Affirmed and Opinion Filed August 31, 2023 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00824-CR DELONZE ALLEN, Appellant V. THE STATE OF TE XAS, Appellee On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F21-34145-N MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Partida-Kipness In one issue, appellant Delonze Allen argues the trial court committed reversible error when it failed to properly instruct the jury regarding good conduct time during the punishment phase of his trial. We affirm.
BACKGROUND Allen was indicted fo r aggravated robbery. See T EX

. P ENAL C ODE § 29.03. He was charged with robbing complainant, Ga briel Hernandez, of his vehicle, cell phone, and wallet at gunpoint. He rnandez reported his vehicle stolen and it was seen on a license-plate scanner in Tyler, Texas. Later, su rveillance video of a purse-–2– snatching incident in Tyler showed Allen grabbing a purse and fleeing in Hernandez’s vehicle. The purse was la ter found in Smith County, Texas. Hernandez’s Costco membership card was f ound in the stolen purse. Allen was also seen on surveillance video in Smith Count y in Hernandez’s vehicle and Allen’s brother was arrested while driving Hernand ez’s vehicle near the Houston area. Later, Allen was involved in multiple other robberies after he stole Hernandez’s vehicle. As police were investigating robberies near an Irving hote l where Allen was a suspect, they also locate d Hernandez’s wallet. The jury convicted Allen of aggravat ed robbery. In the punishment phase, the jury charge presented the jury with info rmation regarding community supervision if it wished to recommend it for Allen and wh at possible restrictions he would be required to abide by. After explaining ot her general evidentiary instructions and rules for the jury, the charge stated: Under the law applicable in this ca se, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of goo d 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 pr isoner engages in misconduct, prison authorities may also take away a ll or part of any good conduct time earned by the prisoner. The length of time for which a defenda nt is imprisoned may 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–3– 30 years, whichever is less. Eligib ility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law might be applied to this defendant if sentenced to a term of imprisonment, because the application of that law will depe nd on the decisions made by parole authorities. You may consider the existence of the parole law. You are not to consider the manner in which the pa role law may be applied to this particular defendant. Allen did not object to the jury charge. After final argument and deliberation, the jury assessed eleven years’ impris onment. Allen’s appeal followed.
ANALYSIS In his sole issue, Allen argues the tria l court committed error in its instruction to the jury regardi ng good conduct time. The purpose of the trial court’s jury char ge is to instruct the jurors on the law applicable to the case. See T EX

. C ODE C RIM

. P ROC . art. 36.14. The charge is the instrument with which the jury convicts; th erefore, it must be an accurate statement of the law and set out the essen tial elements of the offense. Fields v. State , –– S.W.3d––, ––, No. 01-20-00280-CR, 2022 WL 3268525, at *3 (Tex. App.— Houston [1st Dist.] Aug. 11, 2022, pet. ref’d). A jury ch arge that improperly states the law or the elements of an offense is erroneous. Id

. All alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Appe llate review of purported error in a jury charge–4– involves a two-step process. Id . First, we determine whethe r the jury instructions are

erroneous. Id . Second, if error occurred, then an appellate court must analyze the error for harm. Id . The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether error was preserved or not. Id

