1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00082-CR

__________________

TIMOTHY LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court

Jefferson County, Texas

Trial Cause No. 19-33025

__________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Timothy Lewis for aggravated robbery by 

using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code Ann. 

§ 29.03(a)(2). Lewis pleaded “not guilty” to the crime charged, but a jury found 

Lewis guilty as charged. Lewis pleaded “true” to four enhancements, and the jury 

assessed punishment at fifty years’ confinement. Lewis appeals his conviction, 

raising nine issues. We affirm.
2

Evidence at Trial

Testimony of Anton1

Anton testified that on July 22, 2019, he lived in a townhouse with his 

girlfriend Donna and her two children, but her children were not present that night. 

According to Anton, the number of the unit he lived in was 1205. Anton recalled 

that during the day of July 22, he talked with Jordan Spiller two or three times about 

some marijuana and edible candies that Anton was selling, and that Jordan was “on 

the phone and texting...as he was taking pictures of the marijuana and the edible 

candies.” According to Anton, Jordan also knew Donna. Anton also recalled that he 

had seen a little gray Mazda circling around near his home three or four times that 

day. 

Anton testified that he got home at about 9:00 or 10:00 that night, and he 

noticed the Mazda outside his home. According to Anton, when he got out of his 

truck, he grabbed a Crown Royal bag that contained about $500 or $1000 from sales 

he had made that day. Anton testified that as he approached the front door, he heard 

noise, some people ran towards him and told him to “give it up[,]” he dropped the 

bag, and the people dug in his pocket and took off his jewelry. Anton also testified 

that there were four people, they wore black ski masks, they all held guns to him, 

1 We use pseudonyms to refer to the alleged victims. See Tex. Const. art. I, 

§ 30 (granting crime victims “the right to be treated with fairness and with respect 

for the victim’s dignity and privacy throughout the criminal justice process[]”).
3

they opened the door, and then they held him on the living room floor. According to 

Anton, the people were digging through his things and looking for his girlfriend. 

Anton testified that two people went upstairs and two stayed downstairs, one person 

wanted to shoot him, and they wanted to take his truck. Anton recalled that at some 

point, one of the people opened the front door and quickly shut it, which led Anton 

to believe that the police were outside. Anton testified that three of the people ran 

out the back door, but the fourth person was still upstairs. According to Anton, the 

fourth person came downstairs asking where his partners were, Anton told him they 

left, and when the man opened the front door, the police entered, the man dropped 

the guns, and the police took the man’s mask off. 

Anton testified that after the police arrived, he saw that his money was gone, 

but everything else was “intact[]” except that things had been strewn about, and 

Donna’s computer was left on the lawn. Anton further testified that his girlfriend 

had been hiding in the bathtub “on the phone with the dispatcher[]” the whole time. 

Anton was not able to identify any of the four people because they wore masks. 

Anton testified that he did not know Timothy Lewis, but he recognized his face 

because he had seen him riding around in the Mazda that day. Photographs of the 

inside and outside of Anton’s home that night were admitted into evidence.
4

Testimony of Donna

Donna testified that in July 2019, she and her two children lived with Anton. 

She also testified that she knew Jordan through her family, and she had seen him 

around, but he had not been to her home and there was no reason he would know 

where she was living. Donna testified that she left her children with their 

grandmother on July 22, she got home around 7:30 or 8:00, and Anton got home 

around “9 something.” According to Donna, she heard Anton’s truck when he drove 

up, she heard the truck door close, and before Anton got to the front door, she heard 

Anton say “Hey, man, take everything. You got it. Go ahead. You can take 

everything[.]” Donna testified that she ran to the bathroom, hid in the tub, and called 

911 for help. Donna recalled that she could hear people enter and run through the 

house, one of the people made Anton get on the ground. At one point, Donna heard 

the front door open, and she heard the police say “get on the ground.” Donna also 

heard what sounded like two people run out the back door. Donna testified that once 

the police had arrived, she left the bathroom and told them that Anton was her 

boyfriend and he was “supposed to be here[.]” Donna also testified that the home 

had been ransacked, and it appeared the people had taken her laptop and left it in the 

bushes. Donna agreed that the people had not been invited to her home, and there 

was no reason for them to be at her home that night except for the robbery. Donna 

testified that she did not see any of the people except for the one person the police 
5

caught at the front door, but she remembered hearing “about four[]” voices that 

night. 

