Douglas COLLINS, Appellant, v. STATE of Texas, Appellee, 647 S.W.2d 719

OPINION YOUNG, Justice. A Harris County jury found Douglas Collins guilty of burglary of a building with intent to commit theft and assessed his punishment at imprisonment for fourteen years. The appellant calls to our attention several errors which occurred in the punishment phase of the trial. We reverse. In his motion for new trial, appellant alleged that the jurors discussed the number of years Collins would actually serve in jail.

This motion was supported by the affidavit of Charlie Rockemore, a juror, who stated that for the greater part of their deliberation the jurors spoke of the length of the sentence in relation to the actual time served. At the hearing on the motion for new trial, Rockemore was the sole witness. He testified that the jury deliberated for 45 minutes before reaching agreement on punishment.

Rockemore stated that all the jurors discussed how much of his sentence the appellant would serve by making calculations such as, “If we give him 14 years, he can parole out in five.” In his first ground of error, the appellant contends that discussion of the parole law by the jury was misconduct which deprived him of a fair trial. Tex.Code Crim.Proc. Ann. Art. 40.03 (Vernon 1979) provides, “New trials, in cases of felony, shall be granted the defendant for the following causes: ....

Where, from the misconduct lof the jury, the court is of the opinion that -the defendant has not received a fair and impartial trial.. . . ” Jury discussion of the parole law is always misconduct. Sanders v. State, 580 S.W.2d 349, 351 (Tex.Cr.App.1979). Whether this misconduct mandates reversal depends upon the particular facts of each case. Heredia v. State, 528 S.W.2d 847, 853 (Tex.Cr.App.1975). We listed in Vasquez v. State, 632 S.W.2d 180, 183 (Tex.App.—Corpus Christi 1982, no petition) the criteria which a court may consider in determining whether to reverse when misconduct has occurred.

Those factors which have the most bearing on this case include: the duration and extent of the discussion; whether admonishments by the court caused such discussion to cease; and the proximity of the discussion to the final vote. In the case before us, it is clear that the jury talked extensively about the effect of parole laws on the sentence. It is also apparent that the jurors disregarded the court’s instruction in the charge which prohibited the jury’s consideration of how long the appellant would serve.

Finally, it appears that their statements permeated the deliberations and did not cease until the final vote. We conclude that the jury misconduct denied the appellant a fair trial. See Munroe v. State, 637 S.W.2d 475 (Tex.Cr.app.1982). The judgment of the trial court is reversed and the cause is remanded.