RUBIN NOTHA MCNEELY,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-86-00291-CR
NO. 05-86-00292-CR
RUBIN NOTHA MCNEELY,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES THOMAS, BURNETT, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
FEBRUARY 14, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        Rubin Notha McNeely was convicted of two separate cases of aggravated robbery and assessed a life sentence and a $5,000 fine in each case. On appeal to this Court he contended that the trial court erred in submitting good time and parole instructions to the jury on the grounds that the charge was predicated on an unconstitutional statute. We rejected this challenge to the constitutionality of Article 37.07, Section 4, of the Texas Code of Criminal Procedure in an unpublished opinion.
        The Court of Criminal Appeals granted his petition for discretionary review and agreed with his contention that the statute in question is unconstitutional. This decision was based upon that court's prior decision in Rose v. State, 752 S.W.2d 529 (Tex. Crim. App. 1988). That court remanded this cause to this Court to conduct a harm analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. See Rose, 752 S.W.2d at 554. We hold that the error was harmless beyond a reasonable doubt and affirm.
        Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides the general harm analysis test to be applied by an appellate court in criminal cases and states as follows:
 
 
        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.
TEX. R. APP. P. 81(b)(2). This standard requires a review of the entire record.
        Appellant was convicted in two separate cases of aggravated robbery and was assessed a life sentence and a $5,000 fine in each case. The range of punishment available for each offense was five to ninety-nine years' or life imprisonment and up to a $10,000 fine. The facts are that appellant and another man robbed a fast food restaurant at 12:30 a.m. in early January of 1985. The night manager and one employee were present. Both robbers exhibited weapons. Appellant took the manager's wallet and ripped a gold chain off of his neck when he refused to relinquish it. Both robbers forced the manager to open the store safe. The manager heard appellant say, at one point, "Let me shoot the mother--s." The manager identified appellant from a photo line-up.
        Later that same month, appellant and another man entered a shoe store. The other man, who displayed a gun, told the clerk he did not want to hurt her and told her to give him the money. Appellant, who did not display a weapon, took sneakers and boots. The store clerk identified appellant in a photo line-up. Appellant was found guilty as charged in both indictments.
        During the punishment phase of the trial, the State introduced evidence of appellant's prior convictions for unlawfully carrying a weapon, compelling prostitution, possession of a controlled substance and assault with intent to commit rape. Two enhancement paragraphs were apparently dismissed and no finding was made concerning the paragraphs. The trial court charged the jury on a deadly weapon finding in addition to the statutory good time and parole charges mandated by Article 37.07 of the Texas Code of Criminal Procedure. No mitigating charge on good time and parole was requested or submitted to the jury.
        At the punishment phase, the State made no reference to good time or parole. The State asked for a life sentence and a $10,000 fine in each case. Counsel for the defendant asked that appellant be given a term of five to ten years. As previously stated, the jury assessed a life sentence and a $5,000 fine in each case.
        The facts of each case coupled with appellant's prior convictions show that appellant is a habitual criminal. Also, parole and good time was in no way emphasized or discussed by the State and there were no indications that the jury relied on such. We conclude that the statutory parole instructions did not contribute to appellant's sentence. We hold that the error made no contribution to the punishment assessed beyond a reasonable doubt.
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
86-00291.RMF
 
 
File Date[01-02-89]
File Name[860291RF]