Lionel Franklin v. State ( 2015 )

Affirmed and Memorandum Opinion filed September 29, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00559-CR
LIONEL FRANKLIN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Cause No. 13CR0324
MEMORANDUM OPINION
A jury convicted appellant Lionel Franklin, Jr., of possession of a controlled
substance in a drug free zone. The jury sentenced appellant to confinement for twenty
years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant claims there was error in the charge to the jury during the punishment phase.
We affirm.
Appellant was found guilty of possession of cocaine in an amount of one gram or
more, but less than four grams, in a drug free zone.1 Appellant entered a plea of “true”
to the enhancement allegation that prior to the commission of the primary offense, he
was convicted of murder.2 The jury was correctly instructed that the range of
punishment was seven to twenty years.3
In his sole issue, appellant argues the trial court’s charge to the jury on
punishment incorrectly stated the parole law applicable to this case. The punishment
charge included the following instruction on parole law:
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.
...
You are not to consider the manner in which the parole law may be
applied to this particular Defendant.
(Emphasis added.) The instructions given were in accordance with article 37.07 section
4(c) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Art. 37.07 §
4(c). Appellant’s complaint is that this instruction was incorrect in light of section
508.145(e) of the Texas Government Code, which provides:
An inmate serving a sentence for which the punishment is increased under
Section 481.134, Health and Safety Code, is not eligible for release on
1
This offense is a third-degree felony. See Tex. Health & Safety Code § 481.115.
2
Appellant was therefore subject to punishment for a second-degree felony, the range of which
is two to twenty years. See Tex. Penal Code Ann §§ 12.42(a) and 12.33(a).
3
The minimum term of confinement is increased by five years if the offense occurs in a drug-
free zone. See Tex. Health & Safety Code Ann. § 481.134(c).
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parole until the inmate's actual calendar time served, without consideration
of good conduct time, equals five years or the term to which the inmate
was sentenced, whichever is less.
(Emphasis added.) Appellant argues that had the jury known he had to serve a minimum
of five years before he would be eligible for parole, a lesser sentence might have been
assessed.
The record reflects, and appellant concedes in his brief, that he failed to object to
the parole eligibility instruction at trial. Thus the error, if any, does not call for a
reversal of his conviction unless appellant was egregiously harmed by the instruction.
See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Any harm inflicted by the
erroneous charge must be “assayed 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; see Arrington v. State, 451 S.W.3d 834,
840 (Tex. Crim. App. 2015). We engage in this assessment to illuminate the actual, not
just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174; see Cosio v. State,
353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Egregious harm is a difficult standard to
meet and must be determined on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703,
710 (Tex. Crim. App. 2013).
As a whole, the trial court’s parole instructions informed the jury that appellant
may be released from a prison sentence early because of parole but not that he
necessarily would, and that one cannot predict how parole law might be applied to
appellant. Further, the jury was explicitly instructed that although it could consider, in
general, the existence of parole, it could not apply that to appellant specifically. See Igo
v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (parole instruction containing
standard curative language admonishing jury not to consider extent to which parole law
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might be applied to defendant was factor mitigating against finding of egregious harm).
We presume the jurors understood and followed the court’s instructions in the jury
charge absent evidence to the contrary. See Luquis v. State, 72 S.W.3d 355, 366 (Tex.
Crim. App. 2002); Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
There is no evidence in the record before us to rebut the presumption that the jury
followed the instruction not to consider how parole law might be applied to appellant.
Nothing in this record suggests that the jurors discussed, considered, or tried to apply—
contrary to the judge’s admonition—what they were told about parole. For example, the
jury did not send out any notes or questions during punishment deliberations expressing
confusion about the parole instruction, indicating the possible application of parole law
to appellant, or showing attempts to calculate appellant’s parole eligibility.
Parole was only mentioned once during argument on punishment by defense
counsel, as follows, “He may wind up getting parole. Who knows?” Further, the
evidence relating to punishment was exceptionally strong. Three pen packets were
admitted into evidence reflecting convictions for murder (the enhancement allegation),
robbery, and possession of cocaine.
We conclude that consideration of the entirety of the jury charge, the state of the
evidence, and the argument of counsel weighs against a finding of egregious harm.
Accordingly, we overrule appellant’s sole issue and affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Jamison, McCally, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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