In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00230-CR

No. 02-18-00231-CR

No. 02-18-00232-CR

___________________________

On Appeal from the 211th District Court

Denton County, Texas

Trial Court Nos. F17-1865-211, F17-1867-211, F17-1868-211

Before Gabriel, Pittman, and Bassel, JJ.

Memorandum Opinion by Justice Bassel

EARL THOMPSON, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

Appellant Earl Thompson was indicted and pleaded guilty in three separate 

cases of burglary of habitation with intent to commit sexual assault. See Tex. Penal 

Code Ann. § 30.02. During the punishment phase, the trial judge sua sponte asked

Appellant if he wanted to testify. Appellant stated that he did, but after a ten-minute

recess to confer with his counsel, Appellant’s trial counsel did not call him as a 

witness. The jury assessed Appellant’s punishment at confinement for life in the 

Institutional Division of the Texas Department of Criminal Justice (TDCJ), and the 

trial court sentenced him accordingly. Appellant raises two issues asserting that his 

Sixth Amendment constitutional right to testify was violated and that the jurors

improperly considered parole when deliberating. Because the record on this direct 

appeal is inadequate for us to resolve whether there was deficient performance by 

Appellant’s counsel let alone prejudice with regard to his Sixth Amendment 

complaint, and because a complaint to the trial court’s response to the jury’s note 

concerning parole was not preserved—and even if preserved, was not an error— we 

affirm.
3

II. BACKGROUND1

Following his commission of a series of home-invasion assaults in Denton,

Texas, Appellant was arrested and charged in three cases of burglary of habitation 

with intent to commit sexual assault. He pleaded guilty in all three cases and elected 

to have a jury assess punishment for all three cases in one punishment trial. During

the punishment trial, the State called 31 witnesses.

Before the defense called its first witness and outside of the presence of the 

jury, the trial court asked both Appellant and his trial counsel if they had discussed the 

possibility of Appellant testifying and his Fifth Amendment right not to testify. After

Appellant and his trial counsel affirmed that they had discussed the matter, the trial 

court asked Appellant if he wanted to testify. Appellant stated that he wanted to 

testify, which prompted the trial court to reiterate again that it is his absolute right not 

to testify and that the exercise of the right cannot be used against him. Appellant 

reiterated that he wanted to testify. The entire exchange appears in the reporter’s 

record as follows:

THE COURT: All right. We’re back on the record from the lunch 

break. The jury has not been seated at this time.

[Appellant’s trial counsel], have you had plenty of time to

admonish your client and go over with him his right to exercise his Fifth 

Amendment and not testify in this matter?

 1

Because the resolution of Appellant’s two issues does not require more, we 

provide a limited recitation of the factual and procedural background of these cases.
4

[APPELLANT’S TRIAL COUNSEL]: I have, Your Honor.

THE COURT: All right. Mr. Thompson, I just want to reiterate 

and make sure that you have had ample opportunity to speak to your 

attorney about your ability to be able to -- one of two things, either 

testify in this matter or exercise your Fifth Amendment right to not 

testify.

Have you had time to go over with your attorney all of the 

options that you have regarding your testimony?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And have you made a decision?

THE DEFENDANT: Yes, sir.

THE COURT: And what is your decision?

THE DEFENDANT: Testify.

THE COURT: You would like to testify?

THE DEFENDANT: Uh-huh.

THE COURT: All right. And that is your absolute right to do 

so. I just want to make sure that I reiterate that if you choose to exercise 

your constitutional right to remain silent, you understand that that is an 

absolute right and that cannot be used against you and, in fact, the jury 

will be instructed both orally by me reading the charge and in writing

that they cannot use that circumstance against you? Do you understand 

that?

THE DEFENDANT: Yes, sir.

THE COURT: And understanding that, do you still choose to 

testify in this matter?

THE DEFENDANT: Yes, sir.
5

After the defense called its second witness, the trial court again discussed 

Appellant’s Fifth Amendment rights with him before granting a ten-minute recess for 

Appellant to discuss with his trial counsel whether he still wanted to testify:

THE COURT: Mr. Thompson, we spoke and I gave you

admonishments before the jury was seated, and I know you’ve had lots 

of opportunities to speak with [your trial counsel] about you testifying in 

this case. One of the things I wanted to bring up to you is you 

understand if you take the stand your attorney is going to ask you 

questions first? You understand you cannot assert a Fifth Amendment 

privilege and remain silent when the State begins to ask you questions? 

