Branden Massey v. State ( 2018 )

Opinion issued August 7, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00533-CR
———————————
BRANDEN MASSEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 421st District Court
Caldwell County, Texas1
Trial Court Case No. 2016-183
MEMORANDUM OPINION
A jury found appellant, Branden Massey, guilty of aggravated assault with a
deadly weapon and assessed his punishment at ten years’ confinement.2 In three
1
This case is before this Court on transfer from the Third Court of Appeals in
Austin pursuant to a docket-equalization order issued by the Supreme Court of
Texas. See TEX. GOV’T CODE ANN. 73.001 (West 2017).
issues on appeal, appellant contends that: (1) he suffered egregious harm from the
trial court’s failure to charge the jury that the corroboration requirement for
accomplice testimony applied to the jury’s consideration of his criminal liability
under the law of parties; and, (2) and (3) he suffered egregious harm because of
errors in the jury charge on punishment, which misinformed the jury of his parole
eligibility. We affirm.
Background
Appellant was indicted for shooting Shawn Ruckman, the complainant, three
times with a handgun in the parking lot of an H&R Block in Caldwell County,
Texas. At trial, Ruckman testified that he had a negative relationship with
appellant’s mother, Lana Cochran, due to a previous romantic interaction between
them. Ruckman claimed Cochran had sent men to beat him up several months
before the shooting occurred. In contrast, appellant testified that Cochran had told
him and others that Ruckman had attempted to rape her and run her over with a
truck. Other witnesses, including appellant’s girlfriend, Jessica Murphy, and
various family members, testified that Ruckman and Cochran had a difficult
relationship.
2
See TEX. PENAL CODE ANN. § 22.01(a)(2), 22.02(a)(2) (West 2011 & Supp. 2017).
2
On June 15, 2016, the day before the shooting, Cochran’s friend, Keith
Lopez,3 called to inform her that he had seen Ruckman rummaging through the
trash at the RV park where Lopez lived, and he asked if Cochran knew why
Ruckman was there. The call motivated Cochran, appellant, Murphy, and
appellant’s friend C.J.—a homeless man who had not been formally identified by
police at the time of trial—to drive to the RV park in the early morning hours of
June 16, 2016.
Prior to driving to the RV park, appellant drove to a nearby Wal-Mart where
Ruckman had stopped to get supplies for work his parents had asked him to do at
the H&R Block they owned. Ruckman testified that he went to buy a tool early in
the morning so he could work for a few hours before the heat of the day set in.
Surveillance footage from the Wal-Mart parking lot shows that appellant’s vehicle
arrived at Wal-Mart and drove around the parking lot during the time that
Ruckman was inside the store. The surveillance video shows appellant’s vehicle
pulling next to Ruckman’s truck. The passenger side door of appellant’s vehicle
opened, and a man fitting appellant’s description exited. The video shows that he
went under Ruckman’s truck for a moment, and he then got back into the car and
drove off at 2:30 a.m. Murphy testified that she, appellant, Cochran, and C.J.
3
Ruckman testified that Lopez was one of the men Cochran had sent to beat him up
prior to the shooting.
3
waited in the parking lot for a period of time, and she admitted that she watched
Ruckman’s truck through binoculars while they waited.
Appellant and the other three people with him—Cochran, Murphy, and
C.J.—eventually drove to Lopez’s home at the RV park, where they spent the next
few hours. Murphy testified that before they arrived Cochran had texted Lopez
asking him where she could find “a piece,” referring to a handgun. Lopez denied
seeing Cochran with a gun, and he denied helping her to procure one. However,
Lopez testified that appellant had a gun in his waistband when he arrived.
Meanwhile, Ruckman left the Wal-Mart and went straight to his truck. After
starting it, he stepped back out and checked on the truck, then drove off at
2:59 a.m. Around 4:15 a.m., Ruckman called Jeffery Nix, an old friend of his,
telling him that his truck had broken down in the H&R Block parking lot and he
needed help. Nix testified that Ruckman was nervous on the phone and believed
that someone had intentionally cut his serpentine belt. When Nix arrived,
Ruckman was holding the old belt in his hand, and it appeared to Nix that it had
been cut, not worn down. Ruckman likewise testified that he was concerned about
the damage to his truck due to Cochran’s having previously sent men to assault
him. Ruckman and Nix worked on the truck for around half an hour. The work
was slow going, as Nix had brought the wrong belt size. While they were working,
Murphy, Cochran, appellant, and C.J. drove up.
