Flores, Fidencio v. State

Affirmed and Memorandum Opinion filed September 28, 2004 Affirmed and Memorandum Opinion filed September 28, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00649-CR ____________ FIDENCIO FLORES, Appellant V. THE STATE OF TEXAS, Appellee ___________________________________________________________ On Appeal from the 12th District Court Walker County, Texas Trial Court Cause No. 21,714 ___________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Fidencio Flores asserts that he was egregiously harmed by the trial court=s error in charging the jury in the punishment phase that appellant=s good-conduct time would be counted in determining his eligibility for parole. We disagree and affirm the trial court=s judgment. I. Factual and Procedural Background Appellant was charged by indictment with aggravated assault with a deadly weapon. Appellant pleaded not guilty. The jury convicted him of the offense and made an affirmative finding that appellant used a deadly weapon during the offense. In the punishment phase, the same evidence from the guilt-innocence phase was readmitted, and the State called one witness to provide evidence regarding appellant=s penitentiary packet for his prior conviction of aggravated robbery. Appellant did not cross-examine this witness or provide any new evidence at the punishment phase. In closing argument, appellant=s counsel asked the jury to assess the minimum punishment of five years= confinement. In its closing argument, the State did not ask for a specific punishment, and the State made the following argument: And you know that at the end of that number, this man (pointing) joins y=all again. He walks back out C and it may not be y=all personally; but do you know people? Do you have children? Do they have friends? The question is: When do they get to meet Fidencio Flores? That is the question you get to ask and answer today, because that is the number that you put on him is the answer to that question. You will make that decision today. When do they, when do y=all, get to meet Fidencio Flores face to face, outside? Appellant pleaded true to one enhancement paragraph regarding his prior conviction for aggravated robbery. In its punishment-phase charge to the jury, the trial court included the following instructions regarding parole: 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‑half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. 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. (emphasis added) Appellant did not object to the court=s charge, including the language emphasized above. The jury assessed punishment at ten years= confinement in the Texas Department of Criminal Justice, Institutional Division. II. Issue and Analysis In his sole issue, appellant asserts that the language emphasized above in the trial court=s punishment-phase charge caused him egregious harm. As the State concedes, the trial court erred in including the emphasized language in the charge because appellant=s eligibility for parole will be determined based on his actual time served, without consideration of good-conduct time. See Tex. Gov=t Code ' 508.145(d). Because appellant did not object to this error in the jury charge, we conduct our harm analysis under the egregious-harm standard. See Hutch v. State, 922 S.W.2d 166, 170B71 (Tex. Crim. App. 1996). Errors that result in egregious harm are those which affect Athe very basis of the case,@ deprive the defendant of a Avaluable right,@ or Avitally affect a defensive theory.@ Id. at 171 (quoting Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on reh=g)). In conducting our harm analysis, we may consider the following four factors: (1) the charge itself, (2) the state of the evidence including contested issues and the weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Hutch, 922 S.W.2d at 171. This case presents punishment-phase charge error. The jury already had convicted appellant of aggravated assault with a deadly weapon. Regarding the state of the evidence, the only new evidence at the punishment phase was the penitentiary packet concerning appellant=s prior conviction for aggravated robbery and the state=s witness who provided testimony relating thereto. As to the arguments of counsel, appellant=s counsel attempted to evoke sympathy for appellant and pointed out that the inmate he assaulted was a bigger man. Appellant=s counsel asked for the minimum sentence of five years. The State stressed that appellant had cut another inmate=s face with a razor many times and that appellant had failed to reform his ways despite a seven-year sentence for his previous offense. The State did not ask for a specific sentence but asked the jury to consider how soon it wanted appellant to be out of prison. Although this portion of the State=s argument, which is quoted above, did ask the jury to consider how long appellant should be imprisoned, the State=s argument did not specifically take advantage of the charge error in question. Neither appellant=s counsel nor the State mentioned good-conduct time in closing argument. Given the range of punishment, the jury assessed punishment at the low end C ten years in the context of a range of punishment from five to ninety-nine years or life imprisonment. Finally, the charge itself expressly instructed the jury not to consider the extent to which good-conduct time may be awarded to or forfeited by appellant. It also instructed the jury not to consider the manner in which the parole law may be applied to appellant. We presume that the jury followed these instructions and that these instructions cured any harm from the charge error in question. See Love v. State, 909 S.W.2d 930, 935 (Tex. App.CEl Paso 1995, pet. ref=d). The record in this case does not indicate that the jury disobeyed these curative instructions. We conclude that the trial court=s charge error did not cause egregious harm. See id. (finding no egregious harm where trial court erroneously charged the jury that appellant would be eligible for parole after serving one-fourth of his sentence when appellant actually was not eligible for parole until he had served one-third of his sentence); Guevara v. State, No. 14-97-00555-CR, 1999 WL 694704, at *2B4 (Tex. App.CHouston [14th Dist.] Sept. 9, 1999, pet. ref=d) (finding same charge error as in the instant case not to be egregious harm) (not designated for publication). Accordingly, we overrule appellant=s sole issue on appeal, and we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed September 28, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).