You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: It’s a two-way street. And I know [your trial 

counsel] has talked to you about that, but I want to reiterate that as well, 

so we’ve taken a break so that you can talk to your attorney a few more 

minutes before you’re called to testify. So I’ve granted that recess in 

order for you to speak to your attorney in private to see if you want to 

stick with your decision of testifying or if you’d like to assert your Fifth

Amendment privilege. 

With that, we’ll be in recess for ten minutes.

[APPELLANT’S TRIAL COUNSEL]: Thank you, Your Honor.

After the recess, the defense called a total of three witnesses, but not Appellant. 

The record does not reflect that the issue of whether Appellant wanted to testify came 

up again.

After both sides rested, the trial court tendered its charge to the jury for all 

three cases. The charge included the following instructions regarding parole:

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 
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actual time served equals one-half of the sentence imposed or 30 years, 

whichever is less, without consideration of any good conduct time 

defendant 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 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.

In determining the punishment in this case, you are instructed 

that you are not to discuss among yourselves how long the defendant 

will be required to serve any sentence you decide to impose. Such 

matters come within the exclusive jurisdiction of the Board of Pardons 

and Paroles and the Governor of the State of Texas.

[Emphasis added.]

After the jurors had begun deliberating, the presiding juror gave a note to the 

bailiff with three questions for the trial court that all concerned parole:

1) Does a life sentence mean no chance of parole?

2) Does 99 yrs mean a minimum of 30 yrs before parole opportunity is 

available?

3) Does 60 yrs mean a minimum of 30 yrs before parole opportunity is 

available?

The trial court read the questions to counsel and proposed the following response: 

“Ladies and gentlemen of the jury, in response to your question, you are instructed 

that you have before you all the law and the evidence allowed in the case. Please refer 
7

to the Court’s Charge and continue your deliberations.” After neither the prosecutor 

nor Appellant’s trial counsel had any objection to the proposed response, the bailiff 

gave the written response to the jurors.

The jury assessed Appellant’s punishment at life in the Institutional Division of 

the TDCJ for each case and the trial court sentenced Appellant accordingly. This 

appeal followed.

III. FAILURE TO TESTIFY

In his first issue, Appellant contends that his Sixth Amendment right to testify 

was violated because the record supports that he expressed a desire to testify, but his 

trial counsel did not call him as a witness. Appellant attempts to frame his challenge 

as implicating his Sixth Amendment defendant-autonomy rights recently explained by 

the United States Supreme Court in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The 

State responds that although Appellant did state at one point that he wanted to testify, 

the last on-the-record mention of the issue demonstrates that Appellant and his trial 

counsel were still discussing if Appellant was going to testify, so Appellant’s allegation 

is not confirmed by the record. Moreover, the State contends that a defendant’s 

complaint that his constitutional right to testify was violated is not analyzed under the 

McCoy framework, but is instead analyzed under the ineffective-assistance-of-counsel 

standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and that the 

record on direct appeal does not support an ineffective-assistance-of-counsel claim.
8

Because we conclude that the record on this direct appeal is inadequate to 

establish that Appellant’s right to testify was violated, we overrule Appellant’s first 

issue regardless of whether Strickland or McCoy controls.

A. The decision to testify is a constitutional right that is the defendant’s alone 

to make, and an allegation that the right has been violated has traditionally

been brought as an ineffective-assistance-of-counsel claim.

A criminal defendant has a constitutional right to testify in his defense, 

including during the punishment phase of the trial. Rock v. Arkansas, 483 U.S. 44, 52, 

107 S. Ct. 2704, 2709 (1987); Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 

2009); Pady v. State, 908 S.W.2d 65, 68 (Tex. App.—Houston [1st Dist.] 1995, no pet.). 

This right can be knowingly and voluntarily waived only by the defendant, not his 

counsel. Smith, 286 S.W.3d at 338 n.9.

