right of self-government which "is just as important as any of the specific freedoms preserved in the Bill of Rights." ⁽¹⁴⁾ Deciding due process issues based on "private notions of policy" violates the peoples' right to self-government and also may actually threaten our liberty and freedom. ⁽¹⁵⁾

Because the judiciary usually has the last say, the only real check or balance on the judiciary's power to interpret and apply the vague contours of the "due process of law" clause is the judiciary's own sense of self-restraint. And, judicial restraint in interpreting the "due process of law" clause is necessary in part because of the extreme difficulty the people have in "correcting" a "bad decision."

"According to Bryce, then, Congressional statutes must be tested by the Constitution, judges are charged with doing the testing and ultimately the judges of the Supreme Court have the say. That testing and that say involve the activity of judgment, the art of interpretation. The Constitution which is to be interpreted is brief and general and leaves the judges enormous latitude. The subject matter over which this interpretation holds sway is not narrowly legal but broadly--indeed, well nigh exhaustively--political. What is more, those judges have virtually the last say on earth on these great political matters for the legislative power, in the full sense in which Locke meant the term, that is, the amending process [to the constitution], is exasperatingly difficult to convene and control. Notwithstanding Frankfurterian doctrines of judicial self-restraint, we believe Bryce's view to be an accurate view of the American Constitution and the `role of the judiciary' thereunder." (Emphasis in Original). ⁽¹⁶⁾

Courts should, therefore, interpret the "due process of law" clause with "restraint," "impartiality," and "humility" and with due regard for the peoples' right of self-government. ⁽¹⁷⁾ Courts abuse their power of judicial review to find a due process violation simply because they believe a particular legislative enactment is "unfair."

So, what is "due process of law?" The popular judicial conception has been that it is "the very essence of a scheme of ordered liberty," or that it is what is "implicit in the concept of ordered liberty," or that it is something without which "a fair and enlightened system of justice would be impossible," or that it is "essential fairness." ⁽¹⁸⁾ These vague and unprincipled formulations of "due process of law," however, are an invitation for courts to resolve due process issues based on their own "private notions of policy" primarily because "what `is implicit in the concept of ordered liberty' depends on who is doing the conceiving." ⁽¹⁹⁾

A more restrained and principled formulation of "due process of law" is required. For example, some of our earlier cases define "due process of law" as a person receiving whatever the constitution and state law--the "law of the land"--provide. See Steddum v. Kirby Lumber Co., 221 S.W. 920, 921-22 (Tex. 1920), and authorities cited; accord Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988) ("right" to peremptory challenges is violated "only if the defendant does not receive that which state law provides").

The historical record and in particular the events leading up to the adoption of the Fourteenth Amendment also support this view.

"The history of the South, however, had shown that, eaten up as it was by the cancer of slavery, which Lincoln reminded us was just as destructive of the masters as of the slaves, individuals in the oppressed class, or individuals not supportive of that oppression, were likely to be singled out for injustice contrary to the law which was otherwise, all right. It might be supposed that the equal protection clause particularly forbids discrimination by the law against a whole class of people--e.g., all who are black--whether that be a discrimination in the civil or the criminal law. The due process clause, on the other hand, says to the state, if you are forbidden to pass invidiously discriminatory legislation, you may be fully trusted to establish your own criminal justice system for yourselves provided, that whatever system you establish for yourselves you must be sure to give to each. You may not have a law which satisfies you and then get around it by taking life, liberty, or property--that is, executing, imprisoning, or fining--some black man without giving him that process which is due to him according to that law." (Emphasis in Original). ⁽²⁰⁾

The Interpretive Commentary to our "due course of law" provision in Article 1, Section 19, similarly states:

"This provision has been construed by the courts as affording several types of protection. It has been said that `when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by [this] the ancient and customary laws of the English people, or laws enacted by the Parliament. . . ., It was not in their minds, therefore, to protect themselves against enactment of laws by the Parliament of England.' (Citation Omitted).

"Therefore, originally the due process clause was construed as applying to the method of making a judicial or administrative decision. It applied directly to the machinery or procedure by which people were tried for crime, by which property rights were adjudicated, by which the powers of eminent domain and taxation were exercised. In short, legal proceedings were and are required to be conducted by the rules and forms established for the protection of private rights. Otherwise, life, liberty or property would be taken without due process of law so as to be violative of the fundamental principles." (Citation Omitted) (Emphasis Supplied).

