NUMBER 13-11-00461-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

JOHN PERRY JOSEPH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 19th District Court 

of McLennan County, Texas.

 

MEMORANDUM OPINION1

Before Justices Garza, Benavides, and Perkes

Memorandum Opinion by Justice Perkes

Appellant, John Perry Joseph, appeals his conviction for bail jumping and failure to 

appear (habitual), enhanced by two prior felony convictions, a third-degree felony.

2

 See

 

1

This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an 

order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2

TEX. PENAL CODE ANN. §§ 38.10(a), (f); 12.42 (d) (West 2011). The jury found appellant 

guilty and assessed punishment at thirty-two years’ confinement in the Texas Department 

of Criminal Justice, Institutional Division. By six issues, appellant argues that the trial 

court erred by: (1) failing to sua sponte conduct a competency inquiry; (2) overruling 

appellant’s objection to not receiving reasonable notice of the State’s intent to introduce 

extraneous-offense evidence; (3) granting the State’s motion in limine; (4) improperly 

commenting on appellant’s defenses in the jury charge; (5) sustaining the State’s 

objection to defense counsel’s jury argument; and (6) overruling appellant’s objection to 

the discussion of parole law during jury argument at the punishment phase. We affirm.3

I. COMPETENCY INQUIRY

By his first issue, appellant contends the trial court erred by failing to sua sponte 

conduct an informal competency inquiry. Appellant emphasizes, “The record is clear 

that appellant was not able to communicate and cooperate with his attorney, engaged in 

delusional speculation about the offense, and disregarded his attorney’s advice . . . and 

[that he] had been diagnosed with Post-Traumatic Stress Disorder during his Army 

service in Vietnam.”

A. Standard of Review

A defendant is presumed competent to stand trial and shall be found competent to 

stand trial unless proven incompetent by a preponderance of the evidence. TEX. CODE

 

2

 While appellant was on bond for the offense of possession of heroin, he failed to appear at trial. 

Although appellant and his wife came to the courthouse on the day of trial, appellant fled after his wife was 

arrested. Appellant does not challenge the sufficiency of the evidence to support his convictions. 

3

 Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for 

it. See TEX. R. APP. P. 47.4. 
3

CRIM. PROC. ANN. art. 46B.003(b) (West 2006); Salahud-din v. State, 206 S.W.3d 203, 

207 (Tex. App.—Corpus Christi 2006, pet. ref’d). A defendant is incompetent to stand 

trial if he does not have (1) sufficient present ability to consult with his attorney with a 

reasonable degree of rational understanding; or (2) rational understanding as well as 

factual understanding of the proceedings against him. TEX. CODE CRIM. PROC. ANN. art. 

46B.003(a) (West 2006). 

If evidence is brought to the trial court’s attention that raises a bona fide doubt 

about the defendant’s competency, the court must conduct an informal inquiry outside the 

jury’s presence to determine if there is evidence that would support a finding of 

incompetence. TEX. CODE CRIM. PROC. ANN. art. 46B.004 (West Supp. 2011);

4 Montoya 

v. State, 291 S.W.3d 420, 425 (Tex. Crim. App. 2009). “Evidence capable of creating a 

bona fide doubt about an accused’s competency may come from the trial court’s own 

observations, known facts, evidence presented, motions, affidavits, or any other 

reasonable or credible source.” Hobbs v. State, 359 S.W.3d 919, 924 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.) (citing Brown v. State, 129 S.W.3d 762, 765 

(Tex. App.—Houston [1st Dist.] 2004, no pet.)). “A bona fide doubt may exist if the 

 

4

 Article 46B.004 was amended effective September 1, 2011 to add section (c-1), which provides 

in relevant part that “the court is not required to have a bona fide doubt about the competency of the 

defendant.” See Act of May 19, 2011, 82nd Leg. R.S. ch. 822, §§ 21(a), 22, 2011 Tex. Gen. Laws 822 

(codified at TEX. CODE CRIM. PROC. ANN. art. 46B.004(c-1) (West Supp. 2011) (“Except as provided in 

subsection (b) of this section, the change in law made by this Act applies only to a defendant with respect to 

whom any proceeding under Chapter 46B, Code of Criminal Procedure, is conducted on or after the 

effective date [Sept. 1, 2011] of this Act.”). We do not determine the effect of this subsection to the case at 

hand because the subsection was not in effect at the time of appellant’s hearing. 
4

defendant exhibits truly bizarre behavior or has a recent history of severe mental illness or 

at least moderate retardation.” Montoya, 291 S.W.3d at 425.5 

We review a trial court’s decision to not conduct an informal competency hearing 

for an abuse of discretion. See id. at 426; Moore v. State, 999 S.W.2d 385, 393 (Tex. 