2

In Johnson v. State, the court of criminal appeals decided that it is not the trial 

court but “defense counsel [who] shoulders the primary responsibility to inform the 

defendant of his right to testify, including the fact that the ultimate decision belongs 

to the defendant.” 169 S.W.3d 223, 235 (Tex. Crim. App. 2005). Thus, Johnson held 

that “Strickland provides the appropriate framework for addressing an allegation that 

the defendant’s right to testify was denied by defense counsel.” Id. Johnson further

 2

One commentator has explained that the lawyer disciplinary rules track with 

these constitutional entitlements and “provide that in the criminal defense context, a 

lawyer must abide by the client’s decisions about the plea to enter, whether to waive 

jury trial, and whether to testify.” W. Bradley Wendel, Autonomy Isn’t Everything: Some 

Cautionary Notes on McCoy v. Louisiana, 9 ST. MARY’S J. LEGAL MALPRACTICE & ETHICS

92, 98 (2018) (citing Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2018)).
9

held that because a complete denial of the right to testify at trial is not a structural 

defect but is the type of violation that can be subjected to a harm/prejudice inquiry, 

“the usual Strickland prejudice analysis applies: the defendant must show a reasonable 

probability that the outcome of the proceeding would have been different had his 

attorney not precluded him from testifying.” Id. at 239.

Therefore, since Johnson, Texas law has required that a defendant’s complaint 

that his right to testify was denied by his counsel be reviewed under an ineffectiveassistance-of-counsel framework, which requires a sufficient record to show both 

deficient performance and prejudice. See Carballo v. State, 303 S.W.3d 742, 751 (Tex. 

App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Johnson in recognizing that “the 

Court of Criminal Appeals has held that the Strickland ineffective assistance of counsel 

test provides the appropriate framework for addressing an allegation that the 

defendant’s right to testify was denied by his defense counsel”); Roberts v. State, No. 

08-12-00112-CR, 2014 WL 1513122, at *3 (Tex. App.—El Paso Apr. 16, 2014, no 

pet.) (not designated for publication) (“When a defense attorney prevents a defendant 

from testifying on his own behalf, we use the Strickland framework to address the 

allegation counsel was ineffective in allowing the defendant to exercise his right to 

testify.”).

An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v. 

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 
10

(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity 

to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 

593. If trial counsel did not have that opportunity, we should not conclude that 

counsel performed deficiently unless the challenged conduct was “so outrageous that 

no competent attorney would have engaged in it.” Nava v. State, 415 S.W.3d 289, 308

(Tex. Crim. App. 2013). Direct appeal is usually inadequate for raising an ineffectiveassistance-of-counsel claim because the record generally does not show counsel’s

reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at 592–93; 

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).

B. We need not decide whether McCoy or Turner establishes a new rule to 

review an alleged denial of the right to testify.

Appellant contends a new standard applies to a claimed denial of the right to 

testify because the court of criminal appeals disregarded the Strickland standard in 

Turner v. State, No. AP-76,580, 2018 WL 5932241 (Tex. Crim. App. Nov. 14, 2018), 

and thus overruled Johnson. Turner, he argues, adopted a standard derived from the 

United States Supreme Court’s holding in McCoy. According to Appellant, the court 

of criminal appeals now views a defendant’s failure to testify through the defendantautonomy prism of McCoy rather than the competence-of-counsel prism of Strickland

(and Johnson).3

 We cannot agree.

 3

The pivotal difference if Appellant is correct is that, unlike an ineffectiveassistance-of-counsel error under Johnson and Strickland, which is not considered a 

structural error and thus also requires a showing of harm to be reversible, a client-
11

Last year in McCoy, the United State Supreme Court reversed the defendant’s

conviction for capital murder and remanded the case when the defendant’s counsel 

conceded the defendant’s guilt against the defendant’s clear objections to the contrary.

138 S. Ct. at 1512. McCoy held that the Sixth Amendment guarantees to a defendant 

“the right to insist that counsel refrain from admitting guilt, even when counsel’s 

experience-based view is that confessing guilt offers the defendant the best chance to 

avoid the death penalty.” Id. at 1505. McCoy further stated, “When a client expressly 

asserts that the objective of ‘his defen[s]e’ is to maintain innocence of the charged 

criminal acts, his lawyer must abide by that objective and may not override it by 

conceding guilt.” Id. at 1509. McCoy explained that maintaining one’s innocence is an 

objective of representation and not merely an issue of trial tactics, so it is a decision 

reserved for the client, not the attorney. Id.

