WILLIAM WADE FORD, III v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-01-164-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

WILLIAM WADE FORD III ,   Appellant,

v.

THE STATE OF  TEXAS  , Appellee.

On appeal from the 377th District Court

of Victoria  County,  Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Rogelio Valdez

Appellant, William Wade Ford III (Ford), was found guilty of delivering cocaine. Ford argues that the trial court erred by submitting an improper jury charge. We affirm.

Ford was found guilty of delivering one to four ounces of cocaine, a second-degree felony. He received a sentence of 16 years and was fined $9,000.00. In his sole issue, Ford argues that the jury charge concerning parole was wrong.

The trial court used the jury charge in article 37.07 ' 4(c) of the Code of Criminal Procedure. It states that the defendant will be eligible for parole when Athe actual time served plus any good conduct time earned equals one-fourth of the sentence imposed.@ Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(c) (Vernon Supp. 2002).

Ford contends that article 37.07 ' 4(c) does not apply to this case. He claims that article 37.07 ' 4(a) contains the correct charge, which states the defendant will be eligible for parole when Athe 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.@ Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(a) (Vernon Supp. 2002). Because the wrong jury charge was used, Ford argues, the jury was led to believe that he would be eligible for parole earlier than he in fact would.

Article 37.07 ' 4(a) applies (1) if the defendant is found guilty of an offense listed under article 42.12 ' 3g(a)(1) of the Code of Criminal Procedure or (2) if the judgment contains an affirmative finding under article 42.12 ' 3g(a)(2) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(a) (Vernon Supp. 2002); Muhammad v. State, 830 S.W.2d 953 (Tex. Crim. App. 1992) (affirming trial court=s use of jury charge pursuant to article 37.07 ' 4(a) where offense was under Texas Penal Code ' 29.03, which is on the article 42.12 ' 3g(a)(1) list). If the defendant was convicted of a capitol felony, then article 37.07 ' 4(a) does not apply. Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(a) (Vernon Supp. 2002). An offense under chapter 481 of the Health and Safety Code is on the ' 3g(a)(1) list if punishment is increased under ' 481.134(c), (d), (e), or (f), or if the defendant was previously convicted of an offense for which punishment was increased under those subsections. Tex. Code Crim. Proc. Ann. art. 42.12 ' 3g(a)(G) (Vernon Supp. 2002).

This case involves a second-degree felony, which is not a capitol felony. Tex. Health & Safety Code Ann. ' 481.112(c) (Vernon Supp. 2002) (stating that delivery of one to four grams of cocaine is a second-degree felony). Therefore, the capitol-felony exception does not apply. Also, neither of the two prerequisites for article 37.07 ' 4(a) applies. No affirmative finding under ' 3g(a)(2) exists in the judgment, and the only relevant offense under ' 3g(a)(1) does not apply because Ford had no increased punishment in this case and did not have increased punishment previously. Accordingly, we hold that article 37.07 ' 4(a) does not apply to this case. We now determine if article 37.07 ' 4(c) applies.

Article 37.07 ' 4(c) applies (1) if the offense is a second or third-degree felony, (2) if a prior conviction was alleged for enhancement under ' 12.42(a) of the Texas Penal Code, or (3) if the maximum term is 60 years or less, with some other conditions. Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(c) (Vernon Supp. 2002); Reynoso v. State, 833 S.W.2d 754, 758 (Tex. App.BHouston [1st Dist.] 1992, pet. ref=d) (affirming trial court=s use of jury charge pursuant to article 37.07 ' 4(c) where offense was a second-degree felony). If the defendant is found guilty of an offense listed under article 42.12 ' 3g(a)(1) or if the judgment contains an affirmative finding under article 42.12 ' 3g(a)(2), then article 37.07 ' 4(c) does not apply. Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(c) (Vernon Supp. 2002); Muhammad, 830 S.W.2d 953, 956 (not applying article 37.07 ' 4(c) where offense was under Texas Penal Code ' 29.03, which is on the article 42.12 ' 3g(a)(1) list).

We have already determined that ' 3g(a)(2) is irrelevant to this case and that Ford=s offense is not listed under ' 3g(a)(1). Those two exceptions to article 37.07 ' 4(c) are therefore inapplicable. Ford=s offense is a second-degree felony, a sufficient condition to use the jury charge in article 37.07 ' 4(c). Hence, article 37.07 ' 4(c) applies, which is the one used by the trial court, and the trial court used the correct jury charge regarding parole.

We affirm the trial court=s judgment.

ROGELIO VALDEZ

CHIEF JUSTICE

Do not publish.

Tex. R App. P. 47.3.

Opinion delivered and filed

this 8th day of August, 2002.