Testimony of Sergeant Shannon Meaux

Sergeant Shannon Meaux, a patrol sergeant with the Port Arthur Police 

Department, testified that on the evening of July 22, 2019, he was dispatched to a 

burglary in progress that “ended up ultimately being an aggravated robbery, home 

invasion robbery.” Meaux recalled that as he approached the townhouse, he noticed 

a screen off a window at one of the townhomes and someone wearing dark clothing 

exit unit 1205, and the person started running away when he saw Meaux. Meaux 

testified that he chased after the man, but he did not catch him, and after other 

officers caught the man, he was detained and placed in hand restraints. According to 

Meaux, he went back to the townhome to check on the residents, and before he could 

knock on the door, the door opened, and a man said “Awe, sh*t.” Meaux testified 

that he told the man to lie on the ground and comply, and Meaux saw two pistols on 

the ground. Meaux agreed that one of the weapons turned out to have been stolen. 

According to Meaux, the suspect on the ground was talking with Anton, and Meaux 

thought the suspect “had known where the victim was and what he was doing during 

the day prior to this.” Meaux agreed the home was in “disarray[.]” 
6

Meaux agreed he was wearing a body camera that night, and he agreed that 

the video in State’s Exhibit 42 was a fair and accurate depiction of what happened 

that night. The video from Meaux’s body cam was published to the jury.

Testimony of Officer Terry Tran

Officer Terry Tran, a patrol officer with the Port Arthur Police Department, 

testified that on the night of July 22, 2019, he heard a call on the radio reporting a 

home invasion burglary, and he went to the location to assist other officers. Tran 

testified that another officer had told him a suspect was fleeing at high speed in a 

gray Mazda. Tran intercepted that vehicle, stopped it, and told the suspect to keep 

his hands up. Tran testified that when he looked inside the Mazda, he saw a silver 

revolver on the floorboard. According to Tran, the suspect in the Mazda’s last name

was Spiller.

Testimony of Detective George Clark

Detective George Clark testified that on July 22, 2019, he was a patrol officer

on the evening shift with the Port Arthur Police Department, and he responded to a 

call at a townhome. Clark recalled that as he approached the home in question, he 

was told that someone was running west through the area, and he saw the man run 

straight toward him. Clark testified that he and another officer told the man to stop, 

the man turned and ran the other way, and Clark pursued him. According to Clark, 

he did not catch the man, but he caught up with a car that was speeding out of the 
7

complex, and he chased after the car and notified dispatch. Clark testified that 

Officer Tran stopped the vehicle and Clark assisted Tran in taking the suspect into 

custody. Clark recalled seeing a handgun on the floor of the car. According to Clark, 

the driver of the car was identified as Jordan Spiller. Clark agreed he was wearing a 

body camera that night, and the video from the body camera was admitted into 

evidence and published to the jury. 

Testimony of Malaurie Cruz

Malaurie Cruz, a forensic specialist with the Port Arthur Police Department, 

testified that she was called to a scene of an aggravated robbery on July 22, 2019, to 

take photographs and collect evidence. Cruz testified that State’s Exhibits 17, 19, 

43, and 44 were photographs of ski masks found at the scene, and she identified 

Exhibits 18 and 23 as black ski masks found at the scene. Cruz also testified that she 

found gloves at the scene that the residents said did not belong to them. Cruz agreed 

that she also collected ammunition and firearms from the scene. On crossexamination, Cruz agreed that she dusted for fingerprints at the home, and she did 

not find any of Lewis’s prints inside the home. 

Testimony of Officer Isaiah Seltzer

Officer Isaiah Seltzer, a patrol officer with the Port Arthur Police Department, 

testified that on July 22, 2019, he was called out to a home invasion. As he entered 

the townhome complex, he encountered another officer chasing a man running west, 
8

and Seltzer also started running after the man. Seltzer testified that when he caught 

up with the man, the man did not put up a struggle, and Seltzer took him into custody. 