Similarly, it also has been stated that a particular legislative enactment does not violate "due process of law" if the legislature had the power to enact it, the enactment does not violate some other explicit constitutional provision, and the accused got what he had a right to expect under that legislative enactment. For example,

"Perhaps Matthews understood Curtis in the following way: If one wants to know what is `due process' he looks first to the Constitution. The Constitution contains no list of processes which the due process clause allows or forbids, but that Constitution does forbid the government to do certain things and, surely, if the government behaves toward an accused in defiance of an explicit prohibition of the Constitution, the accused cannot be said to have been treated with due process of law. But the Constitutional limitations by no means exhaust the possibilities. If some process is nowhere mentioned in the Constitution and has always been a part of Anglo-American tradition then the accused got what he had a right to expect--that is, he got due process of law. But it would not be due process for the government to go against an accused in defiance of a specific statutory or constitutional provision simply because the process employed, while now prohibited, was once a part of the Anglo-American tradition. But if a process is not explicitly forbidden by statute or constitution and is wholly unheard of by the Anglo-American tradition or is sometimes and somewhere not, then it is due process of law as long as it is established in an orderly (i.e., lawful) way and is not in and of itself impermissible." ⁽²¹⁾

With these considerations in mind, we cannot conclude that the misleading portion of the statutory parole charge deprived appellant of his liberty without due process of law. The Legislature had the power to enact the statute. ⁽²²⁾ The statute does not violate any explicit provision of either the state or federal constitutions. Appellant received that process which was due him according to the statute; that is, appellant received what state law gave him a right to expect. ⁽²³⁾ The statute applies to all other defendants similarly situated to appellant, and there is no evidence of legislative vindictiveness with respect to these defendants. ⁽²⁴⁾ Though we may personally believe that application of the misleading portion of the parole charge to appellant's case is "unfair," we would in the final analysis have to abandon our judicial duty and apply our own personal policy preferences to decide that it violates "due process of law." ⁽²⁵⁾

It probably is necessary to measure the constitutionality of the parole charge against the United States Supreme Court's interpretation of "due process of law" in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Simmons was an extension of the Supreme Court's "death-is-different" mitigating evidence jurisprudence for capital cases. See Simmons, 114 S.Ct. at 2194-95 and at 2200-2201 (O'Connor, J., concurring in the judgment).

Simmons characterized the prosecution as urging the jury to sentence the defendant to death because, if sentenced to life, he would be a threat to society when he was later paroled from prison. See Simmons, 114 S.Ct. at 2202 (Scalia, J., dissenting). The defendant was not given the opportunity to inform the jury that a life sentence carried no possibility of parole. See Simmons, 114 S.Ct. at 2191. The Supreme Court decided this violated "fundamental notions of due process" because the defendant may have been sentenced to death "on the basis of [inaccurate and misleading] information which he had no opportunity to deny or explain." See Simmons, 114 S.Ct. at 2194-2196.

Simmons could be read for the broad proposition that it violates due process to deprive a defendant of the opportunity to rebut untruthful information about the availability of parole ⁽²⁶⁾ when a state requires jury consideration of that fact and when the prosecution urges the jury to use this untruthful information in assessing sentence. See Simmons, 114 S.Ct. at 2196, and at 2200-01 (O'Connor, J., concurring). To the extent Simmons can be read this way, it does not apply here because the prosecution did not urge the jury to use untruthful information about the availability of parole in assessing appellant's sentence and also because the parole charge instructed the jury not to consider the application of the parole law to this particular case.

Simmons also does not support the above-mentioned proposition. Simmons carved out for capital cases an exception to the general rule that determinations "as to what a jury should and should not be told about sentencing" are "purely matters of state law." See Simmons, 114 S.Ct. at 2196. The general rule rather than the exception carved out in Simmons applies here.

Finally, assuming that application of the parole statute to appellant's case violates due process, I disagree with the Court's decision that Almanza's "egregious harm" standard applies to this unobjected-to constitutional error. This Court and the Court of Appeals characterized this unobjected-to constitutional error as jury charge error thus requiring application of the egregious harm standard set out in Article 36.19, V.A.C.C.P., as interpreted by this Court in Almanza. ⁽²⁷⁾

This harm standard, however, applies only to a trial court's unobjected-to errors of commission or omission in submitting a jury charge "setting forth the law applicable to the case." ⁽²⁸⁾ The trial court's charge in this case set forth the law applicable to the case. The parole charge is "law applicable to the case" by virtue of Article 37.07, Section 4(a). A trial court would violate its statutory duty to instruct the jury on the "law applicable to the case" by not submitting the parole charge because this is what Article 37.07, Section 4(a), requires.

The claim is not that there is error in the jury charge. The claim is that application of Article 37.07, Section 4(a), to appellant's case violates due process of law. The claim does not involve an attack on the jury charge but involves an attack on the constitutionality of the statute. Almanza, therefore, does not apply and appellant procedurally defaulted the claim by not raising it in the trial court.

