Opinion
No. 05-02-00770-CR.
Opinion Issued April 16, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-15175-PS. Affirmed.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
OPINION
In this case, Thomas Edward Scott challenges his conviction for aggravated robbery. In two issues, he complains the parole instruction in his case was erroneous and the appellate record is incomplete. We affirm the trial court's judgment. Appellant was charged with and convicted of aggravated robbery. He contends in his first issue that the jury charge at punishment contained a misstatement of the parole law applicable to his case. Because appellant had been convicted of an offense listed in article 42.12, section 3g(a)(1) of the Texas Code of Criminal Procedure, the trial court should have instructed the jury about good conduct time and its effect on appellant's parole eligibility. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2003). In particular, the jury charge should have instructed the jury that if appellant were sentenced to a term of imprisonment, he would not become eligible for parole "until the actual time served equal[ed] one-half of the sentence imposed or 30 years, whichever [was] less, without consideration of any good conduct time he may earn." Id. The jury charge, however, did not mention good conduct time. At trial, appellant's counsel did not object to the jury charge. Therefore, although the trial court erred by failing to give the statutorily mandated jury instruction found in article 37.07, section 4(a), we may reverse only if appellant was so egregiously harmed that he did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1984). We assess harm in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. See id. Appellant argues that because the jury was not specifically told his parole eligibility would be determined by actual time served, without consideration of good conduct time, the jury might have assessed a longer sentence because "it is a matter of common knowledge that in some circumstances eligibility for release on parole will include good time awarded." The jury charge stated that the application of parole law could not accurately be predicted in appellant's case. It also stated that the jury could not consider the manner in which the parole laws might be specifically applied to appellant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4. Absent evidence to the contrary, we must presume the jury followed and understood these instructions. See Stokes v. State, 74 S.W.3d 48, 51 (Tex.App.-Texarkana 2002, pet. ref'd) (citing Hutch v. State, 922 S.W.2d 166 (Tex.Crim.App. 1996)). Applying the presumption in this case, we conclude appellant was not harmed because even if good conduct time was a matter of "common knowledge" to the jury, the jury could not consider how the application of good conduct time, under the parole laws, would affect appellant's individual sentence. Cf. Stokes, 74 S.W.3d at 51 (holding appellant not egregiously harmed by failure to give article 37.07, section 4(a) instruction because jury charge did contain an instruction that "you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose [because] [s]uch matters come within the exclusive jurisdiction of the board of pardons and paroles"). During argument, appellant's counsel stated to the jury that appellant would not be eligible for parole until he had served half his sentence in "calendar years" and that sentences "aren't nothing anymore." The prosecutor twice stated that appellant would become eligible for parole after thirty years if he received a life sentence. Because the jury found two enhancement paragraphs true in the case, appellant's punishment range was from twenty-five years to life in prison. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2003). The State argued for a life sentence. Nevertheless, the jury assessed only a thirty-five-year sentence. There is no indication in the record that the jury adjusted appellant's sentence based on some knowledge that good conduct time hastens parole eligibility. We conclude appellant was not egregiously harmed by the instruction and resolve his first issue against him. In his second issue, appellant complains the clerk's record is incomplete because it does not contain the jury charge from the guilt-innocence phase of trial. On the date appellant's brief was filed, we ordered the district clerk to supplement the record. The appellate record now contains a supplemental clerk's record with the jury charge from guilt-innocence. Appellant's second issue is now moot, so we resolve it against him. We affirm the trial court's judgment.