James Edward Hightower v. The State of Texas--Appeal from 204th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-148-CR

JAMES EDWARD HIGHTOWER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 204th District Court

Dallas County, Texas

Trial Court # F93-04265-VQ

O P I N I O N

Appellant Hightower appeals from his conviction for possession of cocaine (under 28 grams), enhanced by two prior felony convictions, for which he was sentenced to twenty-six years in the Texas Department of Criminal Justice, Institutional Division.

The evidence overwhelmingly proved that Appellant possessed the cocaine and was sufficient to support the conviction.

In the punishment phase Appellant pled "true" to the two enhancement allegations. The State introduced evidence that Appellant had ten prior convictions, seven felonies and three misdemeanors.

Appellant appeals on one point of error:

The punishment charge delivered by the trial court was fundamentally defective for failing to instruct the jury concerning the law of parole as required by the Texas Code of Criminal Procedure, art. 37.07, 4, and thereby deprived Appellant of a fair trial.

At the conclusion of the punishment hearing the trial court afforded the parties an opportunity to object to the court's charge. Appellant's counsel stated she had no objections. With regard to the issue of parole, the trial 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."

Appellant contends the court should have given the instruction mandated by article 37.07, 4(b), to-wit:

Under the law applicable in this case the defendant, if sentenced to a term of imprisonment, may earn time off for 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 work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct prison authorities may also take time 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 actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or fifteen years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.

It cannot be accurately predicted how the parole law and good conduct time might be applied to the 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 the defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

Appellant contends that the failure of the trial court to charge the above mandated instruction was fundamental error and was harmful to Appellant.

Abnor v. State, 871 S.W.2d 726, 731-732, holds that an erroneous or incomplete jury charge does not result in automatic reversal of a conviction. Abnor holds that when reviewing a charge error, the appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge; and second, whether sufficient harm resulted from the error to require a reversal. If the appellant did not object at trial, as here, then the appellant must show egregious harm before the judgment will be reversed. Almanza v. State, 686 S.W.2d 157, 172. Almanza further holds that the reviewing court must review the entire charge and also the state of the evidence before deciding whether the charge error was so harmful as to require a reversal. Almanza at 172.

The evidence of Appellant's guilt was overwhelming as was the evidence to support the finding of "true" to the two alleged prior felony conviction. In fact, during punishment, seven prior felony conviction plus three prior misdemeanor conviction were proved.

The range of punishment which could have been assessed was not less than twenty-five years or more than ninety-nine years. The jury assessed twenty-six years.

In evaluating the trial record as a whole, it is clear Appellant incurred no harm at all, much less egregious harm, by the failure of the trial court to give the mandated instruction on parole.

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 2, 1995

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