Opinion
No. 10-12-00264-CR
04-11-2013
FREEMAN ARTHUR BROWN, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-2088-C1
MEMORANDUM OPINION
The jury convicted Freeman Arthur Brown of three counts of aggravated sexual assault of a child and assessed punishment at confinement for life in each count. We affirm.
Jury Charge
In his first issue, Brown argues that the trial court erred in not supplementing the jury charge instruction on the effect of good conduct time. Article 37.07 of the Texas Code of Criminal procedure states:
Sec. 4. (a) In the penalty phase of the trial of a felony case ... the court shall charge the jury in writing as follows:TEX. CODE CRIM. PRO. ANN. art. 37.07 §4(a) (West Supp. 2012). The trial court instructed the jury as required by Article 37.07 §4(a). Brown's trial counsel did not object to the charge.
"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."
Brown argues that the instruction improperly implies that a person may be released from prison early and without supervision solely due to accruing good conduct time. He contends that the trial court should have supplemented the instruction to explain that good conduct time is tied to parole.
We have previously decided this precise issue against Brown's position, and we are not persuaded to reconsider our ruling. See Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121 (Tex. App. - Waco November 1, 2012, pet. filed); Mathews v. State, No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *3, (Tex. App.—Waco June 27, 2012, no pet. h.). We overrule the first issue.
In his second issue, Brown complains that the trial court erred in instructing the jury during the punishment phase of the trial not to consider "sympathy" in its deliberations. The trial court instructed the jury, "Do not let personal bias, prejudice, sympathy or resentment on your part or any such personal emotion on your part enter into your deliberations or affect your verdict in this case."
Brown did not object to the jury charge on this basis. We have also previously decided this issue against Brown's position, and we are not persuaded to reconsider our ruling. See Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121 (Tex. App. - Waco November 1, 2012, pet. filed); Mathews v. State, No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *4, (Tex. App.—Waco June 27, 2012, no pet. h.). We overrule the second issue.
Conclusion
We affirm the trial court's judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Do not publish
[CRPM]