Allen Grant v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-558-CR





ALLEN GRANT,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0915092, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of murder and assessed punishment at imprisonment for seventy-five years. Tex. Penal Code Ann. § 19.02 (West 1989). We will affirm.

Appellant brings forward three points of error, each complaining of the district court's failure to give the statutory instruction on the law concerning good time credit and parole eligibility. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 1993). The record reflects that after the proposed punishment charge was prepared, the court asked defense counsel if he wanted the section 4(a) instruction included, saying, "I am going to give you whatever you want." Counsel replied, "Judge, we have no objection to the charge as written. We don't want an additional charge." The charge given does include an instruction "not to consider or discuss the possible actions of the Board of Pardons and Paroles or how long this defendant will be required to serve the punishment which you assess."

The section 4(a) instruction was omitted at appellant's request. A defendant may not invite error and then complain thereof on appeal. Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim. App. 1988); Cadd v. State, 587 S.W.2d 736, 741 (Tex. Crim. App. 1979); Ex parte Hargett, 827 S.W.2d 606 (Tex. App.--Austin 1992, pet. ref'd). In our opinion, the section 4(a) instruction is not an absolute, systemic requirement that cannot be waived by the defendant. See Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993). The points of error are overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: November 3, 1993

Do Not Publish