According to Seltzer, the man was saying “Yeah, it’s 1205. It’s 1205[,]” and he said 

people were still in the residence and someone was hiding in a vehicle. Seltzer 

testified that the man identified himself as Timothy Lewis, and Seltzer identified the 

defendant as Lewis. Seltzer agreed he was wearing a body camera that night, he 

identified Exhibit 46 as his body cam video, and the video was published to the jury. 

On cross-examination, Seltzer agreed he did not see Lewis in Townhouse unit 1205. 

After the State rested, the defense did not offer any witnesses or evidence. 

Issues

Appellant’s first three issues challenge the sufficiency of the evidence to 

support his conviction. In his first issue, Appellant argues that the evidence is not 

sufficient because he did not actively participate in any activity at Anton’s home and 

he remained outside. In his second and third issues, Appellant argues that the 

evidence is legally and factually insufficient that he used or knew that firearms 

would be used at Anton’s home.2 Appellant’s next four issues (four through seven) 

argue that the trial court erred by not including a specific instruction in the jury 

2 Issue two challenges the legal sufficiency that Lewis used or knew that 

firearms would be used at Anton’s home, and issue three challenges the factual 

sufficiency thereof. When an appellant challenges the sufficiency of the evidence in 

a criminal case, we review the evidence under the standard for legal sufficiency only.

See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
9

charge on whether a deadly weapon was used. Appellant’s last two issues argue that 

the trial court committed reversible error in the jury charge during the punishment 

phase because it misstated the law. Specifically, Appellant argues that the jury 

charge included an instruction on “good conduct time” in violation of article 37.07, 

section 4(a) of the Texas Code of Criminal Procedure.

Sufficiency of the Evidence

In three issues, Appellant argues that the evidence was not sufficient to sustain 

his conviction. According to Appellant, there was no evidence that he was ever 

inside Anton’s home, no evidence that he “actively participated” in the robbery, and 

no evidence that he used a firearm or deadly weapon. Appellant also argues that the 

evidence is insufficient because, although he rode to Anton’s townhome with Spiller 

and another man, Lewis stayed inside the car while Spiller and the other man got out 

of the car and entered Anton’s townhome. Appellant acknowledges this last 

argument relies on evidence outside the record. We may not consider matters outside 

the appellate record. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App.

2004) (“An appellate court may not consider factual assertions that are outside the 

record[.]”).

In reviewing the legal sufficiency of the evidence, we review all the evidence 

in the light most favorable to the verdict to determine whether any rational factfinder 

could have found the essential elements of the offense beyond a reasonable doubt. 
10

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 

(Tex. Crim. App. 2007). We give deference to the factfinder’s responsibility to fairly 

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable 

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record 

contains conflicting inferences, we must presume that the factfinder resolved such 

facts in favor of the verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 

893, 899 n.13 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. 

Crim. App. 2007). While a jury is permitted to draw reasonable inferences from the 

evidence, it is not permitted to draw conclusions based on speculation or factually 

unsupported inferences or presumptions. See Hooper, 214 S.W.3d at 15. The jury as 

factfinder is the sole judge of the weight of the evidence and credibility of the 

witnesses, and it may believe all, some, or none of the testimony presented by the 

parties. See Metcalf v. State, 597 S.W.3d 847, 865 (Tex. Crim. App. 2020) (citing 

Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Heiselbetz v. State, 

906 S.W.2d 500, 504 (Tex. Crim. App. 1995)). The appellate court does not reweigh 

the evidence or determine the credibility of the evidence, nor does it substitute its 

own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. 

Crim. App. 2007).

We “‘determine whether the necessary inferences are reasonable based upon 

the combined and cumulative force of all the evidence when viewed in the light most 
11

favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d 

at 16-17). “Direct and circumstantial evidence are treated equally: ‘Circumstantial 

evidence is as probative as direct evidence in establishing the guilt of an actor, and 

circumstantial evidence alone can be sufficient to establish guilt.’” Id. (quoting 

Hooper, 214 S.W.3d at 13). Each fact need not point directly and independently to 

the guilt of the defendant, as long as the cumulative force of all the incriminating 

circumstances is sufficient to support the conviction. Temple v. State, 390 S.W.3d 

341, 359 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13; Johnson v. State, 871 

S.W.2d 183, 186 (Tex. Crim. App. 1993).

