AMBROCIO GONZALES,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-86-00479-CR
AMBROCIO GONZALES,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES BAKER, BURNETT, AND WHITTINGTON
OPINION BY JUSTICE BURNETT
APRIL 14, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        A jury found appellant, Ambrocio Gonzales, guilty of aggravated sexual assault and sentenced him to life imprisonment. Because appellant's charge on punishment contained the unconstitutional parole law instruction mandated by article 37.07, section 4, of the Texas Code of Criminal Procedure, the Texas Court of Criminal Appeals has remanded appellant's cause to this court to conduct a harm analysis under rule 81(b)(2) of the Texas Rules of Appellate Procedure. See Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988) (op. on reh'g); Haynie v. State, 751 S.W.2d 878, 879 (Tex. Crim. App. 1988). We affirm the trial court's judgment.
        Rule 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.
TEX. R. APP. P. 81(b)(2). This standard requires a court to review the entire record.
        Complainant, nine years old at the time of trial, testified that before being placed in a foster home she resided with her mother, stepfather (appellant), and six brothers and sisters. Complainant testified that on April 30, 1985, her mother was in the hospital delivering her youngest sister. While her mother was in the hospital, appellant took her for a ride in his van. Appellant drove the van about one mile, parked the van, and ordered complainant to close the windows and lock all the doors. Appellant then raped complainant and ordered her not to tell anyone.
        Complainant testified that the April 30, 1985, incident in the van was not the first time that appellant had raped her. Complainant testified that appellant began to sexually molest her on a regular basis when she was eight years old.
        A physician who specializes in the evaluation of known or suspected child abuse cases examined complainant for evidence of sexual activity on December 12, 1985. The physician testified that complainant's hymen was completely disrupted and that the circumference of her vagina was greater than that of an average nine-year old child. In the physician's opinion, an injury could not have produced the total disruption of complainant's hymen and that her condition was consistent with her having sexual intercourse with a grown man over a period of two years.
        Appellant denied raping his stepdaughter. Appellant testified that approximately two years earlier Jesus Christ called him in a dream to become a minister and that he was a pastor at a church. Appellant also said he worked as a mechanic at home.
        Voir dire of the venire was not transcribed. Appellant had no prior felony convictions. The parole law was not mentioned during jury arguments. The court's charge contained the curative instruction found in Rose. See Rose, 752 S.W.2d at 554. During deliberations on punishment, the jury sent the following note to the trial court, "Essentially what is the difference between a sentence of 99 years and life?" The trial judge responded, "The Court can not answer this." The jury sentenced appellant to life imprisonment.
        We hold that beyond a reasonable doubt, the parole law instruction did not contribute to appellant's conviction or punishment. The court's charge contained the curative instruction found in Rose. Appellate courts presume that a jury follows the instructions given by the trial judge. Rose, 752 S.W.2d at 554. Nothing in the appellate record rebuts this presumption.
        The judgment of the trial court is affirmed.
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
86-00479.RMF
 
 
 
File Date[01-02-89]
File Name[860479RM]