Crim. App. 1999). A trial court abuses its discretion if its decision is arbitrary or 

unreasonable. Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.—Fort Worth 2005, 

pet. ref’d) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We give great 

deference to the trial court’s first-hand factual assessment of appellant’s mental 

competency. McDaniel v. State, 98 S.W.3d 704, 713 (Tex. Crim. App. 2003) (citing 

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); see also Montoya, 291 

S.W.3d at 426 (“those who observed the behavior of the defendant at the hearing were in 

a better position to determine whether [he] was presently competent.”).

B. Background Facts

During pretrial, the trial court judge asked appellant if he understood the charges 

against him, and appellant responded, “No, I don’t understand. I understand, your 

Honor, for the Bail Jumping, but the Enhancement, it was on another case and things, you 

know, and my lawyer informed me that it was dispensed of and everything.” The trial

court provided appellant a recess to consult with his attorney, after which the following 

exchange transpired:

 

5

 The Legislature’s amendment to article 46B.004, see supra note 4, effectively supersedes 

Montoya v. State and makes a “suggestion of incompetency”—not a trial court’s bona fide doubt—the 

threshold requirement for conducting a competency inquiry. However, as noted in note 4 supra, this 

amendment had not taken effect as of the time of these proceedings, and thus the court of criminal appeal’s 

holding in Montoya is still controlling in this case. 
5

[COURT]: I hear you’ve been arguing out here audibly in the

courtroom with your attorney. It’s obvious that there 

are some things that you don’t understand.

[APPELLANT]: Didn’t understand, yeah.

[COURT]: But I need to make sure you understand what you’re 

accused of today.

[APPELLANT]: Yeah.

[COURT]: Do you understand that?

[APPELLANT]: Yeah. Yes, sir.

[COURT]: Do you know what you’re accused of doing in the 

Indictment?

[APPELLANT]: No. Explain it to me, Your Honor.

[COURT]: You are indicted for the offense of Felony Bail 

Jumping. Do you understand that charge?

[APPELLANT]: Yeah.

. . . .

[COURT]: . . . Do you understand that Felony Bail Jumping is a 

third degree felony?

[APPELLANT]: No, I don’t understand that.

[COURT]: It is punishable by not less than two years nor more 

than 10 years in the penitentiary—do you understand 

that—and you could be assessed a fine in any amount 

not to exceed $10,000? Do you understand that?

[APPELLANT]: Yeah.

After the trial judge subsequently asked, “[D]o you understand what you’re accused of, as 

you stand before me at this moment[?]” appellant responded, “Yeah.” 
6

Appellant thereafter made various outbursts during the trial, requiring the judge to 

dismiss the jury and admonish appellant to not interrupt. For example, appellant called 

the attorney who represented him in the earlier heroin possession case, and whom the 

State called as a witness, a liar at the end of his testimony. Additionally, appellant 

interrupted his attorney’s cross-examination and demanded to represent himself. 

The trial court thereafter discussed whether appellant was competent to represent 

himself at trial. Appellant informed the trial court that he was a disabled Vietnam War 

veteran; that he suffered from post-traumatic stress disorder (“PTSD”) in the past; and 

that he receives daily medication and treatment for mood changes. Appellant also said 

that he has been taking medication for about thirty years and that he attended individual 

and group therapy sessions, but that he did not take his medication that day. Although 

appellant’s counsel from his earlier heroin case felt that appellant should not be permitted 

to represent himself, his trial attorney thought that he could do so and informed the trial 

court that appellant was competent to stand trial. Appellant subsequently withdrew his 

motion to represent himself, explaining, “I could right now tell my attorney what I want him 

to ask.” The trial judge stated, “Do you understand he’s obligated to employ his 

professional skill in determining how to phrase the questions and exactly what to ask? 

