Kert Jerome Parker v. The State of Texas--Appeal from 282nd District Court of Dallas County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KERT JEROME PARKER, )

) No. 08-03-00173-CR

Appellant, )

) Appeal from the

v. )

) 282nd District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0252525-KS)

)

O P I N I O N

 

Appellant, Kert Jerome Parker, appeals from his convictions of evading arrest, unlawful possession of a firearm by a felon, and aggravated robbery.[1] A jury found Appellant guilty and assessed a punishment of 20 years= confinement for evading arrest, 5 years= confinement for unlawful possession of a firearm by a felon, and 22 years= confinement for aggravated robbery. On appeal, Appellant raises seven issues in which he challenges the factual sufficiency of his conviction of aggravated robbery, the legal and factual sufficiency of his conviction of unauthorized possession of a firearm, raises an ineffective counsel claim, challenges the trial court=s decision to deny his motion for new trial based on a juror mistakenly sitting on the jury, and finally raises two jury charge errors pertaining to parole law instructions. We affirm.

FACTUAL SUMMARY

 

On July 3, 2002, at approximately 12:30 a.m., Lonzo Hurd stopped at the Tiger Mart located on Lake June Road in Dallas, Texas to buy a lottery ticket. As he left the store, a young black man of medium height approached and started talking with him. Mr. Hurd had parked his car on the west side of the store, in a well-lit area. At the time he parked, no other car was parked beside him. The young man continued to walk alongside Mr. Hurd as he walked to the side of the building towards his car. When Mr. Hurd walked around the side of the building, he noticed a car was parked beside his car; and the car was parked with the rear end of the car first, so that Mr. Hurd=s driver=s door was alongside the other vehicle=s driver=s side rear door. The young man talking to Mr. Hurd got into the driver=s side of the vehicle and as Mr. Hurd was trying to enter his vehicle, a another man came up behind him, put a pistol to his head and instructed him to Adrop out[2].@ This individual was later identified as the Appellant. Mr. Hurd testified that he told the Appellant that he did not have anything and the Appellant responded that yes, he did have something and reached inside Mr. Hurd=s pockets and pulled out his wallet. While still holding the gun to Mr. Hurd=s head, the Appellant went through his wallet and told him to get inside his vehicle. The Appellant then reached into Mr. Hurd=s vehicle and grabbed a pack of cigarettes that were laying on the dashboard. The Appellant then got into the front passenger seat of his own vehicle. Mr. Hurd then heard the individual sitting in the backseat of the vehicle tell the Appellant to give Mr. Hurd back his belongings and to let him go. Appellant then threw the cigarettes at this individual, and he in return threw the cigarettes to Mr. Hurd and the individual driving the car reached out and handed Mr. Hurd his money, which was only about $4. The Appellant and the two other men then sped off.

At this point, Mr. Hurd had no idea what had happened to his wallet. It was not until he put his car in reverse that he noticed his wallet was underneath his vehicle. Mr. Hurd picked up his wallet and drove home. He testified that at this point, he was simply happy to be alive and that it was not until he pulled into the driveway of his home that he became upset and decided that he could not just let things go. He immediately drove back to the Tiger Mart, located only a few minutes from his home, and notified the store clerk that he had been robbed and asked her to call the police.

When the police arrived at the Tiger Mart, Mr. Hurd talked with the police for about fifteen minutes and then went home. According to Officer Fangman=s testimony, Mr. Hurd identified the three suspects in the vehicle, including the gunman. The gunman was described as a black male, about 5' 6" tall, weighing about one hundred fifty pounds, with black hair, possibly braided, no facial hair, and approximately nineteen years old. Mr. Hurd described the vehicle as a four-door light colored Chevy Caprice. Officer Fangman broadcasted this information. He also spoke to the store clerk and requested the surveillance tapes and she told him that only the manager could get those for him, so he asked her to hold those for him. He also testified that he did not take any materials to be fingerprinted and that he knew the store clerk well and that she was not the type to destroy evidence.