4
According to Murphy, she and C.J. were sitting in the back seat, Cochran
was driving, and appellant was in the front passenger’s seat. Cochran and
appellant had a brief conversation, then someone rolled down the front passenger
window. Murphy testified that appellant fired three shots at Ruckman. One shot
grazed Ruckman’s elbow, another went through his abdomen, and the third went
through his other elbow. He cried out, “[T]hey shot me,” alerting Nix. Nix
testified that he saw a “white male, [with a] thin moustache, [wearing a b]lue ball
cap” whom he had never met before. He also testified that the driver was female
and appeared to be in her twenties, and she “had her hair up.”
Appellant and the rest of the group fled the scene of the shooting. Murphy
testified that Cochran, who had been driving, switched places with C.J.—an
African-American male—so that the police would not be able to recognize a
female driver. Murphy testified that, as they were driving, appellant threw the
shell casings and clip from the window. When they returned home, Cochran and
C.J. left together, while appellant and Murphy stayed at their apartment.
After the shooting, Nix called 911. Officer D. Lewis with the Lockhart
Police Department was the first to respond to the scene. He took care of Ruckman
until EMS and other officers arrived, then he began to photograph the scene and
collect evidence. He found three bullet slugs: one caught in the ground, and two
on the ground near Nix’s truck. He found no shell casings, but then found the cut
5
serpentine belt on the ground near Ruckman’s truck. There were several
bloodstains on the ground under and around Ruckman’s truck.
Officer T. Larivee went to the surrounding businesses and obtained
surveillance footage, from which he was able to discern appellant’s vehicle’s
license plate. Police determined that the vehicle was actually registered to Barbara
Reynolds, appellant’s grandmother, and they contacted her.
Meanwhile, appellant and Murphy were arguing about the shooting, and at
some point that afternoon Barbara Reynolds called them. She was frantic, as the
police had been to her house and told her the rough details of what had happened.
Appellant refused to speak to her, so she spoke with Murphy. Afterwards, Murphy
was upset, and she ultimately called the police and told them what had happened.
On June 21, 2016, appellant was arrested. In a police interview conducted
the next day, he was cooperative. While he did not admit to shooting Ruckman, he
admitted to cutting the serpentine belt and to being present at the H&R Block
parking lot on the morning of the shooting. Cochran was also interviewed but
remained uncooperative.
Appellant asserted throughout trial that Murphy—who testified that
appellant fired the shots at Ruckman—and Lopez—who testified that appellant had
a gun when he arrived at the RV park on June 16, 2016—were accomplices to the
shooting. Thus, he argued that their testimony was not sufficient by itself to
6
convict him and had to be corroborated by other evidence. During the charge
conference, appellant argued that that Lopez and Murphy were accomplices as a
matter of law and asked that the jury be charged accordingly. The trial court denied
this request, considering them accomplices as a matter of fact instead. The guilt-
innocence charge thus contained a general instruction on accomplice-witness
testimony, identifying Murphy and Lopez as potential accomplices as a matter of
fact.
The jury found appellant guilty of aggravated assault. It also made an
affirmative finding that appellant used or displayed a deadly weapon in the course
of committing the assault.
During the punishment phase of the trial, appellant introduced the testimony
of several character witnesses from his family, including his father, aunt, and
uncle. He also introduced the testimony of Gary Howard, the Deputy Director for
the Caldwell County Adult Probation Office, who explained the specifics of
community supervision to the jury.
Appellant attempted to portray himself as a good man under the negative
influence of his beloved mother, who had fed him stories about Ruckman’s
assaulting her. Specifically, punishment witnesses testified that, prior to the
shooting, Cochran had been living with appellant and Murphy on and off. Several
members of appellant’s family testified during the punishment phase that Cochran
7
was a terrible influence on her son. Since her arrival, the apartment complex that
appellant lived in and worked at had fired him for “slacking off.”
The State contended that appellant’s actions were premeditated and violent.
It argued that appellant avoided committing murder only by the luck of the
circumstances.