. The failure to preserve a jury-charge erro r is not a bar to appellate review but rather establishes the degree of harm necessary for reversal. Warner v. State , 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). Ne ither the State nor the appellant bears the burden on appeal to prove harm. Reeves v. State , 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Harm is asse ssed in light of the entire ju ry charge, the state of the evidence, including contested issues and th e weight of the probative evidence, the parties’ arguments, and all other re levant information in the record. Alcoser v. State , 663 S.W.3d 160, 165 (Tex . Crim. App. 2022); Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). If the “defendant never presents a proposed jury instruction (o r fails to object to the lack of one), any potential error in the charge is reviewed only for ‘egregious harm’ under Almanza .” Oursbourn v. State , 259 S.W.3d 159, 174 (Tex. Crim. App. 2008) (citing Almanza v. State , 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g)). When an “appella nt d[oes] not object to th e charge, the error does not result in reversal ‘unless it was so egregi ous and created such harm that appellant was denied a fair trial.’” Warner , 245 S.W.3d at 461 (quoting Almanza , 686 S.W.2d–5– at 171). “Errors that result in egregious harm are those that affect the ‘very basis of the case,’ ‘deprive the defendant of a valu able right,’ or ‘vitally affect a defensive theory.’” Id . at 461–62 (quoting Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). To establish egregious harm, th e “appellant must ha ve suffered actual, rather than theoretical, harm.” Id . at 461. Allen alleges the trial c ourt’s jury instruction was “required to include the parole law instruction . . . pursuant to ar ticle 37.07, section 4(b)” of the code of criminal procedure because he was “convict ed of an offense listed under Article 42A.054(a).” However, Allen was found guilty of a ggravated robbery, an offense which falls within article 42A.054(a). See T EX

. C ODE C RIM

. P ROC . art. 37.07, § 4(b). Offenses contained in article 42A.052(a) are excluded from the jury instruction found in article 37.07, section 4(b) and re quire the instruction found in article 37.07, section 4(a). Article 37.07, section 4(a) re quires the trial court to instruct the jury with: The length of time for which a defenda nt is imprisoned may 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. If the de fendant is sentenced to a term of less than four years, the defendant mu st serve at least two years before the defendant is eligible for parole . Eligibility for parole does not guarantee that parole will be granted.–6– It cannot accurately be predicted how the parole law might be applied to this defendant if sentenced to a term of imprisonment, because the application of that law will de pend on decisions made by parole authorities. You may consider the existence of the parole law. You are not to consider the manner in which the pa role law may be applied to this particular defendant. Here, the trial court provided the jury with a punishment charge which contained outdated parole instruction with language concer ning good-conduct time. Because Allen’s jury charge occurred af ter the 2019 amendment to article 37.07 of the code which removed mention of good conduct time credit, we hold there was error instructing the jury re garding parole law using s ection 4(a)’s pre-amendment language. Dixon v. State , No. 05-21-00847-CR, 2023 WL 4042600, at *7 (Tex. App.—Dallas June 16, 2023, no pet. h.) (mem. op., not de signated for publication);

see Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2. 08, 2015 Tex. Gen. Laws 2321, 2366–68 (amended 2019 ) (current version at Tex. Code Crim. Proc. art. 37.07, § 4(a)). However, Allen did not object to the inclusion of the language so we must determine if there was egregious harm. See Price v. State , 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). “An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Errors that result in egregious harm are thos e that affect “the very basis of the case,” “deprive the accused of a ‘valuable right,’” or “vitally affect [a] defensive theory.”–7– Id. To determine whether harm was egregious, we consider four factors on a caseby-case basis: (1) the jury ch arge as a whole, (2) the st ate of the evid ence, including contested issues and the weight of proba tive evidence, (3) the parties’ arguments, and (4) all other relevant information in the record. Arrington v. State , 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). We first consider the entir e charge to the jury in the punishment phase of the trial. See id . at 840. The five-page jury char ge started by explaining probation eligibility, the requirements if the jury r ecommends probation, and the possible fees probation could require. It goes on to state Allen filed an application for probation and what options the jury had if it wish ed to recommend probation. Following the probation instruction, there was the para graph which discussed the award of good conduct time. Next was th e language regarding paro le and the eligibility requirements. The final page contained general evidentiary instructions for the jury to follow during its deliberation. Other than one erroneous paragraph, the jury charge properly instructed the jury on the matter s it was to consider. This factor weighs against a finding of egregious harm. Next, we consider the stat e of the evidence. Under th is factor, we determine whether the evidence made it more or less likely the charge error caused the appellant actual harm. Dixon , 2023 WL 4042600, at *8. We must determine the “likelihood that the jury would in fact have reached a non-unanimous verdict on the facts of this particular case.” Lehman v. State , No. 05-19-01367-CR, 2022 WL–8– 2155061, at *9 (Tex. App.—Da llas June 15, 2022, no pet. ) (mem. op., not designated for publication). Here, the evidence suppor ted a prison sentence. The State put on witnesses that described the additional crim inal events which occurred after Allen’s aggravated robbery of Hernandez. After robbing Hernandez, A llen was involved in a purse theft in Tyler. He was arrested days later for burglary of a vehicle and unlawfully carrying a weapon. A month later, Allen assaulted a woman while trying to steal her vehicle and then assaulted anot her women in the process of trying to steal her purse. The State also provided testim ony Allen was on juvenile probation for aggravated robbery while all these even ts occurred. The defense put on testimony from Allen’s mother and his girlfriend, w ho asked for leniency. After hearing the evidence, the jury sentenced Allen to the lo wer end of the punishment range at eleven years. No evidence of good conduct time was offered during the guilt-innocence or punishment phase of trial. We conclude the state of the evidence made it less likely the jury charge caused the appellant actual harm. This factor weighs against the finding of egregious harm. Third, we consider whether any argum ents made by the State or appellant exacerbated or ameliorated error in the charge. Dixon , 2023 WL 4042600, at *9. Neither party discussed good conduct time in argument or urged the jury to assess a greater or lesser sentence based on any potential good cond uct time credit. See Luquis v. State , 72 S.W.3d 355, 367 (Tex. Crim. App. 2002). Indeed, other than the erroneous language in the charge, there was no mention of parole or good conduct–9– time by anyone at any time. Because no arguments exacer bated the error, this factor weighs against finding egregious harm. See Atkinson v. State , 107 S.W.3d 856, 860 (Tex. App.—Dalla s 2003, no pet.). Lastly, we consider any relevant inform ation, such as whether the jury sent requests for clarification during deliberations. Dixon , 2023 WL 4042600, at *9. There was no indication a jury note or an y question arose regarding parole or good conduct credit. In cases where jury notes are sent regarding parole instructions, there can be harm found. See Shamburger v. State , No. 05-20-00108-CR, 2021 WL 2430903, at *7 (Tex. App.—Da llas June 15, 2021, no pet. ) (mem. op., not designated for publication) (stating the Court fou nd egregious harm by an erroneous good conduct instruction where the jury sent a note asking about the payment of fines “during his parole.”). Howeve r, the jury did not send a note or make any indication it focused on parole or good conduct credit im plications in determining its sentence.
See Dixon , 2023 WL 4042600, at *10. Weighing all of the factors, we c onclude Allen did not demonstrate a reasonable likelihood the jury assesse d its sentence based on the erroneous instruction and the record does not support a finding of egregious harm. See id ., Taylor v. State , No. 05-20-00017-CR, 2022 WL 17335689, at *13–14 (Tex. App.— Dallas Nov. 30, 2022, pet. ref’d) (mem. op., not de signated for publication) (concluding erroneous good conduct instruction did not cause egregious harm); Addison v. State , No. 05-18-01263-CR, 2020 WL 4251068, at *4 (Tex. App.—–10– Dallas July 24, 2020, no pe t.) (mem. op., not designate d for publication) (same). Allen’s sole issue is overruled.
CONCLUSION Based on the record before us, Alle n’s punishment jury charge did not egregiously harm him. We overrule his sole issue and affirm the trial court’s judgment.

Do Not Publish T EX

. R. A PP

. P. 47.2(b). 220824F.U05 /Robbie Partida-Kipness / ROBBIE PARTIDA-KIPNESS JUSTICE–11– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT DELONZE ALLEN, Appellant

No. 05-22-00824-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 195th Judicial District Court, Dallas County, Texas Trial Court Cause No. F21-34145-N.Opinion delivered by Justice PartidaKipness. Justices Reichek and Miskel participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered this 31st day of August 2023.