 

Officer Marsh, who was also on duty on that night, received the broadcast describing the Chevy Caprice and its involvement in an aggravated robbery. At approximately 1:30 a.m., he was sitting in a parking lot completing some paperwork when he saw a Chevy Caprice matching the broadcast description pass by. In accordance with the standard operating procedure, he proceeded to attempt a traffic stop. He started driving behind the vehicle and radioed in to dispatch to let them know he may have located the suspect vehicle. He then turned the squad car=s emergency lights on and the Caprice stopped. He noticed that there was only one individual in the vehicle and that this person appeared to be very tense and was closely watching him. He also remembered the suspect was believed to be armed. Therefore, rather than approach the vehicle, Officer Marsh opened the squad car door and ordered him to put his hands outside the window where he could see them to ensure he was not armed. The Caprice suddenly took off. Officer Marsh then turned on his siren and chased the car a short distance until it drove into an apartment complex, onto the lawn, and the driver jumped out of the vehicle and started running through the complex. Officer Marsh also stepped out of his vehicle and started to run after the Appellant but lost sight of him so he radioed in an alert.

Both Officer Castro and Officer Elliott responded to Officer Marsh=s call regarding the speed chase. Officer Castro arrived first, in time to see Appellant drive the car onto the apartment complex=s lawn and jump out. The officer followed the Appellant on foot and radioed in his location and a description of Appellant=s clothing, which included that he was wearing a red shirt. Officer Elliott arrived at the scene from another direction and was able to corner Appellant with his patrol car. He ordered Appellant to get on the ground, handcuffed him, and placed him in the squad car; then he drove Officer Castro and the Appellant back to where the Chevy Caprice had been abandoned. He then turned over the Appellant to Officer Marsh.

 

Officer Marsh also searched the vehicle and found a revolver underneath the passenger=s front seat. He confiscated the weapon and testified that it had six shots in the cylinder.

Detective Sherek, of the Dallas Police Department, who was on call that night, was called into the office some time between 2:30 and 3 a.m. He met the Appellant and following standard procedure in the investigation of a crime, took a polaroid of him. Detective Sherek gathered a few photographs and created a photo lineup. The next day, he went to Mr. Hurd=s place of business and showed him the photo lineup. Mr. Hurd picked out Appellant=s photo even though the Appellant had a mustache and no braids. Mr. Hurd testified that he was 99 2 percent sure that the Appellant was the perpetrator.

Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788 89, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421 22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

 

In reviewing a factual sufficiency of the evidence challenge, we consider all of the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the jury. See Davila v. State, 930 S.W.2d 641, 647 (Tex.App.- El Paso 1996, pet. ref=d). Our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 134. A jury=s verdict is not manifestly unjust merely because the fact finder resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).

In Issue One, Appellant challenges the factual sufficiency of the evidence to support his conviction for aggravated robbery. Specifically, Appellant argues that the Adescription of the robber is markedly different from Appellant=s appearance.@ Mr. Hurd testified that he was focusing on the gun not on the perpetrator. As such, Appellant contends that Mr. Hurd was mistaken in his identification of the Appellant; Mr. Hurd=s testimony regarding his identification was insufficient to warrant the verdict.

 

In this instant case, Mr. Hurd testified that during the assault, he was primarily concentrating on the gun but was able to see the Appellant out of the side of his eye. He also indicated that he would not have identified the Appellant as being the perpetrator from the photo lineup unless he was certain that it was him. He further testified that he was 99 2 percent certain that his identification was correct. He described the perpetrator as having no facial hair, with possibly braided hair, and being a young man about 5' 6" tall and weighing one hundred fifty pounds. The Appellant, however, had no braids, had facial hair, and was more like six feet tall, weighed about two hundred and twenty-five pounds and was close to age thirty.

