DANIEL WILLIAM GRUNDSTROM,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-86-00778-CR
 
DANIEL WILLIAM GRUNDSTROM,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, BAKER, AND LAGARDE
OPINION BY JUSTICE BAKER
AUGUST 21, 1989
ON REMAND FROM THE COURT OF CRIMINAL APPEALS
        Daniel William Grundstrom's original appeal was taken from a conviction for the offense of aggravated robbery. A jury found him guilty and assessed his punishment at life confinement with a $10,000 fine.
         One of the grounds that appellant argued before this Court was that the trial court erred in instructing the jury on the law concerning good time and parole inasmuch as the charge is predicated on an unconstitutional statute. This challenge by appellant to article 37.07, section 4, of the Texas Code of Criminal Procedure was rejected by this Court. See Grundstrom v. State, 733 S.W.2d 920, 927 (Tex. App.--Dallas 1987). Although appellant's petition for discretionary review to the Texas Court of Criminal Appeals contained several points of error, that court granted the petition only on the ground 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. 1988) (op. on reh'g), the Texas Court of Criminal Appeals held the statute unconstitutional. However, in Rose, the court held that it is still necessary for a harm analysis to be conducted under the guidelines of rule 81(b)(2) of the Texas Rules of Appellate Procedure. See 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 analysis. We hold beyond a reasonable doubt that the error made no contribution to the punishment assessed and affirm the judgment.
        Rule 81(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 as follows:
        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 ninety-nine years or life imprisonment with a possibility of a fine of up to $10,000. The jury assessed punishment at life with a $10,000 fine.
        The voir dire of the jury was not transcribed. However, during its part of the argument during the punishment phase of the trial, the State's attorney pointed out that he had told the panel during voir dire that he wanted a life sentence. At the guilt-innocence stage, the evidence shows that the appellant drove two women around to look for persons to rob to get money to buy drugs. The particular offense for which appellant was convicted involved the aggravated robbery of a young woman at a Dallas nightclub. Appellant's accomplices threatened the complaining witness with both a gun and a knife. Evidence at the punishment stage revealed appellant's prior convictions for robbery, burglary, and robbery by assault.
        Appellant timely objected to the court's charge on parole law. The trial court charged on parole and good time law using the statutory language. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(b) (Vernon Supp. 1989). In addition, the court's charge contained the further mitigating instructions referred to in Rose. See Rose, 752 S.W.2d at 554.
        The record further reflects that appellant's counsel made only a passing reference to the parole instruction at the outset of his argument and did not suggest any particular sentence and argued only for a low term. The State made no reference to the parole charge in its argument at the punishment stage. The State did argue to the jury for a maximum sentence of life and emphasized the fact that appellant had been previously convicted of felony offenses on three separate occasions. The record further reflects that during the course of its deliberations, the jury did not ask any questions of the trial court concerning the statutory parole instructions. As noted, the jury did assess appellant's punishment at life with a $10,000 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 his prior criminal record, 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 punishment assessed. See TEX. R. APP. P. 81(b)(2).
        We affirm the trial court's judgment.
 
                                                                                                                    __________________________
                                                          JAMES A. BAKER
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
86-00778.RMF
 
 
File Date[09-06-89]
File Name[860778RF]