I respectfully concur in the result only.

McCormick, Presiding Judge

(Delivered September 13, 2000)

En Banc

Publish

1. Our Legislature, as have other state legislatures, has, therefore, decided to provide a jury only with "some general understanding of parole eligibility." See Farris v. State, 535 S.W.2d 608, 617 (Tenn. 1976) )(Harbison, J., dissenting).

2. See Article 37.07, Section 4(a), V.A.C.C.P., (instructing jury "not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant" and also instructing jury "not to consider the manner in which the parole law may be applied to this particular defendant").

3. So the substantive constitutional issue is, does the due process of law clause prohibit a state from enacting a statute that might cause a jury to do this which the federal government would enforce against the state at the point of a gun? This Court has held that an accurate parole charge does not violate separation of powers or due process and due course of law constitutional guarantees. See Muhammad v. State, 830 S.W.2d 953, 955-56 (Tex.Cr.App. 1992); Oakley v. State, 830 S.W.2d 107, 109-112 (Tex.Cr.App. 1992). These cases do not dispose of the constitutional issues presented here since a portion of the parole charge provides the jury with inaccurate information with respect to defendants such as appellant.

4. The Court of Appeals characterized its decision as an "as-applied" constitutional violation. It might, however, be argued that appellant's claim is a "facial" attack on a portion of the statutorily mandated parole charge with respect to all defendants who are ineligible to earn good conduct time off the period of their incarceration.

5. See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993) (example of "assuming without deciding" opinion) and at 875 (Scalia, J., concurring) ("there is no legal error in deciding a case by assuming, arguendo, that an asserted constitutional right exists"); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984) (if it is easier to dispose of ineffective assistance of counsel claim on ground of lack of sufficient prejudice instead of on ground of deficient attorney performance, then "that course should be followed").

6. See Herrera, 113 S.Ct. at 875 (Scalia, J., concurring) (purpose of "assuming without deciding" opinion usually is to make "life easier for ourselves").

7. See Edwards v. State, 10 S.W.3d 699, 702-05 (Tex.App.--Houston [14^th Dist.] 1999, no pet. history) (parole charge not constitutional error); Martinez v. State, 969 S.W.2d 497, 500-02 (Tex.App.--Austin 1998, no pet.) (parole charge not constitutional error, and, assuming it is, constitutional harm analysis applies); Garcia v. State, 911 S.W.2d 866, 868-69 (Tex.App.--El Paso 1995, no pet.) (parole charge not constitutional error because it is not misleading); Green v. State, 839 S.W.2d 935, 946 (Tex.App.--Waco 1992, pet. ref'd) (assuming parole charge is constitutional error, Almanza's harm analysis applies).

8. See U.S. Const., Amend. XIV, Section 5, (empowering only Congress "to enforce, by appropriate legislation, the provisions of this article").

9. For authorities to support these well-settled assertions that they probably require no citation to authority, see generally Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 1407-1502, 12 L.Ed.2d 653 (1964) (Harlan, J., dissenting); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 1763, L.Ed.2d (1961) (Douglas, J., dissenting) (Fourteenth Amendment's "due process of law" clause includes federal Bill of Rights and also is not "restricted and confined to them") and at 1774-78 (Harlan, J., dissenting) (discussing two views of "due process of law" that had not been accepted as delineating its scope); Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 1679-83 L.Ed.2d (1947) (Frankfurter, J., concurring) (generally discussing "due process of law" and arguing that Fourteenth Amendment's "due process of law" clause never intended to make federal Bill of Rights applicable to the states) and at 1684-1711 (Black, J., dissenting) (generally discussing "due process of law" and arguing that Fourteenth Amendment's "due process of law" clause intended to make federal Bill of Rights applicable to the states); Richard G. Stevens, Frankfurter and Due Process (1987), e.g., at xxi-xxvi (Fourteenth Amendment's due process of law clause says to a state that whatever criminal justice system and laws it establishes, it must provide to each and a state may not deprive a person of life, liberty or property without giving him that process which is due to him according to that law) and at 27 (congressional intent of Fourteenth Amendment centered on equal protection for blacks).

10. See, e.g., Mellinger v. City of Houston, 3 S.W. 249, 252-53 (Tex. 1887); Malloy, 84 S.Ct. at 1503 (Harlan, J., dissenting) ("due process of law" is secured against invasion by the federal government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth Amendment); Interpretive Commentary to Article 1, Section 19, Tex. Const.; Stevens, Frankfurter and Due Process, e.g., at 83 (everyone agrees that the words "due process of law" in the Fourteenth Amendment mean precisely what is meant by those identical words in the Fifth Amendment).