The defense also introduced testimony of the Appellant=s brother in-law and his girlfriend at the time, which attempted to place Appellant at a different location during the time the alleged robbery occurred. Appellant=s brother-in-law, James Brown, testified that on July 2, 2002, Appellant came over to his house to get some clothing and use the phone. Appellant arrived some time between 12:10 and 12:15 a.m. and did not leave Mr. Brown=s home until 1 a.m. Appellant=s girlfriend at the time testified that she and the Appellant were fighting that night and that he left to his sister=s house and returned later that night. She was unable to provide a time frame, but did testify that Appellant dropped off some clothes and then left again. She also testified that Appellant might have been wearing a red sleeveless shirt that night and that he had tattoos up and down both of his arms. Mr. Hurd, however, did not provide the police with a description of any distinguishing marks on Appellant=s body. While there were obvious discrepancies between Mr. Hurd=s description of Appellant and Appellant=s actual appearance, these conflicts were up to the jury to resolve. See De Los Santos v. State, 918 S.W.2d 565, 569 (Tex.App.--San Antonio 1996, no pet.).

 

Given all the evidence presented at trial, a rational jury could have concluded that Mr. Hurd=s identification of the Appellant was accurate. It is the sole province of the jury to determine what weight to give contradictory testimonial evidence since it turns on the evaluation of credibility and demeanor. See Cain, 958 S.W.2d at 407. Furthermore, a verdict is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. After reviewing the evidence, we find that it supports the jury=s findings that Mr. Hurd=s identification of the Appellant was correct and not so weak as to be clearly or manifestly unjust, nor is it contrary to the overwhelming weight of the evidence. Issue One is overruled.

In Issue Two and Issue Three, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction for unauthorized possession of a firearm. Appellant contends that the evidence presented at trial failed to show that Appellant possessed the gun. Therefore, Appellant argues that no reasonable trier of fact could have found the essential elements of the offense. Furthermore, taken alone, the State=s evidence is too weak to support the verdict and the proof of guilt is against the great weight and preponderance of the evidence.

Under Section 46.04 of the Texas Penal Code:

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after the conviction and before the fifth anniversary of the person=s release from confinement following conviction of the felony or the person=s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

 

Tex.Pen.Code Ann. ' 46.04(a)(Vernon Supp. 2004-05). Possession is defined by the Penal Code as Aactual care, custody, control, or management.@ Tex.Pen.Code Ann. ' 1.07(a)(39) (Vernon Supp. 2004-05). If the firearm is not found on the accused=s person or is not in the exclusive possession of the accused, the evidence must affirmatively link the accused to the firearm. Davis v. State, 93 S.W.3d 664, 667 (Tex.App.--Texarkana 2002, pet. ref=d); see Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). An affirmative link may be established through direct or circumstantial evidence. Brown, 911 S.W.2d at 747. Some non exhaustive factors that may affect the determination of an affirmative link include whether the contraband was (1) in a car driven by the accused, (2) in a place owned by the accused, (3) conveniently accessible to the accused, (4) in plain view, (5) found in an enclosed space, or (6) the conduct of the accused indicated a consciousness of guilt. Corpus v. State, 30 S.W.3d 35, 38 (Tex.App.--Houston [14th Dist.] 2000, pet. ref=d); Gilbert v. State, 874 S.W.2d 290, 298 (Tex.App. -Houston [1st Dist.] 1994, pet. ref=d). The number of factors present is not as important as the logical force or the degree to which the factors, alone or in combination, tend to affirmatively link the accused to the firearm. See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.--Tyler 1995, pet. ref=d).

It is undisputed in this case that Appellant is a felon. Instead, Appellant=s point of contention revolves around the alleged State=s failure to prove he had possession of the firearm. In this case, the Appellant was the driver and sole passenger of the vehicle and the gun was readily accessible to him. When Officer Marsh initially stopped the Appellant, he described him as appearing to be tense. Appellant additionally refused to stop the vehicle and instead took Officer Marsh on a speed chase which turned into a foot chase. We find that these affirmative links were sufficient evidence to support Appellant=s conviction of possession of a firearm. Viewing the evidence in the light most favorable to the verdict, a rational jury could reasonably have concluded that Appellant possessed the firearm. We find the evidence to be legally sufficient. Issue Two is overruled.