Do you understand that?” Appellant responded, “Well, that’s the way it should be, the 

way I understand it.” 

C. Analysis

The trial court inquired whether appellant had a factual and rational understanding 

of the proceedings against him. The court’s lengthy pre-trial exchange with appellant, 
7

only a portion of which is described above, concerned this prerequisite to competency. 

That the court investigated whether appellant was competent to represent himself without 

the assistance of an attorney is of no moment. The competency for self-representation 

has never been the standard for competency to stand trial, and the trial court’s concern 

hinged on appellant’s unfamiliarity with evidentiary and procedural rules. Further, in 

considering whether appellant was competent to represent himself, appellant manifested 

the ability to consult with his attorney with a reasonable degree of rational understanding. 

The record shows that appellant disagreed with the trial judge, witnesses, and, at 

times, his attorney’s trial strategy. Being difficult or argumentative, however, does not 

prove one’s inability to consult with an attorney with a reasonable degree of rational 

understanding or one’s ability to rationally and factually understand the proceedings. 

See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (West 2006); Moore, 999 S.W.3d at 395 

(“While appellant’s comments were inappropriate violations of court decorum, they do not 

constitute evidence of his inability to consult with counsel, or factually appreciate the 

proceedings against him.”). In fact, appellant confirmed that he understood the charges 

and potential sentence against him, and his attempt to terminate his attorney’s 

representation was abandoned after appellant reasoned that he could maintain control 

over the trial strategy, subject to his attorney’s professional discretion. 

The facts of this case are similar to the facts of Rojas v. State. See 228 S.W.3d 

770 (Tex. App.—Amarillo 2007, no pet.). In Rojas, the defendant argued on appeal that 

the trial court erred by not conducting an informal inquiry into his competency to stand 

trial, even though “his conduct at trial was sufficiently bizarre to raise a bona fide doubt as 
8

to his competency.” Id. at 772. Specifically, the defendant interrupted voir dire with 

comments; answered the prosecutor’s questions to the venire panel; offered his 

unsolicited views on the benefits of legalizing drug use and provided commentary on the 

“differing treatment of drug users in other parts of the world;” responded during testimony 

with answers that “tended to go beyond the question asked”; and “seized any opportunity 

to express his view that police conspired to frame him.” Id. at 772–73. Our sister court 

concluded, “His comments, while procedurally improper and almost certainly unwise, 

evidenced a proper understanding of the proceeding and the factual basis for his 

prosecution.” Id. at 773. The court held that the trial court did not abuse its discretion in 

failing to conduct further informal inquiry. Id.

As the defendant in Rojas, appellant made unsolicited comments and commentary 

in violation of courtroom decorum. Like the Rojas defendant, appellant offered his views 

on the law. Unlike the defendant in Rojas, appellant’s testimony stayed within the scope 

of the questions asked. After reviewing the record, we conclude that appellant’s conduct 

did not rise to the level necessary to show an abuse of discretion by the trial court for not 

conducting further inquiry into his competency to stand trial. See Lawrence, 169 S.W.3d 

at 322 (defendant’s “rambling and nonresponsive answers” revealed “that he simply 

wanted his day in court and wanted to tell his story his way.”). 

Regarding appellant’s past PTSD, “evidence of past mental impairment is only 

sufficient to raise a bona fide doubt about competency if the evidence indicates that the 

defendant is presently ‘incapable of consulting with counsel or understanding the 

proceedings against him.’” Iniquez v. State, 374 S.W.3d 611, 617 (Tex. App.—Austin 
9

2012, no pet.) (quoting Moore, 999 S.W.2d at 395–96); see also Charley v. State, No. 

05-08-01678-CR, 2010 WL 2510208, at *2 (Tex. App.—Dallas Jun. 23, 2010, pet. ref’d) 

(mem. op., not designated for publication) (overruling defendant’s issue that the trial court 

should have conducted an informal competency hearing based, in part, on his statements 

that “he had been diagnosed with PTSD as a result of military service in Iraq,” suffered 

flashbacks, was discharged from the military as a disabled veteran, and was on 

medication). No such evidentiary showing has been made. 

The record does not show that appellant lacked the sufficient competency to stand 

trial. We defer to the trial court’s first-hand factual assessment of appellant’s mental 

competency. See Montoya, 291 S.W.3d at 426; McDaniel, 98 S.W.3d at 713. We 

overrule appellant’s first issue.