Appellant sought community supervision, and the court provided the jury
this written and verbal charge concerning punishment assessment, including
instructions on the punishment range for appellant’s offense, law regarding
eligibility for community supervision, and law regarding good conduct time and
eligibility for parole.
The jury assessed appellant’s punishment at ten years’ confinement without
a fine. The jury did not recommend community supervision.
Standard of Review for Charge Error
In evaluating complaints of jury charge error, we conduct a two-step
analysis. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). We first
determine whether an error occurred. Id. If an error exists, we must decide
whether the error caused enough harm to warrant reversal. Id. at 744; Middleton v.
State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If the court finds error, the
standard of review applied in assessing the harm caused by the error depends on
whether the error in the charge was subject to timely objection in the trial court.
8
Ngo, 175 S.W.3d at 743–44; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). If there is a timely objection to the error at trial, the appellant must
only demonstrate “some harm” to warrant reversal. Ngo, 175 S.W.3d at 743;
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). When there is no
timely objection to the error at trial, reversal is granted only if the appellant
suffered “egregious harm” because of the erroneous charge. Ngo, 175 S.W.3d at
743–44; Almanza, 686 S.W.2d at 171.
An egregious harm determination is based on a finding of actual rather than
theoretical harm. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015)
(quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). However,
there does not need to be direct evidence of the actual harm in order to establish
egregious harm. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)
(citing Castillo-Fuentes v. State, 707 S.W.2d 559, 563 n.2 (Tex. Crim. App 1986)).
In determining whether an appellant suffered egregious harm, the court considers
“(A) the entire jury charge; (B) the state of the evidence[,] including contested
issues and the weight of probative evidence; (C) the parties’ arguments; and (D) all
other relevant information in the record.” Arrington, 451 S.W.3d at 840 (citing
Almanza, 686 S.W.2d at 171); Hutch, 922 S.W.2d at 171 (explaining that
egregious harm is examined on case-by-case basis and that reviewing court may
consider any relevant information from trial record). Errors cause egregious harm
9
if they affect the very basis of the case, deprive the defendant of a valuable right,
vitally affect a defensive theory, or make the case for conviction significantly more
persuasive. Hall v. State, 937 S.W.2d 580, 583 (Tex. App.—Texarkana 1996, pet.
ref’d) (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).
Guilt-Innocence Charge
In his first issue, appellant contends that he suffered egregious harm from
the trial court’s failure to charge the jury that the corroboration requirement for
accomplice testimony applied to the jury’s consideration of his criminal liability
under the law of parties.
A. Relevant Facts
The jury charge for the guilt-innocence phase set out “general principles of
law that must govern [the jury’s] decision [in] this case.” One of those general
principles was an instruction on accomplice testimony. The general instruction on
accomplice testimony informed the jury that it “cannot convict the defendant based
solely on the testimony of an accomplice unless you first believe that the
accomplice’s evidence is true and that it shows the defendant is guilty of the
offense charged against him.” It further stated, “Even then you cannot convict the
defendant unless the accomplice’s testimony is corroborated by other evidence
tending to connect the defendant with the offense charged. The corroboration is not
10
sufficient if it merely shows the commission of the offense, but it must tend to
connect the defendant with its commission.”
The general instruction on accomplice testimony applied this law
specifically to Murphy and Lopez:
[I]f you believe from the evidence beyond a reasonable doubt that an
offense was committed and you further believe from the evidence that
the witnesses Jessica Murphy and Keith Lopez were accomplices, or
you have a reasonable doubt as to whether they were or not, as that
term is defined in the foregoing instructions, then you cannot convict
the defendant upon the testimony of Jessica Murphy and Keith Lopez
unless you first believe that the testimony of Jessica Murphy and
Keith Lopez is true and that it shows the defendant is guilty as
charged in the indictment; even then you cannot convict the defendant
unless you further believe that there is other evidence in the case,
outside of the evidence of Jessica Murphy and Keith Lopez tending to
connect the defendant with the commission of the offense charged in
the indictment, and then from all the evidence you must believe
beyond a reasonable doubt that the defendant is guilty.
