Opinion
No. 05-04-01536-CR
Opinion Filed June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F04-49423-KU. Affirmed.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Edward Earl Facion of burglary of a building and assessed punishment, enhanced by two previous felony convictions, at ten years in prison. In two issues, appellant complains of charge error. We affirm. In his first issue, appellant complains the trial court reversibly erred by giving the jury the wrong parole instruction in the punishment charge. Because appellant's state jail felony conviction was enhanced by two prior felony convictions, the jury should have been charged in accordance with section 4(c) of article 37.07 of the Texas Code of Criminal Procedure, which provides:
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.(Emphasis added.) Tex. Code Crim. Proc. Ann. Art. 37.07, § 4(c) (Vernon Supp. 2005-05). Instead, the jury was charged as follows:
Under the law applicable to the 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-fourth of the sentence imposed or 15 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.(Emphasis added.) This instruction is not found in the code of criminal procedure. Appellant argues this charge gave the impression that he was "some special type prisoner and should be punished and not given credit for his good conduct" and "should be penalized at least two years in prison." The State concedes that the trial court gave the wrong charge but argues any error was harmless in light of the record. We agree with the State. The level of harm that appellant must show to warrant reversal depends on whether he objected at trial. The record shows appellant objected to pages seven and eight of the charge as "confusing and misleading," although he stated he understood that the code of criminal procedure provided for the language. Pages seven and eight contain five paragraphs regarding parole; one of these paragraphs contains the incorrect eligibility instruction. Appellant did not lodge the complaint he makes on appeal. Because appellant did not make the trial court aware that the charge contained an incorrect parole eligibility instruction, we conclude appellant did not preserve his error. When a defendant does not object to the charge error complained of on appeal, he can obtain reversal "only if the error is so egregious and created such harm that he `has not had a fair and impartial trial' — in short `egregious harm.'" See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). In determining whether egregious harm occurred, we examine the entire charge; the state of the evidence, including any contested issues and weight of the probative evidence; arguments of counsel; and any other relevant information. See Hutch v. State, 922 S.W.2d 166,171 (Tex.Crim.App. 1996). Beginning with the charge itself, in addition to the incorrect eligibility instruction, the jury was also given instructions that we view as mitigating or curative. In particular, the jury was also instructed as follows:
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.We presume the jury followed the trial court's curative instructions regarding the manner in which the parole law may be applied to an accused. Guillory v. State, 956 S.W.2d 135, 137 (Tex.App.-Beaumont 1997, no pet.). Moreover, there is nothing in the record to suggest jurors were confused by the charge and nothing to suggest the jury considered or applied parole law in assessing appellant's punishment. With respect to the evidence in this case, the police caught appellant burglarizing a convenience store. Specifically, the police responded to a burglary alarm call at a convenience store that had closed three hours earlier. As the police arrived at the scene, appellant was crawling out of a large hole in a roll-up door from inside of the store and a second man was standing nearby. Several cases of beer were next to appellant's hands. Inside the store, the door to the cooler where the beer was stored was broken. Both appellant and his accomplice fled on foot, and the police chased down appellant. In addition to the evidence at guilt-innocence, the State presented evidence that appellant had thirteen previous felony and misdemeanor convictions. In fact, the State argued that appellant had committed a crime causing propery damage every year that he was not in prison. In light of his previous criminal record, the State asked jurors to assess a minimum sentence of ten years; appellant asked for the minimum sentence, two years Finally, we recognize the prosecutor referenced parole during closing argument. In particular, he asked for a minimum of ten years and told the jury "[appellant's] eligible for parole after one-fourth of that time." Defense counsel objected that "[t]he charge says for them not to consider how long he is to do and I believe that's a mistatement of the law." The trial court sustained the objection, and the prosecutor went on to explain that, under the charge, the jury was not "to consider how much time [appellant] will get off." In short, both defense and prosecutor reminded jurors that they could not consider how much time appellant would actually serve. In conclusion, the charge contained curative or mitigating instructions; there was no evidence the jury was confused by the charge or that the jury attempted to apply the parole laws when assessing a sentence; the evidence of guilt was overwhelming and there was evidence appellant had thirteen prior convictions; and the jury assessed punishment at far less than the maximum allowed by law, which was twenty years. Considering all these factors, we conclude appellant was not egregiously harmed by the erroneous parole instruction. We resolve the first issue against appellant. In his second issue, appellant complains the trial court erred in failing to sua sponte instruct the jury that before it could use extraneous offense evidence against him, it must first find beyond a reasonable doubt that appellant committed the offenses. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon Supp. 2004-05). As extraneous offense evidence, appellant points to his thirteen misdemeanor and felony convictions introduced by the State. Although prior convictions must be properly proved, prior convictions need not be re-proved beyond a reasonable doubt. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). Consequently, the trial court is not required to give a reasonable doubt instruction on evidence of a defendant's prior criminal record. Bluitt, 137 S.W.3d at 54. Because all of the evidence appellant complains of was in the form of prior convictions, the trial court did not err in failing to give the reasonable doubt instruction in this case. We resolve the second issue against appellant. We affirm the trial court's judgment.
Interestingly, in its brief, the State quotes the code of criminal procedure for the instruction the trial court should have given; however, this Court could not locate any such instruction in the code.