I respectfully dissent.
This case has been remanded for our consideration of whether the error in instructing the jury of the law of good conduct time and parole demands reversal. The majority concludes that the error in instructing the jury contributed to the amount of punishment assessed. I disagree.
In doing so, I recognize the task of determining whether the appellant was harmed by the parole instruction is a difficult one, because we are required to use objective facts to determine whether the trial court's instruction on parole subjectively influenced the jury's verdict. Nonetheless, I would hold that, "beyond a reasonable doubt," the instruction did not contribute to appellant's punishment.
The Court of Criminal Appeals requires us to apply TEX.R.APP.P. 81(b)(2) to determine whether the error in giving the unconstitutional instruction requires reversal of the conviction. Rule 81(b)(2) provides if there is an error, we must reverse the judgment unless we determine, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. Therefore, in order to affirm the judgment, we must determine, beyond a reasonable doubt that the error did not make any contribution to the defendant's punishment.
In making this determination, we would ordinarily be guided by the Court of Criminal Appeals' opinion in Rose II. However, there was no clear majority in that opinion, merely a plurality of views. Nonetheless, it is obvious the Court of Criminal Appeals considered a number of factors to be important in the harm analysis. These factors include (1) the sentence imposed compared to the range of punishment; (2) the aggravating or extenuating facts of the case; (3) the defendant's prior criminal record; (4) the court's charge on punishment; and arguably, (5) the final arguments mentioning the effects of good conduct time. Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App. 1987) (opinion on reh'g). Additionally, we must apply a rebuttable presumption that the jury followed any curative instructions given by the trial judge. Id. citing Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App. 1983).
The range of punishment for aggravated robbery, with prior offenses, was fifteen years to life. TEX.PENAL CODE ANN. s12.42(c) (Vernon Supp. 1989). The jury selected life.
However, there were aggravating facts in the commission of the offense. Texas courts have recognized that aggravating facts tend to support a finding of harmless error.Lancaster v. State, 754 S.W.2d 493, 496 (Tex.App. — Corpus Christi 1988, pet. ref'd); Baker v.State, 752 S.W.2d 237, 239 (Tex.App. — Fort Worth 1988, pet. ref'd).
The evidence established that during the commission of the robbery, appellant held an automatic pistol to the victim's head. The jury was entitled to weigh this aggravating fact in assessing punishment and then we must presume that they did so.
Another factor frequently considered by courts in assessing the harm of the parole and good conduct instruction is the evidence of the defendant's prior criminal record.Zimmerman v. State, 754 S.W.2d 402, 405 (Tex.App. — Corpus Christi 1988, pet. ref'd). Testimony established that appellant had been previously convicted of the offense of murder. The jury was entitled to weigh the evidence of this serious crime in assessing its punishment.
In considering whether the error was harmless, we may look at whether the parole and good conduct time instruction were emphasized during the oral argument. Taylor v. State,755 S.W.2d 548, 551 (Tex.App. — Houston [1st Dist.] 1988, no pet.); Lancaster v. State, 754 S.W.2d 493, 496 (Tex.App. — Corpus Christi, 1988, pet. ref'd); Bakerv. State, 752 S.W.2d 237, 239 (Tex.App. — Fort Worth 1988, pet. ref'd). *Page 427 The record indicates neither the prosecution nor the defense mentioned the instruction during the final arguments.
Most importantly, the jury charge contained the following language regarding the parole and good conduct instruction:
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
In Rose II the Court of Criminal Appeals held there is a rebuttable presumption that the jury followed any instruction not to consider the application of parole and good conduct time in arriving at the defendant's sentence. Rosev. State, 752 S.W.2d at 554. There is no evidence the jury considered the effect of parole or good conduct time. Additionally, I do not believe any of the other factors rebut this presumption.
As a result, I would affirm the trial court's conviction.