The following paragraph under the “general principles” section of the charge
was an instruction on “responsibility for conduct of another as a party,” instructing
the jury that “[a] person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense.” The charge generally set out the elements that the State was
required to prove to establish that “a person is guilty of an offense committed by
the conduct of another.” This paragraph did not contain any application of the law
to the particular facts of appellant’s case.
11
The charge then specifically instructed the jury that appellant had been
charged with “intentionally, knowingly, or recklessly caus[ing] bodily injury to
Shawn Ruckman” by using or exhibiting “a deadly weapon, specifically, a
firearm.” The charge set out the statutory elements for proving aggravated assault,
defined key terms such as “bodily injury,” and then provided the following
instruction on the “application of law to facts”:
You must determine whether the state has proved, beyond a
reasonable doubt, three elements. The elements are that—
1. the defendant, in Caldwell County, Texas on or about the 16th day
of June, 2016 caused bodily injury to Shawn Ruckman; and
2. the defendant did this—
a. intending to cause bodily injury; or
b. knowing that he would cause bodily injury; or
c. with recklessness about whether he would cause bodily injury;
and
3. the defendant, during the alleged assault, used or exhibited a
firearm, a deadly weapon.
You must all agree on elements 1, 2, and 3 listed above, but you
do not have to agree on the culpable mental states listed in elements
2.a, 2.b, and 2.c above.
If you all agree the state has failed to prove, beyond a
reasonable doubt, one or more of elements 1, 2, and 3 listed above,
you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt,
each of the three elements listed above, you must find the defendant
“guilty.”
The charge did not instruct the jury on the law of parties as it related to finding
appellant guilty of the charged offense.
12
B. Analysis
Appellant contends that “the trial court’s failure to charge the jury that the
law of accomplice testimony applied to the jury’s consideration of [his] criminal
liability under the law of parties” was erroneous and caused him egregious harm.
Appellant cites Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013), in
support of his argument.
Before a conviction can be based on an accomplice’s testimony, the
testimony must be corroborated by other evidence tending to connect the accused
to the crime. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2014); Zamora v.
State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013). A proper accomplice-witness
instruction explains the definition of accomplice, as well as explaining the need for
corroboration of evidence if the witness is an accomplice. Zamora 411 S.W.3d at
510.
In Zamora, the Court of Criminal Appeals held that the conspiracy theory of
party liability applies in the accomplice-witness context because “an accomplice is
a person who may be charged with the same or lesser-included offense as that with
which the defendant is charged” and “a person may be charged with an offense as a
principal, a direct party, or as a co-conspirator.” Id. at 511 (addressing question of
whether testimony from co-conspirator triggers requirement for accomplice-
witness instruction). The Court of Criminal Appeals also held in Zamora that all
13
complaints about the trial court’s failure to include an accomplice-witness
instruction must be analyzed under the procedural framework set out in Almanza.
Id. at 512–13. The reasoning in Zamora does not support appellant’s complaint
because the trial court here gave an accomplice-witness instruction, and appellant
does not complain of any inadequacy in the trial court’s general instructions on the
law of accomplice witnesses and corroboration.
Appellant cites no authority requiring that the jury charge expressly reiterate
the applicability of the accomplice witness instruction to the following paragraph
regarding the law of parties. See Vasquez v. State, 389 S.W.3d 361, 367 n.16 (Tex.
Crim. App. 2012) (“It is unnecessary to repeat every abstract definition in the
application paragraph of the jury charge.”); Roys v. State, 416 S.W.3d 229, 236
(Tex. App.—Amarillo 2013, pet. ref’d) (addressing similar issue and citing
Vasquez). The wording of the jury charge, as a whole, made it clear that the
instruction on accomplice-witness testimony was one of the “general principles of
law that must govern [the jury’s] decision [in] this case.” The accomplice-witness
instruction immediately preceded the instruction on the potential criminal liability
under the law of parties. We conclude that the jury would have understood that it
was to consider all of the instructions contained in the charge, and, absent evidence
to the contrary, we must presume that the jury understood and followed the
instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
14
(holding that appellate courts generally presume jury follows trial court’s
instruction in manner presented and that presumption is rebuttable, but appellant
must rebut presumption by pointing to evidence that jury failed to follow
instruction); Roys, 416 S.W.3d at 236.
We overrule appellant’s first issue.
