Neal, Melvin Daniel v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed May 26, 2005

 Affirmed and Memorandum Opinion filed May 26, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01263-CR

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MELVIN DANIEL NEAL, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 942,160

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M E M O R A N D U M O P I N I O N

A jury convicted appellant, Melvin Daniel Neal, of aggravated assault and assessed punishment at twelve years= imprisonment. In his sole issue, appellant contends that the trial court erred by not including in the punishment charge the Agood conduct time@ instruction required by Texas Code of Criminal Procedure article 37.07, section 4(a). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

  AGood Conduct Time@ Instruction

In his sole issue, appellant contends that the trial court committed reversible error by failing to include in the punishment charge the complete Agood conduct time@ and parole instruction required by Texas Code of Criminal Procedure article 37.07, section 4(a). When, as here, the judgment contains an affirmative finding of a deadly weapon, the trial court must charge the jury with the statutory Agood conduct time@ and parole instruction provided in article 37.07, section 4(a). See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2004B05).

The complete instruction provided in article 37.07, section 4(a) is as follows:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

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.

Id. (emphasis added).

In this case, the trial court omitted the italicized language, which pertains to Agood conduct time,@ from the instruction. Because the complete article 37.07, section 4(a) instruction is statutorily required, the trial court erred by deviating from the statutory language. See Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).[1]

Although the trial court erred by omitting the Agood conduct time@ portion of the instruction, appellant did not object to this omission in the trial court. Therefore, we may only reverse if appellant was so egregiously harmed that he did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh=g). Any harm suffered must be actual and not merely theoretical. Cormier v. State, 955 S.W.2d 161, 164 (Tex. App.CAustin 1997, no pet.). We determine the actual degree of harm in light of the entire jury charge, the state of the evidence including contested issues and the weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

To support his argument that he was egregiously harmed, appellant notes that the jury was not presented with the required portion of the instruction which provides that A[i]f a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.@ Appellant maintains that jurors are prone to increase sentences based on their misconceptions of good conduct time, and therefore, the jurors were

more likely to increase appellant=s sentence because they were not informed that appellant=s Agood conduct time@ could be taken away.[2]

The harm that appellant asserts in this issue is purely speculative. There is nothing in the record to demonstrate that the jury in this case considered or applied the concept of Agood conduct time@ when assessing appellant=s sentence. Consequently, a finding of egregious harm, or any harm, would require utter speculation as to whether the omission of the Agood conduct time@ language had any effect on the sentence imposed by the jury. See Bolden v. State, 73 S.W.3d 428, 434 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (jury charge omitted Agood conduct time@ portion of the parole instruction, but error was not reversible because the appellant did not identify any Aactual@ harm, but instead relied upon mere speculation regarding what the jury might have considered); Myres v. State, 866 S.W.2d 673, 674 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (jury charge did not include parole instruction, but a finding of egregious harm, or any harm, would be utter speculation because nothing in the record demonstrated what the particular jury in that case thought about the subject).

Moreover, the jury instruction stated that the application of parole law could not accurately be predicted in appellant=s case. It also stated that the jury could not consider the manner in which parole law might specifically be applied to appellant. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a). Absent evidence to the contrary, we must presume the jury followed and understood these instructions. See Stokes v. State, 74 S.W.3d 48, 51 (Tex. App.CTexarkana 2002, pet. ref=d) (citing Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996)). Applying this presumption, we conclude that appellant was not harmed because the jury could not consider how the application of good conduct time, under the parole laws, would affect appellant=s individual sentence.

We conclude appellant has failed to demonstrate that he was egregiously harmed by the trial court=s omission of the Agood conduct time@ portion of the parole instruction. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed May 26, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The trial court likely omitted the Agood conduct time@ portion of the instruction because it only marginally applies to appellant=s case. When, as here, the judgment contains an affirmative finding of a deadly weapon, a defendant is not eligible for release on mandatory supervision, regardless of how much Agood conduct time@ he might accrue, nor does his Agood conduct time@ make him eligible for parole any sooner than he would be without Agood conduct time@credits. See Luquis, 72 S.W.3d at 362. Therefore, the only manner in which Agood conduct time@ may affect appellant=s time of incarceration is for the parole board to consider appellant=s accumulation of Agood conduct time@ as a factor for release, once appellant becomes eligible for parole. See id. at 360 n.4.

[2] In support of his argument, appellant relies on the following language from the legislative history of Article 37.07, section 4(a): AThere has been an outcry from public citizens serving as jurors that the sentences that have been handed down have differentiated greatly from the sentences actually served. Jurors have indicated in some instances that they were recommending even longer sentences in order to compensate for the time which would be knocked off the sentence by the combination of good time credit and eligibility for parole . . . . Public citizens serving as jurors from across the State have indicated that they need to be informed that the defendant may, but will not necessarily, be incarcerated for the full length of the sentence imposed; and guidelines that are used to reduce the sentences through parole and good time credit.@ House Comm. On Jurisprudence, Bill Analysis, Tex. S.B. 37, 69th Leg. (1985).