JANICE MARIE JOHNSON,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
N0. 05-86-00144-CR
JANICE MARIE JOHNSON,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
FEBRUARY 1, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        This case was remanded to our Court in consequence of Rose v. State, 752 S.W.2d 529 (Tex. Crim. App. 1988). Under mandate of the Court of Criminal Appeals, we now conduct a harm analysis under the guidelines of Texas Rule of Appellate Procedure 81(b)(2). In doing so, we follow the format of the harm analysis conducted in Rose, 752 S.W.2d at 554-55.
        Appellant was convicted of aggravated assault and murder after a trial before a jury. The jury sentenced appellant to two years' confinement probated for the aggravated assault conviction and fourteen years' confinement in the Texas Department of Corrections for the murder conviction. Appellant appealed both of these convictions to the Court of Appeals, which affirmed the judgment of the trial court. Appellant filed her petition for discretionary review only on the assault conviction, and the Court of Criminal Appeals remanded it to this Court. FN:1
        In addition to reading to the jury the statutory parole instruction, the trial judge in this case also read the following special instruction:
                You are further instructed that in determining the punishment in this case you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters are within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.
We are to presume that the jury followed the instructions given by the trial judge unless this presumption is somehow rebutted. Rose, 752 S.W.2d at 554. We find nothing in the record to rebut the presumption. The range of punishment for aggravated assault is not more than 10 years nor less than 2 years and a fine not exceeding $5,000.00. Appellant received the minimum sentence of two years for the assault conviction, and this sentence was probated. No mention of parole was made in the jury argument.
        The evidence supports the conviction of guilt. While at a gambling establishment, appellant got into an argument with a man who she believed owed her $2.00. A scuffle ensued and she pulled a gun on him and fired all five shots from the pistol, killing one person and wounding another. Thus, the facts militate in favor of a harsh sentence.
        For the above considerations, we find beyond a reasonable doubt that the error made no contribution to the punishment assessed. TEX. R. APP. P. 81(b)(2). Accordingly, the judgment of the trial court is affirmed.
 
 
ANNETTE STEWART
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
86-00144.F
 
FN:1 Motions for rehearing were filed on both convictions, but petition for discretionary review was filed only on the assault conviction in No. 05-86-00144-CR.
File Date[01-02-89]
File Name[880144]