A person commits robbery if, in the course of committing theft, he 

intentionally, knowingly, or recklessly causes bodily injury to another or 

intentionally or knowingly threatens or places another in fear of imminent bodily 

injury or death. See Tex. Penal Code Ann. § 29.02(a). A person commits aggravated 

robbery if he commits robbery and causes serious bodily injury, uses or exhibits a 

deadly weapon, or causes serious bodily injury or threatens or places the victim in 

fear of imminent bodily injury or death if the victim is sixty-five years of age or 

older or disabled. Id. § 29.03(a).

The jury charge in this case included an instruction on the law of parties. 

Under the law of parties, “[a] person is criminally responsible as a party to an offense 

if the offense is committed by his own conduct, by the conduct of another for which 
12

he is criminally responsible, or by both.” Id. § 7.01(a). Culpability under the law of 

parties does not distinguish between principals or accomplices. See id. § 7.01(c).

“‘Evidence is sufficient to convict under the law of parties where the defendant is 

physically present at the commission of the offense and encourages its commission 

by words or other agreement.’” Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim. 

App. 2005) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)).

Party participation may be shown by events occurring before, during, and after the 

commission of the offense, and may be demonstrated by actions showing an 

understanding and common design to do the prohibited act. Id. at 739-40.

In this case, Anton testified that four people approached him with guns 

pointed at him in front of his home on the night of July 22, 2019. Anton testified that 

they used his key to open the front door, and they laid him on the ground while they 

went throughout the house. According to Anton, all four persons pointed their guns 

at him, and at least one of them wanted to shoot him. Donna testified that she hid in 

the bathtub while the intruders were in the house, and she called 911 to report the 

incident. Anton testified that one of the people opened the front door and shut it 

quickly, after which the police entered the house and the other intruders left through 

the back door. Donna also testified that two people left the house out the back door. 

Anton reported that several hundred dollars were stolen. Police chased several men 

they found running from Anton’s home. One of the men police encountered told the 
13

police he was Timothy Lewis. A handgun was found in a gray Mazda at the scene. 

Anton testified that he had seen a gray Mazda earlier that day circling in the area, 

and he recognized the defendant as the person he had seen in the Mazda. The police 

found three ski masks and firearms at the scene. Videos from the body cameras of 

Officers Meaux, Clark, and Seltzer were published to the jury.

On this record, we conclude the evidence of Appellant’s guilt was legally 

sufficient. The jury could have made reasonable inferences from the evidence and 

concluded that the evidence showed beyond a reasonable doubt that Lewis used a 

firearm and, while committing theft, put Anton or Donna in fear of imminent injury 

or death. The jury could have also inferred guilt from evidence that Appellant fled 

from the residence and from police that night, along with Anton’s testimony that he 

had seen a gray Mazda earlier that day circling in the area, and that he recognized 

the defendant as the person he had seen in the Mazda. See Devoe v. State, 354 S.W.3d 

457, 470 (Tex. Crim. App. 2011); Alba v. State, 905 S.W.2d 581, 586 (Tex. Crim. 

App. 1995) (citing Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989)); 

Hill v. State, 161 S.W.3d 771, 776 (Tex. App.—Beaumont 2005, no pet.). After 

reviewing all the evidence and viewing the evidence in the light most favorable to 

the verdict, we conclude that a rational factfinder could have found the essential 

elements beyond a reasonable doubt necessary to conclude that Appellant was 

criminally responsible either as a principal or under the law of parties for the offense 
14

of aggravated robbery as charged in the indictment. See Jackson, 443 U.S. at 319; 

Hooper, 214 S.W.3d at 13; Salinas, 163 S.W.3d at 739-40. We reject Appellant’s 

sufficiency challenge, and we overrule his first three issues.