II. NOTICE OF INTENT TO OFFER EXTRANEOUS OFFENSE EVIDENCE

By his second issue, appellant contends the trial court erred in overruling his

objection that the State failed to provide reasonable notice of its intent to introduce 

extraneous-offense evidence. We disagree.

On February 22, 2011, appellant requested notice of the State’s intention to use 

extraneous-offense evidence. On Thursday, May 5, 2011, the State faxed appellant’s 

attorney a copy of its notice of intent to use thirty-four instances of other crimes, wrongs, 

or acts.6 On Tuesday, May 10, 2011, appellant’s trial began. Appellant requested the 

trial court to hold the State’s notice untimely, arguing that appellant only had two business 

 

6

 The record does not reflect what crimes, wrongs or acts were included in the State’s notice. 

The State’s notice was not admitted into evidence, was not included in the record on appeal, and was not 

specifically discussed with respect to what specific crimes, wrongs or acts were being challenged.
10

days and the weekend between the notice and the trial. When the trial court asked 

whether the evidence would be used during guilt/innocence or punishment, the State 

answered, “Judge, if he testifies, we will get into the ones that Rule 609 allows us to, but 

other than that, nothing.”7 The trial court overruled appellant’s objection. 

A. Standard of Review 

We review a trial court’s rulings on the admissibility of extraneous offenses for an 

abuse of discretion. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible 

v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). So long as the trial court’s ruling 

is “within a ‘reasonable zone of disagreement,’” there is no abuse of discretion and the 

ruling will be upheld. Devoe, 354 S.W.3d at 469 (quoting Prible, 175 S.W.3d at 731); see 

Miller v. State, 343 S.W.3d 499, 503 (Tex. App.—Waco 2011, pet. ref’d) (citing Gonzalez 

v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003)). 

Texas Rule of Evidence 404(a) disallows the use of character evidence to prove 

that an action is in conformity with a character trait, but rule 404(b) allows the use of 

character evidence for non-conformity purposes. See TEX. R. EVID. 404(a), (b);

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (en banc). If a 

defendant timely requests reasonable notice of the State’s intent to use 

extraneous-offense evidence under rule 404(b), the State must provide “reasonable 

notice . . . in advance of trial . . . .” TEX. R. EVID. 404(b). “Rule 404(b) literally conditions 

the admissibility of other-crimes evidence on the State's compliance with the notice 

 

7

 Rule 609 allows evidence of prior convictions to be used for impeachment purposes. See TEX. 

R. EVID. 609.

 
11

provision of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App.

2005) (citations omitted). 

“There is no statutory meaning of ‘reasonable’ as provided in rule 404(b), in the 

Code of Criminal Procedure, or otherwise in the Rules of Evidence.” Patton v. State, 25 

S.W.3d 387, 392 (Tex. App.—Austin 2000, pet. ref’d). Courts generally focus on 

whether the notice was sufficiently timely to be considered “reasonable.” Id. (citing 

Neuman v. State, 951 S.W.2d 538, 540 (Tex. App.—Austin 1997, no pet.); Hernandez v. 

State, 914 S.W.2d 226, 234–35 (Tex. App.—Waco 1996, no pet.); Self v. State, 860 

S.W.2d 261, 264 (Tex. App.—Fort Worth 1993, pet. ref’d)). The reasonableness of the 

State’s notice turns on the facts and circumstances of each case. Id. There is “no 

bright line as to the number of days or amount of time” that defines “reasonable notice,” 

and the trial court should determine the issue “on a case-by-case basis under the totality 

of circumstances.” Id. at 393 (citing Ramirez v. State, 967 S.W.2d 919, 923 (Tex. 

App.—Beaumont 1998, no pet.)). 

B. Analysis

On appeal, appellant maintains the State failed to provide reasonable notice of its 

intent to use extraneous-offense evidence, comparing the available preparation time in 

this case to the inadequate preparation time in Hernandez v. State. See 914 S.W.2d at

234 (“We do not believe that a 404(b) response filed on a Friday afternoon [at 2:50 p.m.] is 

adequate or reasonable notice for a trial beginning the following Monday morning”). 

