DONALD RAY BRISCOE, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-85-01032-CR
 
DONALD RAY BRISCOE, FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES WHITHAM, HOWELL AND STEWART
OPINION BY JUSTICE STEWART
MARCH 1, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        Donald Ray Briscoe's original appeal was taken from a conviction for the offense of aggravated robbery. Appellant pled guilty before the jury and the jury assessed punishment at fifteen years' imprisonment.
        Before this Court, appellant argued that the trial court erred in instructing the jury on the law concerning good time and parole because the charge was predicated on an unconstitutional statute and that the charge was an ex post facto application of the law to the appellant. Appellant's challenges to article 37.07, section 4, of the Texas Code of Criminal Procedure was rejected by this Court. See Briscoe v. State, No. 05-85-01032-CR (Tex. App.-- Dallas, December 8, 1986). In his petition for discretionary review to the Texas Court of Criminal Appeals, appellant urged that this Court erred in holding article 37.07, section 4 of the Texas Code of Criminal Procedure constitutional.
        In Rose v. State, 752 S.W.2d 529 (Tex. Crim. App. l988), the Texas Court of Criminal Appeals held the statute unconstitutional. However, in Rose, the Court also held that it is still necessary to conduct a harmless error analysis under the guidelines of Texas Rule of Appellate Procedure 81 (b)(2). Rose, 752 S.W.2d at 554; Haynie v. State, 751 S.W.2d 878, 879 (Tex. Crim. App. 1988). The Court of Criminal Appeals vacated our judgment and remanded the cause to this Court to conduct the harm analysis. We hold that beyond a reasonable doubt the error made no contribution to the punishment assessed and affirm the judgment.
        Rule 8l(b)(2) of the Texas Rules of Appellate Procedure provides the general harmless error test to be applied by appellate courts in criminal cases and states:
            If the appellant 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.
TEX. R. APP. P. 81(b)(2). In applying the standards specified by this rule, we are required to review the entire record.
        The applicable range of punishment upon appellant's conviction was a minimum of five years to a maximum of ninety-nine years or life imprisonment with the possibility of a fine of up to $10,000.00. The jury assessed punishment at fifteen years' confinement.
        The record reflects that the voir dire examination of the veniremen is not before us. The evidence showed that appellant kidnapped a man, held a gun on him and forced him to drive appellant and his friend around. Appellant finally dropped the victim off in a field, stole his wallet and took his car.
        At the punishment stage, only the statutory charge was given. It did not contain any further mitigating instructions and none were requested. See Rose, 752 S.W.2d at 554.
        The record reflects that no mention was made by either counsel concerning parole law during jury argument. Appellant's counsel asked the jury for probation, and the State asked the jury to start their consideration of punishment at fifty years' confinement. As previously noted, the jury assessed punishment at fifteen years' confinement with no fine.
        The lack of emphasis on the parole law by the parties throughout the course of the trial, coupled with the particular facts of the offense committed by appellant and the sentence he received, leads us to conclude that the statutory parole instructions did not affect appellant's sentence. We find beyond a reasonable doubt that the error made no contribution to the judgment assessed. TEX. R. APP. P. 82(b)(2).
        We affirm the trial court's judgment.
 
 
ANNETTE STEWART
JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
85-01032.RMF
 
        
 
 
 
 
File Date[01-02-89]
File Name[851032]