 

The jury was free to infer from the testimonial evidence at trial that Appellant possessed the gun. The Appellant offered the testimony of his then girlfriend in which she testified that Appellant did not own a vehicle and that she had never seen the Chevy Caprice. Additionally, the vehicle registration form showed that the vehicle was not registered to the Appellant. The jury was free to infer from this testimony that the vehicle was not Appellant=s and that he had no knowledge of the gun. They could have also inferred from the State=s evidence that he knew about the gun and was not expecting to get caught; therefore, he ran without attempting to hide the weapon. After balancing the evidence supporting the verdict against that which contradicts it, we find that the finding of guilt is not against the great weight of the evidence. See Johnson, 23 S.W.3d at 11. We overrule Issue Three.

Ineffective Assistance of Counsel

In Issue Four, Appellant contends he received ineffective assistance of counsel when his trial attorney introduced the testimony of Dallas Police Officer James Jablon, without first interviewing him. Additionally, Appellant contends that his trial counsel was ineffective when he failed to object to the trial court=s omission of the jury instruction to disregard the testimony regarding the extraneous offense Officer Jablon mentioned in his testimony.

 

In order to establish ineffective assistance of counsel, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below an objective standard of reasonableness based upon prevailing professional norms, and that there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. See Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992). The review of counsel=s representation is highly deferential and we must indulge a strong presumption that counsel=s conduct falls within a wide range of reasonable representation. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Thus, the appellant must overcome the presumption that under the totality of the circumstances, the challenged action might be considered trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Representation is not ineffective simply because, in hindsight, the attorney could have or even should have done something differently. Godwin v. State, 899 S.W.2d 387, 391 (Tex.App.-- Houston [14th Dist.] 1995, pet. ref=d).

In apparent pursuit of his trial strategy, Appellant=s counsel called to the stand Officer Jablon to testify that on the night in question at approximately 12:30 a.m., he responded to a disturbance call on Scyene Road. When he arrived at the scene, he discovered that gun shots had been fired into the convenience store from the parking lot of the apartment complex he was called out to. Witnesses informed Officer Jablon that the vehicle was a late model, light-colored or white Chevy Caprice. The vehicle had temporary dealer tags and the security guard of the apartment complex was able to provide him with the number from the dealer tag and an expiration date. However, Appellant=s defense counsel had anticipated that Officer Jablon would testify that he did not get the numbers of the license plate until he arrived at the scene where Appellant was apprehended. Upon discovering the discrepancy, Appellant=s defense counsel moved for a mistrial which the trial court denied. However, the trial court did instruct the jury to disregard Officer Jablon=s entire testimony.

 

The record before us establishes that Appellant=s trial counsel was attempting to establish a defense strategy that on the night in question there were two vehicles with matching descriptions in the area. One which was occupied by the perpetrator and the other two suspects, and a second Caprice that Appellant was driving. As such, Officer Jablon=s testimony was a critical component of defense counsel=s trial strategy. Appellant, however, argues that defense counsel=s failure to interview Officer Jablon and discover the discrepancy before calling him to the witness stand resulted in ineffective assistance. The record before us does not support the conclusion that Appellant=s trial counsel provided ineffective assistance. It is only in hindsight that we see that defense counsel=s strategy failed when Officer Jablon testified to such information.

A[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.@ McFarland, 928 S.W.2d at 501, citing Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. A decision not to investigate must be directly assessed for reasonableness under all the circumstances, applying a heavy measure of deference to counsel=s judgments. Id. Defense counsel stated to the trial court that the reason he did not investigate or interview Officer Jablon prior to putting him on the stand was because it was not the normal practice of defense attorneys to do this. Furthermore, Appellant has not shown that the result of the proceedings would have been different if Officer Jablon=s testimony would have not been introduced.

 

Appellant further contends that defense counsel failed to object to the trial court=s omission of the requested instruction on the jury charge to disregard Officer Jablon=s testimony. Appellant argues that had defense counsel not presented the testimony of Officer Jablon, and had the jury not heard such testimony, the jury would have possibly not given the Appellant the maximum sentence on the evading arrest charge nor the sentences for the other two offenses. However, the trial court instructed the jury to disregard Officer Jablon=s testimony during the trial. In so doing, the trial court cured any potential error. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). The testimony was not such that it clearly calculated to inflame or prejudice the minds of the jury and was of such a character that the impression it created on the jury cannot be withdrawn from the jury. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). We further assume that the jury followed the trial court=s instructions and did not consider such testimony in assessing Appellant=s punishment. See id.