We must look to the contextual “facts and circumstances” to determine whether the 

amount of time was reasonable. Patton, 25 S.W.3d at 392. The State provided notice 
12

upon discovering the trial was set for the following week, and limited its use of 404(b) 

evidence at trial to prior convictions only. Based on this background, we hold that the 

four days between the State’s notice and appellant’s trial was not unreasonable. See id. 

at 392 (holding adequate the State’s notice that was faxed on Sunday afternoon and 

received by defendant’s counsel on Monday, the day before trial). 

Even assuming arguendo notice was unreasonable, appellant failed to prove that 

he was harmed, such as by showing he was surprised by the State’s proposed evidence

or how his defensive strategy would have been different had he been given notice earlier. 

See Hernandez, 176 S.W.3d at 825–26 (to show harm resulting from a lack of reasonable 

notice, defendant must show both he was surprised and how his defensive strategy would 

have differed with proper notice). To the contrary, during appellant’s case-in-chief, 

appellant took the stand to testify in his defense, and testified extensively regarding

numerous arrests and misdemeanors. The State’s evidence was presented in rebuttal 

and was nominal in content. We overrule appellant’s second issue.

III. MOTION IN LIMINE 

By his third issue, appellant contends the trial court erred in granting the State’s 

motion in limine, which precluded appellant from attacking the merits of the underlying

possession charge, and thereby limited appellant’s defense to the merits of the 

bond-jumping case. 

Appellant did not object to the trial court’s ruling on the State’s motion in limine, and 

appellant did not attempt to offer any evidence on the precluded defense. The Texas 

Court of Criminal Appeals has held that “a ruling on a motion in limine that excludes 
13

defense evidence is subject to reconsideration throughout trial and that to preserve error 

an offer of the evidence must be made at trial.” Warner v. State, 969 S.W.2d 1, 2 (Tex. 

Crim. App. 1998) (en banc) (citing Fuller v. State, 827 S.W.2d 919, 929 n.10 (Tex. Crim. 

App. 1992)). Preservation of error is a prerequisite to presenting a complaint on appeal. 

See TEX. R. APP. P. 33.1(a). 

Appellant failed to preserve this issue for review on appeal. We overrule 

appellant’s third issue.

IV. JURY CHARGE ERROR 

By his fourth issue, appellant argues the trial court erred in commenting on his

defenses in the jury charge. Appellant contends that “by singling put [sic] the 

continuance theory in its application of the law to the facts, it not only restricted the 

defensive theories of Joseph’s case, it was a direct comment on the evidence.” 

Appellant further complains that the instruction “completely ignored the [necessity] 

defense . . . (that [he] wanted his day in court and fled only after the state arrested his 

witness in the courthouse hallway, just prior to the jury selection).”

A. Jury Charge 

The relevant portion of the jury charge reads, as follows:

You are instructed that it is a defense to Felony Bail Jumping and 

Failure to Appear in accordance with the terms of release that the person 

failing to appear had a reasonable excuse for such failure. A “reasonable 

excuse” is one that would be advanced by an ordinary and prudent person 

in the same circumstances as the person offering the excuse.

Therefore, if you find from the evidence beyond a reasonable doubt 

that on or about August 30th, 2010, the Defendant intentionally or 

knowingly failed to appear in accordance with the terms of his release but 

further find from the evidence that the Defendant’s excuse for his failure to 
14

appear, to-wit, that he thought his case had been delayed for 30 days, is a 

reasonable excuse, then you will acquit the Defendant and say by your 

verdict “Not Guilty.”

Appellant did not object to the court’s jury charge, and the record does not show any 

request by appellant for the inclusion of a defensive instruction on necessity. 

B. Analysis

Our first step is to determine whether the jury charge contains error. See Mann v. 

State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); Steadman v. State, 160 

S.W.3d 582, 585 (Tex. App.—Waco 2005, pet. ref’d). Jury-charge error, however, need 

not be preserved for review on appeal. See Mann, 964 S.W.2d at 641; Steadman, 160 

S.W.3d at 585). Rather, the harm analysis is different for unpreserved error than for

preserved error: “Where there has been a timely objection made at trial, an appellate 

court will search for only ‘some harm.’ By contrast, where the error is urged for the first 

time on appeal, a reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 

641 (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).