Deadly-Weapon Finding

In four issues (four through seven), Appellant argues that the trial court 

committed reversible error by not requesting a separate jury finding on the deadlyweapon issue, and that such alleged error violated his due process rights to a fair trial 

under the Sixth and Fourteenth Amendment of the U.S. Constitution, violated the 

presumption of innocence under the Eighth and Fourteenth Amendments, and 

violated section 2.05 of the Texas Penal Code. According to Appellant, the trial 

court’s entry of a deadly-weapon finding where the jury charge did not include a 

special instruction requiring a jury determination on whether a deadly weapon was 

used means that the trial court improperly relied on “an implied or imputed jury 

finding[.]” Appellant also argues in the absence of a separate question on deadly 

weapon, the issue is “handled as a presumption[.]” Under section 2.05 of the Penal 

Code, where the evidence raises a presumption, the trial court must instruct the jury 

on the presumption and the facts giving rise to the presumption must be proven 

beyond a reasonable doubt and that, even if such facts are proved beyond a 

reasonable doubt, the jury is not bound to find the element of the offense sought to 

be presumed. See Tex. Penal Code Ann. § 2.05. 
15

The defense did not object at trial that the jury charge did not request a 

separate finding on whether a deadly weapon was used. Therefore, Appellant failed 

to preserve this alleged error for review. See Tex. R. App. P. 33.1. According to 

Appellant, the failure to give instructions pursuant to section 2.05 constitutes 

fundamental error, even where no objection at trial preserved error. We find this 

argument unmeritorious because we find no error.

According to Appellant, the trial court’s entry of a deadly-weapon finding 

“which was not expressly directed to, or decided by, the jury[]” created “a mandatory 

presumption by operation of law[,]” citing to Yates v. Evatt, 500 U.S. 391 (1991).

Presumptions and inferences are evidentiary devices that permit the factfinder to 

determine the existence of an element of the crime from one or more evidentiary or 

basic facts. Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990) (citing 

Ulster Cty. Court v. Allen, 442 U.S. 140, 156 (1979)). Presumptions may be 

mandatory or permissive. Id. A jury charge creates a mandatory presumption if it 

requires a jury to find an elemental fact based on proof of a predicate fact or if it 

requires the defendant to disprove the elemental fact once the predicate fact has been 

established. See id. A permissive presumption allows, but does not require, a jury to 

infer the element from the predicate facts, and permissive presumptions are generally 

constitutional. See Webber v. State, 29 S.W.3d 226, 231 (Tex. App.—Houston [14th 

Dist.] 2000, pet. ref’d) (citing Willis, 790 S.W.3d at 310). Mandatory presumptions 
16

are unconstitutional because they “relieve the State of the burden of proving every 

element of the offense beyond a reasonable doubt.” Garrett v. State, 220 S.W.3d 

926, 930 (Tex. Crim. App. 2007). 

In Yates, the trial court instructed the jury on two mandatory presumptions: 

that malice is implied or presumed (1) from the willful, deliberate, and intentional 

doing of an unlawful act and (2) from the use of a deadly weapon. 500 U.S. at 401. 

The instructions further provided that the presumptions were not conclusive but were 

rebuttable by the rest of the evidence. Id. The Supreme Court explained that although 

the instructions provided that the presumptions were rebuttable, “the mandate to 

apply them remained, as did their tendency to shift the burden of proof on malice 

from the prosecution to petitioner.” Id. at 401-02. The Court concluded that, 

considering all the evidence, the record did not provide clear evidence of the 

defendant’s intent to kill and that “[t]he burden-shifting jury instructions [that were] 

erroneous in this case may not be excused as harmless error.” Id. at 411.

In this case, the jury charge includes no “burden-shifting jury instructions[.]”

See id. Appellant fails to identify in his Appellate Brief any instruction that required 

the jury “to find an elemental fact upon proof of a particular predicate fact or facts[]” 

that “require[d] the accused to disprove the elemental fact once the predicate fact 

ha[d] been established[,]” or that “eliminate[d] the State’s constitutionally required 

burden of proving guilt beyond a reasonable doubt.” See Willis, 790 S.W.2d at 309. 
17

Therefore, Appellant failed to establish that the trial court’s entry of a deadlyweapon finding “created a mandatory presumption by operation of law.”

Appellant further argues that the failure to give an instruction pursuant to 

section 2.05 of the Penal Code constitutes fundamental error, citing to Wilson v. 