Appellant has not met the burden of showing that there is a reasonable probability that but for the unprofessional errors, the result of his trial would have been different. Additionally, we will not hold that a trial strategy that fails necessarily results in an ineffective assistance of counsel finding. In considering the totality of the circumstances, the fact that Officer Jablon=s testimony surprised defense counsel did not distract from the effectiveness of the representation Appellant received. Appellant has failed to show ineffective assistance of counsel. Issue Four is overruled.

Improper Jury Panel

 

In Issue Five, Appellant argues that the trial court erred in refusing to grant his motion for new trial after it was discovered that a panelist who was challenged for cause actually served on the jury. It was not discovered until after the trial was over that Juror Osburn, who had been challenged for cause, mistakenly served on the jury. At the hearing on the motion for new trial, Juror Osburn also testified that he heard his name being called as being selected for the jury, so he went and sat in the jury box. He testified that he did not have an alternative motive for sitting in the jury and that it was an honest mistake.

It is undisputed that the trial court granted the challenge for cause for Juror Osburn. Appellant argues that the trial court did so because it was obvious that Juror Osburn had some bias or prejudice that prohibited him from being a qualified juror. As such, Appellant was harmed by having Juror Osburn sit on the jury.

Appellant, referring to the circumstances as unusual, contends that it would have been difficult for counsel to recall the sixty panelists summoned for jury duty and to properly identify Juror Osburn as having been challenged for cause. He further argues that defense counsel did not memorize all the juror=s faces and states that counsel=s failure to realize that a mistaken juror had been seated should not be held against him.

The proper time to raise an objection to the impaneling of the jury would have been before the panel is sworn. See Pogue v. State, 553 S.W.2d 368, 369 (Tex.Crim.App. 1977). AIt is the duty of the parties to see that as impaneled, the box does not contain a juror who has been challenged by striking; should such a juror remain and be sworn, the court is not obliged to discharge him and substitute another juror. A fortiori, the verdict is not vitiated thereby--at least unless the complainant can affirmatively show that the unaccepted juror was prejudiced.@ Anderson v. State, 142 Tex.Crim. 384, 154 S.W.2d 482, 483 (1941). As such, it was the failure of defense counsel to meet his responsibility of ensuring that there had not been a mistake in the impaneling of the jury.

 

We do not agree with Appellant that he was harmed by having Juror Osburn serve on the jury. At the hearing on the motion for new trial, evidence was revealed which indicated that Juror Osburn had a family member sentenced to prison. It is more likely then, if anyone was harmed by him sitting on the jury, it was the State. Having reviewed the record, we find no injury to the Appellant despite defense counsel=s lack of due diligence in discovering the mistake. As such, we overrule Issue Five.

Jury Charge Error

In Issue Six, Appellant argues that the trial court erred in failing to provide the correct instruction as mandated by Article 37.07, sec. 4(c) of the Code of Criminal Procedure in the punishment charge for the unlawful possession of a firearm by a felon. Similarly, in Issue Seven, Appellant contends that the trial court erred in failing to include the complete charge as mandated by Article 37.07, sec. 4(a) of the Code of Criminal Procedure.

 

We review a charge error utilizing a two-step process. Orona v. State, 52 S.W.3d 242, 249 (Tex.App.--El Paso 2001, no pet.). We first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(Op. on reh=g); Orona, 52 S.W.3d at 249. If error exists, we must then determine whether sufficient harm was caused by the error to warrant reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant thereby causing Asome harm.@ Ovalle, 13 S.W.3d at 786. If error exists, we must then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. In a case where the defendant did not properly object at trial, we will reverse only if the error is so egregious and created such harm that he was denied a fair and impartial trial. Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. In both circumstances, the harm suffered is examined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

Appellant in this case was not convicted of an offense listed in Article 42.12, sec. 3g(a)(1), and therefore Article 37.07, sec. 4(c) mandates that the trial court instruct the jury at punishment 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 plus any good conduct time earned equals one fourth of the sentence imposed. 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.

