### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00546- CR

Art hur Zapata Orte ga, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 10- 1451 -K 26, TH E H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Arthur Z apata Orteg a of felony driving while intox icated and, in addition, found that he used or exhibi ted a deadly wea pon during the commission of the offe nse. See Tex. Penal C ode Ann. §§ 49.04(a) , 49.09(b)( 2) (West 2011); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (a) (2) (West Supp. 2012). The jury assessed appellant’ s punishment, enhanc ed pursuant to the habitu al offe nder punishment provision of the penal code, at confine ment for 99 y ear s in the I nstitut ional Division of the Texas Depa rtment of Criminal J ustice. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2012). I n a single point of err or on appea l, appell ant complains of jury -cha rg e err or in the punishment char g e. Finding no reve rsible err or, we aff irm the judgme nt of the trial cour

t.
I n his sole point of err or, appellant asser ts that the trial court fundame ntally err ed by
g iving the jury the wrong parole instruction in the punishment char g e. Be cause the jury returne d anaff

irmative deadly -we apon finding , the j ury should have been charg ed in acc ordanc e with section 4(a) of ar ticle 37.07 of the Te x as Code of Criminal Proce dure, w hich provides:

Under the l aw ap plicable in this case , if the defe ndant is sentenc ed to a term of imprisonment, he will n ot become elig ible for parole until the actua l time serve d equals one-ha lf of the sentenc e imposed or 3 0 y ear s, whicheve r is less, without consideration of any g ood conduct time he ma y ear n. I f the de fenda

nt is sentenced to a term of less than four y ear s, he must serve at least two y ear s befor e he is elig ible for pa role. Elig ibilit y

for pa role doe s not gua

rante e that par ole will be g rante d.

Tex. Code Crim. Proc. Ann. art. 37 .07, § 4(a) (West Supp. 2012). I nstead, the jury was char g ed as follows:

Under t h e l aw applicable in this case , if the defe ndant is sentenc ed to a term of imprisonment, he will not become elig ible for parole until the actua l time serve d plus any good conduct time earned equals one-ha lf of the sentenc e imposed or 30 y ear s, whicheve r i s less, without consideration of a ny g ood conduct tim e he may ear n. I f the defe ndant is sentenc ed to a term of less than four y ear s, he must serve at least two y ear s befor e he is eli gi b l e fo r parole

. Eligibility for parole does not g uara ntee that parole will be g rante d.
(Emphasis added.) This instruction—errone ously adding the i talicized lang uag e—is not found i n the code of cr iminal procedur e.

App e ll a n t a r g u e s th a t th is “ c o n f

u s in g ” in s tr

uction “wa s extremely detrimental” to him beca use the parole instruction as a whole “proba bly ” g ave the misleading impression to the jury that “g ood conduct cre dit would result in appellant becoming elig ible for parole in signific antly less time than actua lly permitted by l aw . ” The State conce des that the parole elig ibilit y instruction—indicating both that g ood conduct time would and would not be a fac tor in deter mining appellant’ s elig ibilit y

for pa role—wa s err oneous, but arg ues t hat appellant was not harme d by the

2parole instruction. We ag ree that the parole elig ibilit y instruction g iv en b y t h e trial court was

err oneous since it did not comply with article 37.07, § 4( a). The deg ree of harm require d for rever sal for jury -cha rge er ror depends on whether the err or was prese rved in the trial court. I f the appellant objected to the char g e err or at trial, reve rsal is require d if the er

ror “ is calcula ted to injure the rig hts of the defe ndant,” which has be en def ined
to mean that there is “some harm.” Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’ g )). I n contra st, if the appellant did not object at trial, the err or must be “funda mental,” and reve rsal is require d only if the err or was so eg reg ious and cre ated s u ch harm that the defe ndant “has not had a fair and impartial trial.” Id.