Charge on Punishment
In his second and third issues, appellant contends that he suffered egregious
harm as a result of errors in the punishment jury charge, which misinformed the
jury on the law of parole eligibility.
A. Relevant Facts and Law
Following the jury’s finding that appellant was guilty of aggravated assault,
the trial court charged the jury regarding appellant’s punishment. The punishment
charge informed the jury that the punishment range for aggravated assault was
between two and twenty years’ confinement and a fine of no more than $10,000.
The jury also made an affirmative finding that appellant used or displayed a
deadly weapon in the course of committing the aggravated assault. The entry of a
deadly weapon finding affects appellant’s eligibility for parole. See Duran v. State,
492 S.W.3d 741, 745 (Tex. Crim. App. 2016).
Government Code section 508.145(d)(2) states that an inmate serving a
sentence for an offense which includes an affirmative deadly weapon finding “is
15
not eligible for release on parole until the inmate’s actual calendar time served,
without consideration of good conduct time, equals one-half of the sentence or 30
calendar years, whichever is less, but in no event is the inmate eligible for release
on parole in less than two calendar years.” TEX. GOV’T CODE ANN.
§ 508.145(d)(1)–(2) (West Supp. 2017). Under these circumstances, Code of
Criminal Procedure article 37.07, section 4(a) requires that the trial court instruct
the jury as follows:
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, the defendant 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 the defendant may earn. If the defendant is
sentenced to a term of less than four years, the defendant must serve at
least two years before the defendant 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 sentenced to a term
of imprisonment, because the application of these laws will depend on
decisions made by prison and parole authorities.
16
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.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(d) (West Supp. 2017).
Here, the charge instructed the jury on “parole and good conduct time” as set
out above, except that, in the paragraph regarding eligibility for parole, it stated,
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. Eligibility for parole does
not guarantee that parole will be granted.
The trial court’s charge thus failed to instruct the jury that appellant’s eligibility for
parole would be made “without consideration of any good conduct time the
defendant may earn,” and it failed to instruct the jury, “If the defendant is
sentenced to a term of less than four years, the defendant must serve at least two
years before the defendant is eligible for parole.” See id.
Finally, the charge instructed the jury on appellant’s eligibility to be granted
community supervision. The charge informed the jury that “‘Community
supervision’ is often called ‘probation’” and that “[t]he two terms mean the same
thing.” The jury was instructed that it could “recommend that the confinement
assessed by [the jury], any fine assessed by [the jury], or both, be suspended and
17
the defendant placed on community supervision.” The charge set out the
requirements for making such a recommendation.
Closing arguments by both the State and appellant focused on whether
probation was an appropriate punishment for appellant. The State argued that a
probated sentence was not appropriate because appellant’s acts were deliberate and
violent. Appellant, however, sought a probated sentence, arguing that he was a
good person with no serious prior legal problems who was led astray by the bad
influence of his mother. Neither party nor the trial court discussed the issue of
eligibility for parole.
The jury deliberated for less than twenty minutes. It did not send any notes
expressing confusion regarding the punishment charge. The jury assessed
appellant’s punishment at ten years’ confinement without a fine, and it did not
recommend community supervision.
B. Analysis
Appellant argues that the trial court’s instruction regarding when he would
be eligible for parole provided the jury with inaccurate information. He argues that,
contrary to the trial court’s instruction, “good conduct time does not play a factor
in [his] parole eligibility.” Appellant also argues that “[t]he jury was further
misadvised by not being told of the two year minimum [he] would be required to
serve for any sentence of two years to less than four years.” He argues, “Clearly,
18
the charge misapplied the law to the particular facts of this case and therefore
failed to lead the jury to the threshold of its duty.” Appellant also acknowledges
that he failed to object to the punishment charge and thus is required to show that
the errors cause egregious harm.
The State concedes that the punishment charge was erroneous with regard to
parole eligibility and good conduct time credit. However, it argues that appellant
failed to show egregious harm as a result of the error.
Appellant argues, in part, that this case “is one of those rare instances where
erroneous jury instructions alone caused egregious harm.” The cases cited by
appellant involved charge errors that mistakenly charged the jury on the State’s
burden of proof. See Ruiz v. State, 753 S.W.2d 681, 686–87 (Tex. Crim. App.
