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 TEXAS, 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 for aggravated robbery. See TEX. PENAL CODE § 29.03. He 

was charged with robbing complainant, Gabriel Hernandez, of his vehicle, cell 

phone, and wallet at gunpoint. Hernandez reported his vehicle stolen and it was seen 

on a license-plate scanner in Tyler, Texas. Later, surveillance video of a purse-
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snatching incident in Tyler showed Allen grabbing a purse and fleeing in 

Hernandez’s vehicle. The purse was later found in Smith County, Texas. 

Hernandez’s Costco membership card was found in the stolen purse. Allen was also 

seen on surveillance video in Smith County in Hernandez’s vehicle and Allen’s 

brother was arrested while driving Hernandez’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 hotel where Allen was a 

suspect, they also located Hernandez’s wallet. 

 The jury convicted Allen of aggravated robbery. In the punishment phase, the 

jury charge presented the jury with information regarding community supervision if 

it wished to recommend it for Allen and what possible restrictions he would be 

required to abide by. After explaining other general evidentiary instructions and 

rules for the jury, the charge stated: 

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. 

The length of time for which a defendant 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 
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30 years, whichever is less. Eligibility 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 depend 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 parole 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’ imprisonment. Allen’s appeal followed. 

ANALYSIS 

 In his sole issue, Allen argues the trial court committed error in its instruction 

to the jury regarding good conduct time. 

The purpose of the trial court’s jury charge is to instruct the jurors on the law 

applicable to the case. See TEX. CODE CRIM. PROC. art. 36.14. The charge is the 

instrument with which the jury convicts; therefore, it must be an accurate statement 

of the law and set out the essential 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 charge 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). Appellate review of purported error in a jury charge 
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involves a two-step process. Id. First, we determine whether 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 error 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). Neither 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 assessed in light of the entire jury charge, the state of the 

evidence, including contested issues and the weight of the probative evidence, the 

parties’ arguments, and all other relevant 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 (or 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 “appellant d[oes] not object to the charge, the error does not 

result in reversal ‘unless it was so egregious and created such harm that appellant 

was denied a fair trial.’” Warner, 245 S.W.3d at 461 (quoting Almanza, 686 S.W.2d 
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at 171). “Errors that result in egregious harm are those that affect the ‘very basis of 

the case,’ ‘deprive the defendant of a valuable 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, the “appellant must have suffered actual, 

rather than theoretical, harm.” Id. at 461. 

 Allen alleges the trial court’s jury instruction was “required to include the 

parole law instruction . . . pursuant to article 37.07, section 4(b)” of the code of 

criminal procedure because he was “convicted of an offense listed under Article 

42A.054(a).” 

 However, Allen was found guilty of aggravated robbery, an offense which 

falls within article 42A.054(a). See TEX. CODE CRIM. PROC. 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 require the instruction found in article 37.07, 

section 4(a). Article 37.07, section 4(a) requires the trial court to instruct the jury 

with: 

The length of time for which a defendant 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 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. 
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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 depend 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 parole 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 concerning good-conduct time. 

Because Allen’s jury charge occurred after 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 regarding parole law using section 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 designated 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 those that affect “the very basis of the case,” 

“deprive the accused of a ‘valuable right,’” or “vitally affect [a] defensive theory.” 
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Id. To determine whether harm was egregious, we consider four factors on a caseby-case basis: (1) the jury charge as a whole, (2) the state of the evidence, including 

contested issues and the weight of probative 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 entire charge to the jury in the punishment phase of the 

trial. See id. at 840. The five-page jury charge started by explaining probation 

eligibility, the requirements if the jury recommends 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 wished to recommend probation. Following the 

probation instruction, there was the paragraph which discussed the award of good 

conduct time. Next was the language regarding parole 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 matters it was to consider. This factor weighs 

against a finding of egregious harm. 

Next, we consider the state of the evidence. Under this 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 
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2155061, at *9 (Tex. App.—Dallas June 15, 2022, no pet.) (mem. op., not designated 

for publication). Here, the evidence supported a prison sentence. The State put on 

witnesses that described the additional criminal events which occurred after Allen’s 

aggravated robbery of Hernandez. After robbing Hernandez, Allen 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 another women in the process of trying to steal 

her purse. The State also provided testimony Allen was on juvenile probation for 

aggravated robbery while all these events occurred. The defense put on testimony 

from Allen’s mother and his girlfriend, who asked for leniency. After hearing the 

evidence, the jury sentenced Allen to the lower 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 arguments 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 conduct 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 
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time by anyone at any time. Because no arguments exacerbated the error, this factor 

weighs against finding egregious harm. See Atkinson v. State, 107 S.W.3d 856, 860 

(Tex. App.—Dallas 2003, no pet.). 

Lastly, we consider any relevant information, 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 any 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.—Dallas June 15, 2021, no pet.) (mem. op., not designated 

for publication) (stating the Court found egregious harm by an erroneous good 

conduct instruction where the jury sent a note asking about the payment of fines 

“during his parole.”). However, the jury did not send a note or make any indication 

it focused on parole or good conduct credit implications in determining its sentence. 

See Dixon, 2023 WL 4042600, at *10. 

Weighing all of the factors, we conclude Allen did not demonstrate a 

reasonable likelihood the jury assessed 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 designated 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.—
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Dallas July 24, 2020, no pet.) (mem. op., not designated for publication) (same). 

Allen’s sole issue is overruled. 

CONCLUSION 

 Based on the record before us, Allen’s punishment jury charge did not 

egregiously harm him. We overrule his sole issue and affirm the trial court’s 

judgment. 

 

Do Not Publish 

TEX. R. APP. P. 47.2(b). 

220824F.U05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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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 date, the judgment of the trial court is 

AFFIRMED. 

Judgment entered this 31st day of August 2023.