ANGEL MARTINEZ RUIZ, Appellant v. THE STATE OF TEXAS, Appellee

Reformed, and Affirmed as Reformed, and Opinion Filed December 31, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-94-01155-CR
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ANGEL MARTINEZ RUIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F93-55265-VH
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O P I N I O N
Before Justices Lagarde, Whittington, and James
Opinion By Justice Whittington
        Angel Martinez Ruiz appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at life imprisonment. In one point of error, appellant contends the trial judge erred in failing to properly instruct the jury on the law of parole. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 1997). We reform the judgment to reflect that the jury made the affirmative finding on use of a deadly weapon. As reformed, we affirm the trial court's judgment.
 
BACKGROUND
        On January 16, 1993, appellant shot Prisciliano "Chano" Lugo in the head and legs. Lugo died as a result of the gunshot to the head. Appellant was later arrested and charged with murder. At trial, the judge submitted the charge to the jury without any objection from appellant. The jury found appellant guilty and assessed his punishment at life imprisonment. This appeal followed.
JURY CHARGE
        Appellant contends the trial judge erred in failing to instruct the jury on the law of parole as required by article 37.07, section 4(a) of the Texas Code of Criminal Procedure. Appellant maintains that the failure to comply with section 4(a) requires reversal. We disagree.
        Initially, we note that the record shows the statutory parole instruction was excluded at appellant's request. When asked about the proposed jury charge on parole, appellant indicated he preferred the "old standard instruction, not to consider parole for any purpose and . . . not to consider how long the defendant will be required to serve." The trial judge then gave the following charge:
            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 doctrine of invited error prohibits an appellant from alleging error on appeal when that error resulted from appellant's own actions. Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988), cert. denied, 492 U.S. 912 (1989). Here, appellant requested that the trial judge submit the "old standard instruction." Because appellant requested the very instruction about which he now complains, appellant is precluded from raising this complaint. See Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987) (defendant may not request charge and, when charge is given, complain about charge on appeal), cert. denied, 487 U.S. 1210 (1988).
        Nevertheless, even assuming appellant could properly raise the complaint on appeal, we would conclude appellant's argument lacks merit. When a judgment contains a deadly weapon finding, article 37.07 of the code of criminal procedure requires the trial court to give a parole charge to the jury during punishment. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 1997); Grigsby v. State, 833 S.W.2d 573, 575-77 (Tex. App.--Dallas 1992, pet. ref'd). In this case, the judgment contained a deadly weapon finding, but the judge did not give the article 37.07 parole charge. Although the failure to instruct the jury under the mandatory statute is error, we held in Grigsby that an appellate court applies the Almanza standard to determine the harm in the error. Grigsby, 833 S.W.2d at 576 (discussing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)). Thus, in cases where an appellant fails to properly object to the omission of the parole law instruction, reversal is warranted "only if the error is so egregious and created such harm that he has not had a fair and impartial trial." Almanza, 686 S.W.2d at 171.
        In Grigsby, we considered whether a defendant suffered egregious harm when the trial court failed to instruct the jury as required by article 37.07, section 4(a). There, we stated:
            Texas courts agree that the State, not appellant, benefits from the parole law instructions. The parole instructions inform the jury how good-conduct time combines with actual time served to determine parole eligibility. The instruction was designed to increase jury sentences. We fail to see how not giving a charge meant to increase the length of a sentence harms an appellant. . . . We hold that appellant suffered no actual harm because the trial court did not instruct the jury on the parole law. It is more likely that appellant benefitted from the error.
Grigsby, 833 S.W.2d at 576-77 (citations omitted).
        In this case, appellant did not object to the trial judge's failure to comply with article 37.07, section 4(a) in the charge to the jury. Thus, appellant must show egregious harm to obtain a reversal of his conviction. See Almanza, 686 S.W.2d at 171. Appellant, however, states only that the article 37.07 instruction to consider parole might have "benefitted appellant in achieving a sentence less than the maximum assessed by the jury." As we noted in Grigsby, the parole instruction was designed to increase jury sentences. We fail to see how the failure to give the instruction could have caused appellant egregious harm. Moreover, we note that the trial judge in this case instructed the jury that they were "not to discuss among [them]selves how long the defendant [would] be required to serve" his sentence. We conclude this instruction was curative in nature since it discouraged the jurors from imposing a greater sentence. See Roberts v. State, 849 S.W.2d 407, 410 (Tex. App.--Fort Worth 1993, pet. ref'd). Because appellant has not shown that the failure to comply with article 37.07, section 4(a) caused him egregious harm, we conclude appellant has not established his right to reversal in this case. See Almanza, 686 S.W.2d at 171. We overrule appellant's sole point of error.
        In a footnote, appellant notes that the judgment in this case erroneously reflects that the trial court made the affirmative finding on use of a deadly weapon when the jury was the fact finder at punishment. The State concedes error and agrees that the judgment should be reformed. See DeAnda v. State, 769 S.W.2d 522, 523 (Tex. Crim. App. 1989) (when jury determines defendant's guilt and punishment, jury is proper fact finder to determine use of deadly weapon). Because the judgment in this case erroneously reflects that the trial judge, not the jury, made the affirmative finding, we reform the judgment to reflect that the jury made the affirmative finding on use of a deadly weapon. See Tex. R. App. P. 80(b); DeAnda, 769 S.W.2d at 523.
        We reform the trial court's judgment to reflect that the jury made the affirmative finding on use of a deadly weapon. As reformed, we affirm the trial court's judgment.
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
 
 
File Date[12-31-96]
File Name[941155F]