The rec ord ref

lects, and appellant conce des, that he failed to object to the err oneous parole elig ibilit y instruction at trial. Thus, the err or does not call for a reve rsal of t h e conviction

un less it was so eg reg iously harmful under the circ umstances as to have denied appellant a fair and i m p ar t i al trial. Delgado v. State , 235 S.W .3d 244, 249 (Tex. Crim. App. 2007); Almanza , 686 S.W .2d at 171. Any harm that is inflicted by the err oneous char g e must be “assa y ed in light of the entire jury char g e, the state of the evidenc e, including the contested issues and weig ht of the probative evidenc e, the arg ument of counsel, and any other rele vant information reve aled by t h e

rec ord of the trial as a whole.” Almanza , 6 8 6 S

. W

. 2 d at 1 7 1; see Ngo v. State , 175 S.W .3d 738,
750 n.48 (Tex. Crim. App. 2005). The deg ree of harm demonstrated by the appellant must be actua l, not merely

theore tical. Almanza , 686 S.W .2d at 174. “Jury -cha rg e er ror is eg reg iously

harmful if it aff ects the very basis of the case , deprive s the defe ndant of a valuable rig ht, or vi t ally aff ects a

3defe nsive theory .” Stuhler v. Stat e , 2 1 8 S .W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch

v. Stat e , 922 S.W .2d 166, 171 (Tex. Crim. App. 1996)). Eg reg ious harm is a difficult standard to
meet and must be deter

mined on a case-b y -c as e b as i s . See Ellison v. State , 86 S.W .3d 226, 227 (Tex. Crim. App. 2002); Hutch , 922 S.W .2d at 171.

Be g inning with the p u n ishment char g e itself, we observe that in addition to the

erroneous elig ibilit y instruction, the jury was g iven the requisite statutory instructions explainin g
g ood conduct time and pa role:

Under the law applicable to this case , the defe ndant, if sentenc ed to a term of i m p risonment, may ear

n time off the period of incar cer ation imposed throug h th e awa rd of g ood conduct time. Prison authorities may awa rd g ood conduct time to a prisoner who exhibi ts go o d behavior , diligenc e in car ry ing out prison work assig nments, and attempts at reha bilitation. I f a p ri soner eng ag es in misconduct, prison authorities may also take awa y all or part of any g ood conduct time ear ned by the prisoner

. I t is also possible that the leng th of time for which the defe ndant will be imprisoned might be r educe d by

the awa rd of pa role.

See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a)

. The jury was also g iven instructions that we view as mitiga ting or

cura tive in the para g raphs f ollowing the instruc tion with the errone ous lang uag e:

I t cannot accur ately b e p re d i cted how the parole law and g ood conduct tim e mi g ht be applied to this defe ndant if he is sentenc ed to a term of im p ri s onment, beca use the application of these laws will depend on decisions made by p ri son and parole authorities.
You may consider the exis tence of the parole law and g ood conduct time. Howeve r, y ou are not to consider the extent to which g ood conduct time may be awa rded to or forf eited by this pa

rticular defe ndant. You are not to consider the manner in which the par ole law may

be applied to this particula r def endant.

4See id. ; Ross v. State , 133 S.W .3d 618, 624 (Tex. Crim. App. 2004); see also Igo v. State ,

210 S.W .3d 645, 647 (Tex. Crim. App. 2006).

As a whole, the trial court’s parole instructions informed the jury that appellant may be rele ased from a prison sentenc e ear ly b ec au s e o f g ood conduct time or parole , but not that he

n ec es s arily would, and that one cannot predic t how parole law and g ood conduct time might b e applied to appellant. Fur ther, the jury was ex plicitly instructed that alt h o u gh it could consider, in
g ener al, the exis tence of parole and g ood conduct time, it could not apply that to appellant specific ally

. We presume that the jurors understood and followed the court’s instructions in the jury char g e absent evidenc e to the contra ry . See Taylor v. State , 332 S.W .3d 483, 492 (Tex. Crim. App. 2011); Hutch , 922 S.W .2d at 172. There is no evidenc e in the rec ord to rebut the presumption that the jury followed the instruction not to consider how g ood conduct time or the parole law might be applied to appellant. Nothing in this rec ord sug g ests that the jury discussed, considere d, or tried to apply —contra ry to the judge ’s admonition—what they wer e told about g ood conduct time and parole

. For example, the j ury did not send out any n o t es or questions expressing confusion about the parole instruction or indicating the possible a pplication of g ood conduct time or the parole law to appellant. Wit h respe ct to the evidenc e in this ca s e, the rec ord ref lects that while driving his Honda Accor d in Hutto, Texas, appellant made a wide right t urn ont o FM 685, crosse d the center lane of traff

ic, and came within less t h an a foot of hitting a sheriff deputy ’s patrol car . When the deputy i n i t i at ed a traff

ic stop and made contac t with appellant, he observe d multipl e signs of intox ication. Appellant then failed the standardized field sobriety tests administered by the deputy

.

