The Court of Criminal Appeals has remanded these causes for our consideration of the harm, if any, to appellant by the inclusion of the parole charge, given pursuant to Tex. Code Crim.P.Ann. art. 37.071. We are to analyze the harm under Tex.R.App.P. 81(b)(2). See Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App. 1988) (op. on reh'g). These are companion cases to Villanueva v. State, 769 S.W.2d 678 (Tex.App. — Houston [1st Dist.], 1989, n.p.h.).
After a joint jury trial with two co-defendants, appellant was found guilty of two separate offenses of aggravated kidnapping. The jury assessed punishment upon each conviction at confinement for 99 years and a $10,000 fine. Appellant requested that the two appeals be consolidated and considered together. *Page 504
On June 14, 1986, Mr. Mrs. David Cummings were at their ranch in Kerrville, Texas. Their teenage son, Jason Flintoft, was at their home in Houston with the housekeeper, Jovita Rangel. At approximately 7:30 a.m., appellant, Jorge Rodriguez, and his two co-defendants, Jose Villanueva and Rene Dorantes, allegedly forced their way into the home and abducted the complainants, Jason and Jovita. The two were bound at their hands and feet, blindfolded, and put into the back of a vehicle. They were moved to different locations and kept blindfolded throughout the entire ordeal.
That evening, following numerous phone calls and negotiations throughout the day, Mr. Cummings delivered a cash ransom of $300,000 to a designated location. Officers saw Dorantes retrieve the money and followed him to a house on Greenville Avenue. Shortly thereafter, officers saw a pickup truck leave the house. After they followed the vehicle outside the city on Highway 59 for approximately 40 miles, they stopped it. They found Dorantes behind the wheel and appellant in the front passenger seat. There were other people in the back of the vehicle. Approximately $190,000 was recovered from the vehicle, the appellant, and another passenger.
Dorantes told the officers that Jason and Jovita were being held at the house on Greenville Avenue. In the early morning hours, a Houston Police Department S.W.A.T. team entered the house and rescued the complainants. Villanueva and another man were arrested. Another $7,600 was found at the house. Over $96,000 was never recovered.
The parole charge has been held unconstitutional as a violation of the separation of powers doctrine and due course of law provisions of the Texas Constitution. Rose, 752 S.W.2d at 529. When a parole charge has been given, the rule 81(b)(2) test must be applied to determine whether appellant was harmed. Id. at 552-53.
Tex.R.App.P. 81(b)(2) provides:
If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
This standard of review places the burden of proof on the State to demonstrate that appellant suffered no harm because of the parole instruction. See Taylor v. State, 755 S.W.2d 548, 550 (Tex.App. — Houston [1st Dist.] 1988, pet. pending). In concluding that the defendant suffered no harm because of the parole instruction, the Rose opinion considered: (1) the curative instruction given by the trial court; (2) the heinous nature of the offense in question; and (3) the appellant's prior criminal record. 752 S.W.2d at 554-55.
Applying the harm analysis of Tex.R.App.P. 81(b)(2) to the facts of this case, we observe that the jury convicted appellant of two counts of aggravated kidnapping, a heinous crime2. The jury heard the trial court's curative instruction in the written charge "not to discuss how long each accused would be required to serve" because "[s]uch matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas."See 752 S.W.2d at 554 (the curative instruction was "particularly significant because this was the judge's last word on the subject").
There is a rebuttable presumption that the jury followed this instruction, and the record before us supports this presumption. See Jones v. State, 755 S.W.2d 545 (Tex.App. — Houston [1st Dist.] 1988, pet. pending). There was no discussion of the law of parole or good conduct credit during the voir dire. At the punishment stage, the State introduced evidence of appellant's prior *Page 505 conviction for the unauthorized use of a motor vehicle, and no mention of the law of parole or good conduct credit occurred during jury argument. Additionally, the jury was instructed that the punishment range for aggravated kidnapping was confinement for life or for any term of not more than 99 years or less than 5 years, and a fine not to exceed $10,000.
Although appellant received the maximum sentence in both instances, in light of the gravity of the offense and the severity of the facts, as recounted above, we find beyond a reasonable doubt that the error did not contribute to the punishment assessed. Tex.R.App.P. 81(b)(2).
The judgment of the trial court is affirmed.
O'CONNOR, J., dissents.