Barehill v. State

OPINION DUGGAN, Justice. The Court of Criminal Appeals vacated our judgment and remanded this cause. We must consider whether appellant was harmed by a parole charge that was based on an unconstitutional statute, Tex.Code Crim.P.Ann. art. 37.07, sec. 4(a).1 See Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1988) (op. on reh’g). We must analyze the harm under the guidelines of Tex.R.App.P. 81(b)(2). Id. Rule 81(b)(2) provides that this Court must reverse a judgment unless we determine, beyond a reasonable doubt, that the error did not contribute to the punishment. The State has the burden to show the absence of harm. See Taylor v. State, 755 S.W.2d 548, 550 (Tex.App.—Houston [1st Dist.] 1988, pet. pending). A jury convicted appellant of aggravated robbery. The punishment range for this offense is five to 99 years or life and up to a $10,000 fine. The jury assessed his punishment at 12 years confinement. The evidence presented at the guilt-innocence stage of trial showed that appellant entered a fast-food restaurant at 9 p.m. He ordered some chicken. When asked to [507] pay, he pulled out a concealed handgun and pointed it at the cashier’s face. Neither the prosecutor nor defense counsel mentioned the parole laws during voir dire. At the punishment stage of trial, appellant admitted he had three prior misdemeanor convictions. He also admitted he had a past drug problem. During closing arguments at the punishment stage, the prosecutor recommended a punishment of 50 years. He did not mention the parole laws or their application. Defense counsel asked the jury to consider probation or the minimum sentence. He explained to the jury that the parole portion of the charge meant “you are not to sit down with a pencil or figure out in your mind how much time someone actually serves. You’re just given this information as a guideline.” The charge did not inform the jury that parole matters are within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State. Compare Rose, 752 S.W.2d at 554. However, the statutory instruction telling the jury not to consider the parole laws creates a rebuttable presumption that the jury followed the instruction. Fambro v. State, 751 S.W.2d 956, 959 (Tex.App.—Eastland 1988, pet ref’d). There is no evidence to rebut this presumption. We therefore conclude, beyond a reasonable doubt, the parole instruction did not contribute to the punishment assessed. We overrule appellant’s fifth point of error challenging the parole instruction and affirm the judgment. O’CONNOR, J., dissents with opinion. Footnotes [1] Ch. 576, sec. 1, 1985 Tex.Gen.Laws 2195, amended, by ch. 66, sec. 1, 1987 Tex.Gen.Laws 170, amended by ch. 1101, sec. 15, 1987 Tex.Gen.Laws 3765.