DONNY EDWARD OKRA,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-86-00607-CR
 
DONNY EDWARD OKRA,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION PER CURIAM
MARCH 29, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        On original submission, this Court affirmed appellant's conviction. In so doing, we overruled appellant's challenges to the constitutionality of instructions given to the jury pursuant to article 37.07 § 4 of the Code of Criminal Procedure ("parole instructions"). The Court of Criminal Appeals subsequently declared the parole instructions unconstitutional. Rose v. State, 752 S.W.2d 529, 552 (Tex. Crim. App. 1987). Accordingly, the court has remanded this cause, directing that we conduct an "harmless error" analysis of the record under rule 81(b)(2) of the Rules of Appellate Procedure. We affirm the judgment of the trial court.
        Rule 81(b)(2) of the Rules of Appellate Procedure provides the guide for our analysis of whether the error resulting from the parole instruction was harmless:
        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...punishment.
TEX. R. APP. P. 81(b)(2). When error is found, we must presume that the error was harmful. It is only if we find that the record rebuts the presumption of harm that we may find the error harmless. See Hargraves v. State, 738 S.W.2d 743, 749 (Tex. App.--Dallas 1987, pet. filed).
        The record in this cause reflects that in addition to the parole instructions, the court instructed the jury as follows:
    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 come 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.
The Court of Criminal Appeals in Rose found that an identical instruction was "particularly significant" in evaluating whether appellant was harmed by the parole instruction. 752 S.W.2d at 554. We presume that a jury follows the instructions of the trial judge. Connecticut v. Johnson, 460 U.S. 73, 85 n. 14 (1982); Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1975). Neither side mentioned parole in their arguments to the jury, or in testimony. In addition, the record does not disclose any notes from the jury concerning parole eligibility. Finally, we have no record of the voir dire of the jury; consequently, we have no evidence that parole was discussed during voir dire. As a result, we see no evidence to rebut the presumption that the jury followed the instruction of the court judge not to consider parole.
        Further, we find that the evidence introduced at trial fully supported the life sentence assessed by the jury. On October 10, 1985, appellant entered a fast-food restaurant and told the complainant, a cashier, to give him all the money in the register at which she worked. He then grabbed her, put a gun in her side, and told her not to say anything. He forced the gun into her side until it hurt. After she gave him the money, he left the premises. The State alleged in the indictment and proved that appellant had been previously convicted of burglary of a building. As a result, the range of punishment for the offense was for life, or from fifteen to ninety-nine years' confinement. TEX. PENAL CODE § 12.42(c) (Vernon Supp. 1989). In addition to the allegations in the indictment, the State proved up two other felony convictions.
        Given the curative instruction from the trial court on parole, the lack of evidence of any discussion of parole, and the evidence placed before the jury as to the facts of the offense and appellant's prior record, we conclude beyond a reasonable doubt that the parole instructions made no contribution to the punishment assessed. The judgment of the trial court is affirmed.
                                                  PER CURIAM
DO NOT PUBLISH
TEX. R. APP. P. 90
86-00607.F
 
 
File Date[01-02-89]
File Name[860607]