1988) (finding defendant suffered egregious harm from erroneous charge that
failed to properly instruct jury on State’s burden of proof and effectively lowered
State’s burden); Manning v. State, 730 S.W.2d 744, 750 (Tex. Crim. App. 1987)
(finding egregious harm when charge incorrectly instructed jury on State’s burden
of proof on defendant’s competency). The nature of the errors here—incorrectly
informing the jury that good conduct time would be considered in determining
appellant’s eligibility for parole and failing to state that he would be required to
serve a minimum of two years in the event he was sentenced to less than four
years’ confinement—do not rise to the same level of harm, in and of themselves, as
19
do charge errors that might affect the jury’s understanding of the State’s burden of
proof. Thus, we conclude that these cases are distinguishable, and appellant has not
established that the erroneous instruction alone caused egregious harm.
Rather, in determining whether the errors here caused appellant egregious
harm, we consider the entire jury charge; the state of the evidence, including
contested issues and the weight of probative evidence; the parties’ arguments; and
all other relevant information in the record. See Arrington, 451 S.W.3d at 840.
Considering the charge as a whole, the misstatements of law were relatively
isolated. Rather than instructing the jury that appellant would “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 the
defendant may earn,” the charge here instructed that “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.” And the charge failed to instruct the jury that,
“[i]f 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.” The remainder of the trial court’s
punishment charge on parole and good conduct time tracked the statutorily
required language.
Furthermore, the jury was also instructed, correctly, that “[e]ligibility for
parole does not guarantee that parole will be granted,” and that it “cannot
20
accurately be predicted how the parole law and good conduct time might be
applied to this defendant if sentenced to a term of imprisonment, because the
application of these laws will depend on decisions made by prison and parole
authorities.” The jury was permitted to consider the existence of parole law and
good conduct time, but it was instructed “not to consider the extent to which good
conduct time may be awarded to or forfeited by this particular defendant,” and it
was instructed “not to consider the manner in which the parole law may be applied
to this particular defendant.” Thus, the jury was instructed not to consider how
good conduct time might be applied to appellant, and there is no evidence in the
record to rebut the presumption that the jury followed this instruction. See Ross v.
State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004) (citing this factor in
determining that there was no reasonable likelihood that jury applied misleading
parole charge in way that prevented jury from properly considering defendant’s
punishment) (citing Luquis v. State, 72 S.W.3d 355, 664–68 (Tex. Crim. App.
2002)); see also Thrift, 176 S.W.3d at 224 (holding that, absent contrary evidence,
we presume trial court understood and applied trial court’s instructions in jury
charge).
Regarding other relevant information in the record, including the state of the
evidence and the parties’ arguments, we observe that neither the trial court nor the
State emphasized the improper instruction. Both the State and appellant devoted
21
their closing arguments to addressing appellant’s eligibility for community
supervision and did not address at all the effect that the potential for parole should
have in the jury’s punishment deliberations. See Luquis, 72 S.W.3d at 367
(“Neither the prosecutor nor defense attorney discussed good conduct time in
argument or urged the jury to assess a greater (or lesser) sentence based upon any
potential good conduct time credit.”). As in Ross, “[t]he jury did not send out any
notes indicating or expressing confusion about the possible application of good
conduct time to appellant.” See 133 S.W.3d at 624 (quoting Luquis, 72 S.W.3d at
367). And appellant received a sentence of ten years’ confinement, which is well
within the punishment range for aggravated assault and is “unsurprising”
considering the nature of appellant’s actions here, which the State argued were
violent, premeditated, and nearly resulted in a murder rather than an assault. See
Luquis, 72 S.W.3d at 367–68 (“Although appellant received the maximum
sentence possible, life in prison, that is unsurprising given appellant’s crime, his
cavalier confession, and his abysmal prior criminal record.”).
Examining the charge in its entirety and the other relevant record evidence,
we conclude that appellant has failed to demonstrate any harm that affected the
very basis of the case, that deprived him of a valuable right, that vitally affected a
defensive theory, or that made the State’s punishment case significantly more
persuasive. See Ross, 133 S.W.3d at 624; Hall, 937 S.W.2d at 583.
22
We overrule appellant’s second and third issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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