State, 658 S.W.2d 615, 617 (Tex. Crim. App. 1983) and Goswick v. State, 656 

S.W.2d 68 (Tex. Crim. App. 1983). Both Wilson and Goswick concerned an 

instruction that “it shall be presumed that the person was intoxicated[]” where a 

chemical analysis reflected a blood alcohol level greater than 0.10. Wilson, 658 

S.W.2d at 616; Goswick, 656 S.W.2d at 69. Because in Wilson and Goswick

intoxication was an element of the crime charged—driving while intoxicated—the 

presumption pertained to an essential element on which the State had the burden of 

proof, and the Court of Criminal Appeals concluded that the failure to give an 

instruction under section 2.05 was fundamental error and required reversal, even 

though the defendant had not objected to the jury charge. Wilson, 658 S.W.2d at 

617-18; Goswick, 656 S.W.2d at 69-70. 

Section 2.05 of the Penal Code requires a special instruction “when this code 

or another penal law establishes a presumption with respect to any fact[.]” See Tex. 

Penal Code Ann. § 2.05. In this case, however, the jury charge included no 

instruction on any presumption (other than the presumption of innocence). The Court 

of Criminal Appeals has explained that there are three ways in which a trial court 
18

may make an affirmative finding of a deadly weapon when the jury is the trier of 

fact: (1) when the indictment itself alleges a deadly weapon; (2) when the instrument 

used is per se a deadly weapon, such as a firearm; or (3) when the jury makes an 

affirmative finding through a deadly weapon special issue included in the jury 

charge. Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003); see also

Crumpton v. State, 301 S.W.3d 663, 665 (Tex. Crim. App. 2009); Polk v. State, 693 

S.W.2d 391, 394 (Tex. Crim. App. 1985). A deadly weapon is anything that in the 

manner of its use or intended use is capable of causing death or serious bodily injury. 

Tex. Penal Code Ann. § 1.07(a)(17)(B). The Penal Code also specifically defines a 

firearm as a deadly weapon. See id. § 1.07(a)(17)(A); see also Ex parte Huskins, 176 

S.W.3d 818, 820 (Tex. Crim. App. 2005) (“A firearm is a deadly weapon per se.”).

The indictment in this case alleged that Lewis “while in the course of 

committing theft of property owned by [Anton]...and with intent to obtain and 

maintain control of said property, intentionally and knowingly place[d] [Anton] in 

fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, 

to wit: a firearm[.]” The jury charge included a definition of “deadly weapon” that 

tracked the language of section 1.07(a)(17) of the Penal Code, including defining a 

firearm as a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(A). The jury 

charge also stated, in relevant part (with emphasis added):

Now, if you believe from the evidence beyond a reasonable doubt that 

in Jefferson County, Texas, on or about July 22, 2019, the defendant 
19

Timothy Keith Lewis, individually or as a party with one or more others 

as the instruction of “Parties to an Offense” is defined within these 

Instructions, did then and there while in the course of committing theft 

of property owned by [Anton], hereafter styled the Complainant, and 

with intent to obtain or maintain control of said property, intentionally 

or knowingly place [Anton] in fear of imminent bodily injury or death, 

by using or exhibiting a deadly weapon, to-wit: a firearm, you shall 

find the defendant GUILTY of the offense of Aggravated Robbery. 

We cannot agree with Appellant that the application portion of the jury charge 

did not include an instruction on deadly weapon. The instruction specifically 

required that, in order to find the defendant guilty, the jury must find that he used or 

exhibited a deadly weapon (among other elements of the crime). The jury found 

Lewis guilty “as charged in the indictment.” Therefore, we conclude that the trial 

court’s entry of an affirmative finding that Lewis used a deadly weapon, namely a 

firearm, was proper. See Lafleur, 106 S.W.3d at 95. 

Appellant also argues that when a conviction can only be sustained under the 

law of parties, the jury’s verdict does not constitute an affirmative finding on deadly 

weapon in the absence of a specific instruction to the jury on deadly weapon.3 For 

this argument, Appellant cites Frazier v. State, 115 S.W.3d 743 (Tex. App.—

Beaumont 2003, no pet.). In Frazier, we stated that “the verdict did not constitute an 

affirmative finding that Frazier personally used or exhibited a deadly weapon 

3 Appellant raised this argument as a challenge to the sufficiency of the 

evidence. We address it here because the argument challenges the lack of an 

instruction requiring a specific finding on deadly weapon.
20

because her conviction can only be sustained under law of the parties.” Id. at 750. 