1. Comment on the Weight of the Evidence 

A trial court may not comment on the weight of the evidence in a jury charge, and is 

prohibited from expressing any opinion as to the weight of the evidence, from summing up 

testimony, from discussing facts, or from using any argument in the charge calculated to 

arouse the sympathy or to excite the passions of the jury. TEX. CODE CRIM. PROC. ANN. 

art. 36.14 (West 2007). A charge that constitutes a comment by the court on the 

elements of the offense charged or assumes the truth of a controverted issue is a 

comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 
15

26, 32 (Tex. Crim. App. 1986) (en banc); Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim.

App. 1982) (panel op.). In determining whether a charge comments on the weight of the 

evidence, we review the “‘charge as a whole rather than as a series of isolated 

statements.’” Smith v. State, 959 S.W.2d 1, 27 (Tex. App.—Waco 1997, pet. ref’d) 

(quoting Kitt v. State, 875 S.W.2d 19, 20 (Tex. App.—Texarkana 1994, pet. ref’d)); see 

Whaley, 717 S.W.2d at 32. 

We conclude the trial court did not comment on the weight of the evidence by 

tracking the applicable statutory language, including the codified defense of “reasonable 

excuse.” See TEX. PENAL CODE ANN. § 38.10(c) (West 2011); see also Gallegos v. State, 

828 S.W.2d 577, 579 n. 1 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (citing M. 

TEAGUE, TEXAS CRIMINAL PRACTICE GUIDE §133.110 [2] (1992)) (suggesting a substantially 

similar jury charge for the “reasonable excuse” defense). A court’s usage of statutory 

language in the jury charge does not fall within the precluded conduct of article 36.14 of 

the Texas Code of Criminal Procedure, nor does it assume the truth of a controverted 

issue. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Whaley, 717 S.W.2d at 32; Grady,

634 S.W.2d at 317.

 2. Defensive Instructions

“A trial court does not have a duty to sua sponte instruct the jury on a defensive 

issue raised by the evidence.” Caminorreal v. State, 374 S.W.3d 479, 482 (Tex. 

App.—Corpus Christi 2012, no pet.) (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim.

App. 1998) (en banc); Vasquez v. State, 2 S.W.3d 355, 362 (Tex. App.—San Antonio 

1999, pet. ref'd)); see Carroll v. State, 266 S.W.3d 1, 3 (Tex. App.—Waco 2008, pet. 
16

ref’d). The defense must request an instruction for there be error. Williams v. State, 

273 S.W.3d 200, 223 (Tex. Crim. App. 2008) (citing Posey, 966 S.W.2d at 63). 

In the application section, the jury charge shows that the trial court submitted 

appellant’s mistake of fact defense—he thought his case had been delayed for 30 

days—as a potential “reasonable excuse.” The trial court did not err by omitting the 

unrequested defensive theory of “necessity” in the jury charge. We overrule appellant’s 

fourth issue. 

V. JURY ARGUMENT

By his fifth issue, appellant argues the trial court erred in sustaining the State’s 

objection to defense counsel’s statements during closing argument about the State’s 

paperwork containing inconsistent dates for appellant’s failure to appear. The following 

is the relevant section of the argument:

[DEFENSE]: I found it interesting, in the Indictment there is a lot to do about 

August 30th being the date that he failed to show, and in the 

grand scheme of things, an Indictment, as you know, is no 

evidence of any guilt, and the Court instructs you of that. But 

when the State has all the resources it has, all the information 

such as what the State’s evidence is—and in here, and you’ll 

take them back and you can look at them—several of the 

documents say he didn’t show on the 30th and several say he 

didn’t show on the 31st. This is the State’s paperwork. This 

is not our paperwork. You know, you would think when they 

are trying to deprive one of our citizens of their liberty, they 

would get it right. I mean, isn’t that a reasonable argument? 

Now, is that enough to let him go? I don’t know.

[STATE]: Judge, I’m going to object. That’s a misstatement of the law. 

It is not enough to let him go, and they have just been 

instructed we don’t have to prove—

[COURT]: Sustained.
17

[DEFENSE]: It may create reasonable doubt.

[STATE]: Judge, actually, that’s a misstatement of the law. We don’t 

have to prove what day it was.

[COURT]: I sustain the objection.

On appeal, appellant insists that the State misconstrued his counsel’s statements. 

