ROSALIND HESTER TABORN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 11, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01332-CR
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ROSALIND HESTER TABORN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F87-71677-IU
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice Ovard
        Upon an indictment charging murder, a jury convicted Rosalind Hester Taborn of voluntary manslaughter and assessed punishment at twelve years' confinement. On appeal, she contends that the trial court erred by charging the jury on the law of parole and by permitting an improper jury argument. We affirm.
        In Taborn's first point of error, the issue to be determined is whether, under Rule 81(b)(2) of the Texas Rules of Appellate Procedure, FN:1 the trial court's submission of the unconstitutional good time and parole instructions contributed to the punishment assessed. Rose v. State, 752 S.W.2d 529, 553 (Tex. Crim. App. 1988). Since the trial court's charge included the unconstitutional parole instruction, we must reverse the conviction unless we determine, beyond a reasonable doubt, that the improper charge made no contribution to the punishment assessed. Rose, 752 S.W.2d at 555. This standard requires a review of the entire record.
        Taborn argues that the length of jury deliberations, good character testimony, favorable psychiatric testimony, the number of years imposed and the absence of a mitigating charge excludes a determination that inclusion of the improper charge was harmless beyond a reasonable doubt. We disagree.
        Our review begins by noting that there is no record of the voir dire examination. At trial, testimony was elicited that Taborn and decedent lived together and contemplated marriage. The decedent, who had significantly impaired mobility due to a back and knee disability, was shot in the back by Taborn. The shooting resulted from decedent's intent to move out, his reference to Taborn as a "black whore," and an argument over decedent's refusal to pay a water bill. Although she testified that decedent had threatened her with a gun in the past, there were no threats or violence by the decedent at the time of the shooting. In addition, there was testimony that Taborn intended to kill the next man who left her.
        After finding Taborn guilty of voluntary manslaughter, the jury heard evidence of Taborn's character, her lack of remorse, lack of a criminal record, and psychiatric opinion testimony that she would not continue to be dangerous. The arguments concerning punishment did not contain any reference to the parole charge. The State argued the aggravated facts, lack of remorse, and that the facts supported a verdict of guilty of murder. Taborn argued the absence of a criminal record and the futility of a penitentiary sentence. The jury assessed punishment in the middle range without assessing a fine.
        The record reflects that although the jury deliberated for more than a day on punishment, the only jury note indicated a deadlock, neither concerning the application of the parole law to Taborn nor confusion about the law. The facts indicate a senseless taking of a human life where the decedent was unarmed and partially disabled. While this shooting in the back was voluntary manslaughter, the facts are grave and could have supported a harsher sentence within the range prescribed by law. FN:2 Additional testimony was presented both to mitigate and to aggrandize the punishment sentence. These facts support a mid-range punishment. Further, neither side argued application of the parole law. Nothing, herein, indicated that the parole charge affected punishment.
        Taborn argues that the twelve year sentence shows parole consideration because it can be divided by three. She cites no authority, nor can we find any supporting her position. We reject it as speculative. Although there was no mitigating charge, it is but one factor for our consideration. In reviewing the record, it was not essential in reaching our conclusion. Rose, 752 S.W.2d at 554. After careful review of the entire record, we conclude that the statutory parole instruction did not contribute to Taborn's punishment.         Additionally, we point out that the statutory parole instruction informed the jury that:
        You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
This mitigating language is of no constitutional consequence. Rose, 752 S.W.2d at 535. But it does instruct the jury not to apply the parole law to Taborn. The law presumes that the jury conducts itself as directed by the trial court. See Sattiewhite v. State, No. 69,763, slip op. at 10-13 (Tex. Crim. App. Oct. 25, 1989) (not yet reported). This language is substantially the same as the mitigating language submitted in Rose and would serve the same purpose. See Montgomery v. State, 760 S.W.2d 323, 325-29 (Tex. App.--Dallas 1988, pet. granted). We overrule Taborn's first point of error.
        In her second point of error, Taborn complains of an argument made by the State because it is similar to that condemned in Lovelace v. State, 662 S.W.2d 390, 392 (Tex. App.--Dallas 1983, pet ref'd, untimely filed). The objection at the appellate level was that argument was outside the record and inflammatory. At trial, the objection was that the State was attempting to intimidate the jury. When the objection on appeal does not comport with the objection at trial, nothing is presented for review. Montoya v. State, 744 S.W.2d 15, 33 (Tex. Crim. App. 1987), cert. denied, ___ U.S. ___, 108 S. Ct. 2887 (1988). We overrule Taborn's second point of error.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
881332F.U05
 
 
FN:1 Tex. R. App. P. 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.
FN:2 The possible range of punishment for a conviction of voluntary manslaughter, a second degree felony, is confinement in the Texas Department of Corrections for a term of not more than 20 years or less than 2 years. Additionally, a fine not to exceed $10,000 may be imposed. Tex. Penal Code Ann. § 19.04(d) (Vernon 1989), 12.33(a)(b) (Vernon 1974).
File Date[12-11-89]
File Name[881332F]