The weapon allegedly used in Frazier was a glass beer mug, and the record included 

no evidence that Frazier hit the victim with the mug. Id. at 745, 747. The glass beer 

mug was not a deadly weapon per se. Id. at 749-50. However, in the instant case, the 

indictment alleged the use of “a deadly weapon, to wit: a firearm[,]” and the jury 

charge defined a firearm as a deadly weapon, consistent with the Penal Code. See

Tex. Penal Code Ann. § 1.07(a)(17)(A). 

We find Frazier distinguishable because in this case, the indictment did not 

charge Lewis solely under the law of parties, and the evidence does not reflect that 

Lewis’s conviction could only be sustained under the law of parties. Although the 

jury charge included an instruction on the law of parties, there is no indication that 

the jury found Lewis guilty only as a party and not as a principal. Anton testified 

that four people with guns confronted him outside his home and all four were inside 

his home on the night of the robbery. There is no evidence in the record to support 

Appellant’s assertion on appeal that he stayed in the car while others broke into 

Anton’s home. 

The record before us reflects that, as in Lafleur, the trial court could have 

made a deadly-weapon finding (1) because the indictment alleged the use of a deadly 

weapon and (2) the instrument used—a firearm—was per se a deadly weapon. See
21

Lafleur, 106 S.W.3d at 95. We find no error, and we overrule issues four through 

seven.

Punishment Phase Jury Charge Error

In two issues, Appellant argues that the trial court erroneously included an 

instruction that included references to “good conduct time” or “good time” contrary 

to the requirements of section 4(a) of article 37.07 of the Texas Code of Criminal

Procedure. 

In 2019, the Texas Legislature amended Article 37.07, Section 4, subsections 

(a) through (c), of the Texas Code of Criminal Procedure. Act of May 15, 2019, 86th 

Leg., R.S., ch. 260, § 3, 2019 Tex. Sess. Law Serv. 446, 446-48 (codified at Tex. 

Code Crim. Proc. art. 37.07, § 4(a)-(c) (Supp)). Those amendments apply to any 

defendant sentenced on or after September 1, 2019. See Act of May 15, 2019, 86th 

Leg., R.S., ch. 260, § 3, 2019 Tex. Sess. Law Serv. 446, 448. See Holiness v. State, 

No. 06-21-00038-CR, 2021 Tex. App. LEXIS 8050, at *15 (Tex. App.—Texarkana, 

Oct. 1, 2021, pet. ref’d) (mem. op., not designated for publication) (discussing the 

legislative history of the recent amendments). Lewis argues that the trial court erred 

by using an outdated version of the good conduct time and parole instructions found 

in Section 4(a) of Article 37.07.

The current version of Section 4(a) of Article 37.07 applies to the penalty 

phase of the trial of a felony case if the judgment contains an affirmative finding 
22

under Article 42A.054(c) or (d). See Tex. Code Crim. Proc. Ann. art. 37.07, § (4)(b), 

42A.054(c), (d) (providing that a court may not award community supervision where 

the judgment includes a deadly-weapon finding). Section 4(a) states that the trial 

court shall instruct the jury as follows:

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.

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.”

Id. art. 37.07, § 4(a). There is no reference to good conduct time in the current 

version of Section 4(a). See id. The Texas Court of Criminal Appeals has 

discouraged any deviations from the verbatim language dictated in Section 4(a). See 

Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). The trial court included 

references to good conduct time in the following portion of the jury charge:

Under the law applicable in this case, the defendant, if sentenced to a 

term of imprisonment, may earn time off the period of incarceration 
23

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 assignment, 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, (s)he 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 (s)he may earn. 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 (s)he is sentenced to a term 

of imprisonment, because the application of these laws will depend on 

decisions made by prison and parole authorities.

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. 

Lewis did not object to the charge. The State acknowledges that the jury charge “did 

not precisely track the language of Article 37.07[]” but the State argues that 

Appellant did not suffer egregious harm. Appellant argues that the deviation from 

the required statutory language constitutes reversible error.

When, as here, a defendant fails to object to the court’s charge or states he has 

no objection to it, we will not reverse for jury charge error unless the record shows 
24

“egregious harm” to the defendant. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. 

Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). 

Pursuant to Almanza’s egregious harm standard, the record must show a defendant 

suffered actual, rather than merely theoretical, harm from the charge error. Almanza, 

686 S.W.2d at 174. “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.’” Ngo, 175 S.W.3d at 750 (quoting Hutch v. State, 922 S.W.2d 

166, 171 (Tex. Crim. App. 1996)).

In analyzing whether egregious harm resulted, “the actual degree of harm 

must be assayed in light of the entire jury charge, the state of the evidence, including 

the contested issues and weight of probative evidence, the argument of counsel and 

any other relevant information revealed by the record of the trial as a whole.” 

Almanza, 686 S.W.2d at 171; Shavers v. State, 985 S.W.2d 284, 291 (Tex. App.—

Beaumont 1999, pet. ref’d). Factors courts consider when assessing egregious harm 

in the context of an erroneous parole instruction include: (1) the presumption the 

jury followed any mitigating instruction; (2) whether a jury note existed regarding 

parole or good-conduct time; (3) the State’s emphasis of the possibility of parole in 

argument; and (4) the severity of the defendant’s sentence. See Hooper v. State, 255 

S.W.3d 262, 271-72 (Tex. App.—Waco 2008, pet. ref’d); see also Igo v. State, 210 
25

S.W.3d 645, 647-48 (Tex. Crim. App. 2006) (discussing various factors mitigating 

against finding of egregious harm when appellant received maximum sentence).

Several factors mitigate against a finding of egregious harm in this case. See 

Igo, 210 S.W.3d at 647. The jury assessed punishment at fifty years’ 

imprisonment—about half the maximum sentence. See Tex. Penal Code Ann. 

§ 12.32(a) (first-degree felony is punishable by a term of not more than 99 years or 

less than 5 years). Punishment in the middle of the allowable range does not support 

a conclusion that the jury attempted to apply the parole law to Lewis, or to predict 

how it might be applied to him. See Stewart v. State, 293 S.W.3d 853, 860 (Tex. 

App.—Texarkana 2009, pet. ref’d). The charge contained a curative instruction 

admonishing the jury that it could not consider the extent to which good conduct 

time could be awarded or forfeited by this particular defendant. See id. Absent 

indications to the contrary, we presume the jury followed the trial court’s curative 

instruction. See Shavers, 985 S.W.2d at 292. Here, there are no indications the jury 

did not follow this instruction. Further, the record does not indicate the jury sent any 

notes or had any communications regarding the applicability of good conduct time 

or parole. See id. The State did not mention good conduct or the possibility of parole 

in its argument. See id.; see also Igo, 210 S.W.3d at 647. Finally, during the 

punishment phase, Lewis pleaded “true” to four prior felony conviction 

enhancements: possession of a controlled substance, second-degree robbery, 
26

possession with intent to deliver a controlled substance, and second-degree sexual 

assault of a child. The defense offered no witnesses or evidence during the 

punishment phase. 

Lewis has not demonstrated a reasonable likelihood that the jury was misled 

or that it assessed a higher sentence based upon any alleged misconstruction of the 

parole law in the charge. Nothing in the record suggests that the jury discussed, 

considered, or tried to apply (despite the judicial admonition not to apply) what they 

were told about good conduct time and parole. Neither the prosecutor nor defense 

attorney discussed good conduct time or parole in argument nor urged the jury to 

assess a greater (or lesser) sentence based upon good conduct time or parole. The 

jury did not send out any notes indicating or expressing confusion about the possible 

application of good conduct time or parole to Lewis. The jury did not assess the 

maximum sentence for the offense. See Luquis, 72 S.W.3d at 366-68; Hooper, 255 

S.W.3d at 272. We conclude that any error in the charge on punishment did not result 

in egregious harm. We overrule Lewis’s eighth and ninth issues.

Having overruled all of Appellant’s issues, we affirm the trial court’s 

judgment.

AFFIRMED.

_________________________

 LEANNE JOHNSON

Justice
27

Submitted on November 12, 2021

Opinion Delivered December 29, 2021

Do Not Publish

Before Kreger, Horton and Johnson, JJ.