Appellant asserts that defense counsel was attempting to argue “the conflicting

paperwork might have confused appellant as to when he was required to be in Court” 

rather than challenge the sufficiency of the evidence on the date element. 

A. Standard of Review

We review the trial court’s ruling on the State’s objection to appellant’s jury 

argument for abuse of discretion. See Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. 

App. 2010). A trial court abuses its discretion if its decision is arbitrary or unreasonable. 

Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc); Lawrence v. State, 169 

S.W.3d 319, 322 (Tex. App.—Fort Worth 2005, pet. ref’d). The trial court has broad 

discretion in controlling the scope of closing argument, but it may not prevent defense 

counsel from making a point essential to the defense. Lemos v. State, 130 S.W.3d 888, 

892 (Tex. App.—El Paso 2004, no pet.). Prohibiting counsel from making such a jury 

argument constitutes denial of the defendant's right to counsel. Davis, 329 S.W.3d at 

825. Jury argument that misstates the law or is contrary to the court's jury charge is 

improper. See Thomas v. State, 336 S.W.3d 703, 713 (Tex. App.—Houston [1st Dist.] 

2010, pet. ref'd); Peak v. State, 57 S.W.3d 14, 18 (Tex. App.—Houston [14th Dist.] 2001, 

no pet.). We determine de novo whether a party misstated the law during jury argument. 

Thomas, 336 S.W.3d at 713.
18

B. Analysis

The trial court did not abuse its discretion. On its face, the comment was about 

the inconsistency of the dates on which appellant failed to show—documents, including 

the indictment for bail jumping, that were drafted after appellant failed to show; those 

documents were therefore incapable of causing appellant’s bond jumping. The 

comment did not cover pre-offense documents, and the sustained objection did not 

preclude an argument that appellant was confused about the date on which he was to 

appear. 

Considering the court’s broad discretion in controlling the scope of closing 

argument, we hold that the trial court did not err in sustaining the State’s objection, and it 

did not prevent defense counsel from making a point essential to the defense. See

Lemos, 130 S.W.3d at 892. We overrule appellant’s fifth issue. 

VI. COMMENTS ON PAROLE LAW

By his sixth issue, appellant argues the trial court erred by overruling his objection 

to the State’s comments about his eligibility for parole that were made during the State’s

argument in the punishment phase. The complained-of comment, objection, and ruling 

come from the following excerpt:

[STATE]: Now, you’ll see on the bottom of Page 4 in your charge that he 

will be eligible for parole after he serves one-fourth, so you 

need to think about that. The minimum is 25, so if you 

decide—

[DEFENSE]: Judge, I’m going to object to that. He may or may not be 

eligible, and the Court instructs this jury that they are not to 

consider that.

[STATE]: No, he is eligible, Judge.
19

[COURT]: He’ll be eligible, plus any good conduct time.

[DEFENSE]: But it doesn’t mean he’ll get it.

[COURT]: That doesn’t mean he’ll get it, but he will be eligible.

. . . .

[STATE]: So, like I said, if you’ll read on Page 4, the law is, after he 

serves one-fourth, he is eligible to get out. So if you think, 

“We want him to serve a certain number before he has even 

got the chance to get out,” you have to multiply by four. So 

25 would actually equal about six. If you give them [sic] 25, 

after about six, he can get parole. Will they give it to him? I 

don’t know. But he will be eligible for it. So that’s something 

you-all need to keep in mind.

Relevant to this appellate issue, the jury instruction contained the following:

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 he may earn, if any, equals 

one-fourth (1/4) of the sentence imposed or fifteen years, whichever is less. 

Eligibility for parole does not guarantee that parole will be granted.

This instruction tracks the statutorily-provided instruction relevant to this case. See TEX. 

CODE CRIM. PROC. ANN. art. 37.07 § 4(b) (West Supp. 2011). On appeal, appellant 

maintains that the State’s parole argument was improper. 