11. See Herrera, 113 S.Ct. at 875 (Scalia, J., concurring)("unhappy truth" is "that not every problem was meant to be solved by the United States Constitution, nor can be") citing Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981); Stevens, Frankfurter and Due Process, e.g., at xxii (primary security of rights is the business not of the courts, but of a legislature in a soundly constructed republic) and at xxiv:

"The Bill of Rights is not a compendious list of the minimum restraints acceptable in the case of free government. The minimum restraints are listed in the Constitution itself, and they are indeed spare! Other than those few things in the original Constitution, a sound republican legislature could pretty well be trusted to protect individual rights through the normal legislative process subject to majority rule." (Emphasis in Original).

12. See Poe, 81 S.Ct. at 1775 (Harlan, J., dissenting) ("due process of law" clause is not self-explanatory and its history "sheds little light on the meaning of the provision") and at 1778 ("vague contours" of "due process of law" do not permit courts to interpret it according to "personal and private notions and disregard the limits that bind judges in their judicial function").

13. See Stevens, Frankfurter and Due Process, e.g., at xxiv, 96-98; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1083, L.Ed.2d (1970) (Black, J., dissenting) (argument that courts further the basic thrust of the Bill of Rights of protecting individual freedom when they strike down a legislative act because it offends "fundamental fairness" ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people--the right of each person to participate in the self-government of their society); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 423, L.Ed.2d (1953) (Jackson, J., concurring in result) (criticizing federal courts for using "the generality of the Fourteenth Amendment to subject state courts to increasing federal control" and for overturning state convictions based on "ad hoc determination[s] of due process of law issues by personal notions of justice instead of by known rules of law"); Farris, 535 S.W.2d at 617 (Harbison, J., dissenting) (whether or not the legislature's decision was or was not a wise one, or consonant with optimum criminal procedure, is a wholly different question from the constitutionality of the statute).

14. See Winship, 90 S.Ct. at 1083 (Black, J., dissenting).

15. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1643-44, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting) and at 1657-65 (White, J., dissenting); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 1796, 12 L.Ed.2d 908 (1964) (Black, J., dissenting); Malloy, 84 S.Ct. at 1497-1502 (Harlan, J., dissenting); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 1701-08, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting); Paul G. Cassell and Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective On Miranda's Harmful Effects on Law Enforcement, 50 Stan.L.Rev. 1055 (1998) (many innocent people have been killed and maimed because of Miranda).

16. See Stevens, Frankfurter and Due Process, at 113.

17. See Stevens, Frankfurter and Due Process, e.g., at 96-98.

18. See, e.g., Palko v. Connecticut, 302 U.S. 149, 58 S.Ct. 149, 151-52, L.Ed.2d (1937); Stevens, Frankfurter and Due Process, e.g., at 88, 164, 192.

19. See Stevens, Frankfurter and Due Process, e.g., at 88 (these "are all very fine phrases" but the problem is "that what is `implicit in the concept of ordered liberty' depends on who is doing the conceiving").

20. See Stevens, Frankfurter and Due Process at xxii, and e.g., at xxv (a people may not adopt procedures which they are willing to have applied to themselves and then vindictively except an individual--for racial or other reasons--from those procedures and "railroad" him and execute or incarcerate or fine him).

21. Stevens, Frankfurter and Due Process at 86; see also id. (it violates due process for the government to break a statutory promise and for a statute to break a constitutional promise) and at 111 (if statute does not violate explicit constitutional provision and legislature had authority to enact it, then courts must enforce it) and at 113-14 (before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political authority in the Constitution).

22. See Oakley, 830 S.W.2d at 111-12; Edwards, 10 S.W.3d at 704-05.

23. See Stevens, Frankfurter and Due Process at xxii.

24. See Stevens, Frankfurter and Due Process at xxii (due process requires that whatever system of criminal justice a state establishes, it must give to each) and at xxv (people may not adopt procedures which they are willing to have applied to themselves and then vindictively except an individual from those procedures and "railroad" him and execute or incarcerate or fine him).

25. See Stevens, Frankfurter and Due Process, e.g., at 97 (one's own opinion as to the wisdom of a law must be wholly excluded when one is doing one's judicial duty).

26. Since appellant did not object to the parole charge, it cannot be said that he was denied an opportunity to rebut the misleading portion of the charge.

27. The harm standards set out in Almanza do not apply unless the appellate court first finds error in the jury charge. See Almanza, 686 S.W.2d at 174 (finding error in the court's charge to the jury begins--not ends--the inquiry). Here, the Court has not first found error in the jury charge.

28. See Article 36.14, V.A.C.C.P.; Posey v. State, 966 S.W.2d 57, 60-64 (Tex.Cr.App. 1998).