5After being taken into custody , appellant consente d to g iving a blood sample. Subsequent lab testing

established tha t appellant’ s blood alcohol concentra tion was 0.25, more than three times the l eg al limit of intox ication. See Tex. Penal Code Ann. § 49.01(2)( B) (West 2011) (leg al threshold for i n t o x i cation is alcohol conce ntration of 0.08). The evidenc e also reve aled that appellant had s i x prior convictions for driving while intox ic a te d

. I n addition, the State prese nted punishment evidenc e demons t ra t i n g that appellant had seven prior felony convictions, the m ost rec ent of which carrie d 30-y ear sentenc es. Appe llant was on par ole when he committed the instant offense

. Concerning jury arg ument, the State briefly ref ere nced parole during its closing
arg ument. I n particula

r, when discussing the appropr iate sentenc e for appellant, the prosec utor indicated that “any

thing above 60, 60 y ear s to life or 99, he’s elig ible for patrol [si c] afte r 30 y ear s.”
He did not mention g ood conduct time in connec tion with par ole elig ibilit y . Def ense counsel also briefly alluded to parole elig ibilit y . I n urg ing the jury to consider the minimum sentenc e, he arg ued that if appellant, 48 y ear s old at the time of trial, was sentenc ed to 25 y ear s, he would “discha rg e that
sentenc e at 73 y ear s old.” Ag ain, no mention of g ood conduct time aff ecting parole elig ibilit y was made. I n short, while both the prosec utor and defe nse counsel ref ere nced parole elig ibilit y , neither ref ere nce sug g ested that g ood conduct time was a consideration in appellant’ s parole el i gi bility

. Thus, the arg uments prese nted the jur y wi t h t h e corr ect application of the parole law conce rning appellant—that g ood conduct time wa s not a consider ation in his parol elig ibilit y .

I n conclusion, althoug h appellant did rece ive the maximum sentenc e ava ilable, the fac tors discussed above milit ate ag ainst a finding of eg reg ious harm. First, the jury char g e contained

cura tive or m itigating instructions. The parole ins truction explained the pos sibili ty , not cer tainty ,

6that appellant’ s pri s on sentenc e may be reduc ed by g ood conduct time or parole elig ibilit y and,

further , clea

rly admonished the jury not to consider the extent to wh i ch t h e p ar ole law or g ood conduct time might be applied to appellant. Second, while parole elig ibilit y was briefly ref ere nced during jury arg ument, g ood conduct time as a fac tor of parole elig ibilit y was not mentioned by either party

. Fur

ther, there is no evidenc e in the rec ord that the jury attempted to apply the parole laws or
g ood conduct time when assessing appellant’ s sentenc e. Finally , the evidenc e rela ting t o b oth
g uilt-innocence and punishment was exceptionally strong

. The jury could have viewed appellant’ s

e xte n s iv e D WI h is to r

y —demonstrating a repe ated disreg ard for endang ering others with his c o n d u c t, the circ umstances of this DWI offe nse—includ i n g ap pellant’s high level of intox ication and the

near -collision with the deputy ’s car , and appellant’ s leng thy criminal history —rende ring hi m a “habitual of

fende r”—a s fac tors war

ranting the maxim um sentence

. After revie wing the rec ord and considering all the Almanza fac tors, we conclude appellant was not eg reg iously harme d by the err oneous parole instruction. We overr ule appellant’ s sole point of err or and a ffirm the judg ment of convic tion.

__________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: Nove mber 29, 2012 Do Not Publish

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