A. Standard of Review

We review the trial court’s ruling on jury argument for an abuse of discretion. See

York v. State, 258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole v. State, 

194 S.W.3d 538, 546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Montgomery v. 

State, 198 S.W.3d 67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). To be permissible, 

the State’s jury argument must fall within one of the four permissible areas of jury 
20

argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; 

(3) answer to an argument of opposing counsel; or (4) plea for law enforcement. See 

Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (citing Brown v. State, 

270 S.W.3d 564, 570 (Tex. Crim. App. 2008)); Lopez v. State, 288 S.W.3d 148, 159–60 

(Tex. App.—Corpus Christi 2009, pet. ref’d); see also Harris v. State, 996 S.W.2d 232, 

237 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Washington v. State, 668 

S.W.2d 715, 718 (Tex. App.—Houston [14th Dist.] 1983, no pet.) (confirming the four 

“categories apply equally to both the guilt-innocence and punishment phases of a criminal 

trial”)). The reviewing court should uphold the trial court’s ruling if it is within the zone of 

reasonable disagreement. Espinosa v. State, 328 S.W.3d 32, 38 (Tex. App.—Corpus 

Christi 2010, pet. ref’d) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 

2004)). 

B. Analysis

Summation of parole law, as long as it is accurate and not specifically applied to a 

defendant, falls within the permissible area of “proper plea for law enforcement.” See 

Holt v. State, 899 S.W.2d 22, 25 (Tex. App.—Tyler 1995, no pet.). At issue here is 

whether the prosecutor’s discussion of appellant’s eligibility for parole constituted specific 

application of parole law to the defendant, which is impermissible. See, e.g., Daniels v.

State, 633 S.W.2d 899, 902 (Tex. Crim. App. 1982) (panel op.) (citations omitted).

The Texas Code of Criminal Procedure requires that a jury be given instructions 

about parole eligibility. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(b) (West Supp. 

2011). The Court of Criminal Appeals, in considering a prosecutor’s summation of 
21

parole law, has concluded that it is not “improper for the prosecutor to accurately restate 

the law given in the jury charge.” Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 

1984) (en banc); see also Taylor v. State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007).

In Taylor, the court of criminal appeals considered the following comments given 

by a prosecutor during jury argument at the punishment phase:

Now let me stop and talk to you about the charge for just a moment so that 

you can—you probably do understand already, but the Judge mentioned to 

you that as far as parole eligibility that the defendant becomes eligible for 

parole after he serves one-half of the sentence imposed or thirty years. Let 

me explain that to you for just a moment. Let’s say a sentence of 40 

years—

. . . .

A 40-year sentence means the defendant becomes eligible for parole after 

serving 20 years. 

. . . .

A 60-year sentence means he becomes eligible after serving 30 years. A 

sentence of life or 75 still means he becomes eligible after 30 years. 

Taylor, 233 S.W.3d at 359. After considering the foregoing discussion of the defendant’s 

parole eligibility, the court of criminal appeals held that the prosecutor “did not convey any 

information beyond what was properly contained in the charge when he explained how 

the parole eligibility rules set out in the charge worked with forty, sixty and seventy-five 

year sentences.” Id.

Here, the State’s comments about parole law, like the prosecutor’s comments in 

Taylor, merely explained what was properly included in the jury charge. Moreover, the 

State emphasized, “Will they give it [parole] to him? I don’t know. But he will be eligible 

for it. So that’s something you-all need to keep in mind.” This argument invited the jury 
22

to do what it can properly do—“determine how long a term it wishes a defendant to serve 

before that defendant may become eligible for parole . . . .” Waters v. State, 330 S.W.3d 

368, 374 (Tex. App.—Fort Worth 2011, pet. ref’d) (citations omitted); see also Taylor, 233 

S.W.3d at 360 (Womack, J. concurring) (“[T]he jury may base its assessment of 

punishment in part on consideration of a sentenced defendant’s parole eligibility . . . .” 

(quoting Byrd v. State, 192 S.W.3d 69, 72 (Tex. App.—Houston [14th Dist.] 2006, pet. 

ref’’d))).

We hold that the trial court did not abuse its discretion in overruling appellant’s 

objection. See Taylor, 233 S.W.3d at 359; Waters, 330 S.W.3d at 374; York v. State, 

258 S.W.3d 712, 717 (Tex. App.—Waco 2008, pet. ref’d); Cole v. State, 194 S.W.3d 538, 

546 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We overrule appellant’s sixth 

issue. 

VII. CONCLUSION

We affirm the trial court’s judgment. 

 

GREGORY T. PERKES

Justice

Do not publish.

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

Delivered and filed the 

11th day of April, 2013.