Tex.Code Crim.Proc.Ann. art. 37.07, ' 4(c)(Vernon Supp. 2004-05).

In this case, the trial court failed to instruct the jury as mandated by Article 37.07, sec. 4(c) and instead instructed the jury pursuant to Article 37.07, sec. 4(a). Article 37.07, sec. 4(a) is similar to Section 4(c) except for the following italicized language:

 

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.

Tex.Code Crim.Proc.Ann. art. 37.07, ' 4(a)(Emphasis added).

Aggravated robbery is an offense listed in Article 42.12, sec. 3g(a)(1)(F) and as such, Article 37.07, sec. 4(a) mandates the trial court to instruct the jury at punishment with the following:

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

Tex.Code Crim.Proc.Ann. art. 37.07, ' 4(a).

In this case, the trial court failed to instruct the jury as mandated by Article 37.07, sec. 4(a) by omitting the first paragraph of the mandated instruction from the charge. In both instances, the defense counsel failed to object to the court=s charge.

 

A court is statutorily mandated to deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex.Code Crim.Proc.Ann. art. 36.14 (Vernon Supp. 2004). The parole law instruction is a Alegislatively-mandated statement of the law appliable to the punishment phase of the trial.@ Luquis v. State, 72 S.W.3d 355, 363 n.18 (Tex.Crim.App. 2002); Muhammad v. State, 830 S.W.2d 953, 955-56 (Tex.Crim.App. 1992)(parole law instruction is Aan instruction on the law applicable to [the] case@). Thus, a trial court errs by failing to include the mandatory statutory parole instruction in the jury charge. Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.--Dallas 1992, pet. ref=d). In both of these cases, the jury charge provided material varied from the required instruction and therefore the charge was erroneous.

Having come to this conclusion, our next step is to determine whether Appellant has suffered egreious harm. See Almanza, 686 S.W.2d at 171.

Appellant bears the burden of proving egregious harm and he must Apersuade the reviewing court that he suffered some actual harm as a consequence of the charging error. If he is unable to do so, the error will not result in a reversal of his conviction.@ Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994), quoting La Point v. State, 750 S.W.2d 180, 191 (Tex.Crim.App. 1986)(Op. on reh=g). The instruction is designed to increase jury sentences, and thus, favors the State and not defendants. Grigsby, 833 S.W.2d at 576. The parole instruction informs the jury how good conduct time combines with actual time served to determine parole eligibility. Id. The instruction is designed to increase jury sentences. Id.

 

Appellant agrees that he failed to object; however, he argues that the failure to include the proper instructions and to omit the required instruction resulted in Appellant suffering egregious harm. Appellant does not provide any justification for the determination that he would have received fewer number of years as punishment if the proper instruction would have been given.

In this case, we fail to see how the Appellant has suffered egregious harm by the trial court=s failure to include an instruction to the effect that he might be released at an earlier time than his sentence would indicate. As the State argues, the instruction actually was to the benefit of the Appellant because it indicated that Appellant would have to serve one-half of his sentence imposed or thirty years rather than just one-fourth of his sentence, calculated by including good conduct time earned. See Tex.Code Crim.Proc.Ann. art. 37.07, ' 4(a) and (c). With the improper instructions given, the jury could have only reduced Appellant=s sentences. We find that Appellant has made no showing that he was deprived of a fair and impartial trial because of the improper instructions given to the jury. We therefore overrule Issues Six and Seven.

Accordingly, we affirm the trial court=s judgment.

September 23, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

 

[1] Appellant was charged in cause number F-0252524-KS of the second-degree felony offense of evading arrest. In cause number F-0252525-KS, Appellant was charged with the third-degree felony offense of unlawful possession of a firearm by a felon. In cause number

F-0272743-LS, Appellant was charged with the first-degree felony offense of aggravated robbery.

[2] The State in its opening argument defined Adrop out@ as meaning to give me all your money.