In Turner, the court of criminal appeals addressed a capital murder case with 

“striking” similarities to McCoy. 2018 WL 5932241, at *20. The similarities were that 

in both capital murder cases, the defendant’s trial counsel’s strategy was to concede 

that the defendant had killed the victims and argue that because the defendant was 

guilty of a lesser offense, he should not get the death penalty. Id.; see McCoy, 138 S. Ct. 

at 1506. The record supported that the defendant objected to this strategy because he 

 

autonomy error under McCoy and Turner would be considered structural, requiring no 

showing of harm and resulting in automatic reversal and remand for a new trial. See 

Turner, 2018 WL 5932241, at *21 (reversing and remanding for new trial when the 

appellant both preserved and established his McCoy claim).
12

maintained that he was innocent and that he did not want to concede killing the 

victims. Turner, 2018 WL 5932241, at *20; see McCoy, 138 S. Ct. at 1506. Therefore, 

Turner concluded that structural error had occurred because McCoy controlled, the 

appellant had preserved his McCoy claim, and McCoy was violated because the 

appellant had made it known repeatedly on the record of his desire not to concede 

that he had killed the victims but his counsel ignored his desire. 2018 WL 5932241, at 

*20. The error required reversal and remand for new trial. Id. at *21.

We conclude that neither McCoy nor Turner has implicitly overruled Johnson, and 

we see no implicit conflict between McCoy or Turner and Johnson.

4

C. Analysis

But, in any event, we need not resolve a question of a conflict between McCoy

or Turner and Johnson in order to resolve this appeal. The record in McCoy and Turner

clearly established that counsel acted contrary to the client’s wishes. The same is not 

true in this case. The record in our appeal does not tell us whether Appellant was 

actually deprived of his right to testify and if he was persuaded not to testify, what 

 4

But even assuming arguendo that McCoy and Turner conflict with Johnson, they 

still would not necessarily control. The instant case does not involve a defendant 

who, during the guilt/innocence phase of a capital murder trial, wanted to maintain 

his innocence and clearly objected to his counsel’s refusal to advance such a defense 

by conceding that the defendant had actually committed the charged offense. Cf.

Turner, 2018 WL 5932241, at *21; McCoy, 138 S. Ct. at 1509. Here, the supposed 

violation occurred during the punishment phase after Appellant had already entered a 

guilty plea and conceded guilt and without any on-the-record objection from 

Appellant. At this point, the court of criminal appeals has not applied the principles 

of McCoy to the right to testify in a noncapital case or in the procedural context of the 

instant case.
13

prompted his change of heart. If he were steadfast in his desire to testify, McCoy

might arguably apply. If he wavered in his desire to testify because of the advice of 

his counsel, Strickland might continue to apply.

Here, unlike several other cases where an appellant waited until appeal to 

express his or her desire to testify, there is some indication in our record that 

Appellant initially wanted to testify.

5

 When asked sua sponte by the trial court, 

Appellant stated that he wanted to testify. But there is also a follow-up discussion 

that reflects that Appellant and his counsel were still discussing the issue. And after 

that, the record is silent. The record we have to review does not establish the fact that 

is essential to Appellant’s claim—that he wished to testify on his own behalf and was 

prevented from doing so, or if talked out of doing so, the nature of the advice that 

prompted his decision.

Numerous cases support our conclusion that a record silent on the question of 

whether counsel’s actions frustrated a defendant’s desire to testify makes it impossible 

to resolve Appellant’s claim on direct appeal, no matter the standard we apply. See 

Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005) (“[A]ppellant’s assertions 

 5

See, e.g., Grumbles v. State, No. 05-13-00369-CR, 2014 WL 3907994, at *2 (Tex. 

App.—Dallas Aug. 12, 2014, no pet.) (mem. op., not designated for publication) 

(“Nor does the record contain . . . appellant’s complaint about not being called as a 

witness, or a ruling from the trial court denying him his right to testify.”); Rice v. State, 

No. 05-07-00704-CR, 2008 WL 3522243, at *3 (Tex. App.—Dallas Aug. 14, 2008, pet. 

ref’d) (not designated for publication) (“[Appellant’s] outbursts in the courtroom do 

not constitute testimony, and he never affirmatively stated he wished to take the stand 

to testify.”).
14

in his brief on appeal, in the absence of anything in the trial record, are insufficient to 

show that he asserted his right to testify and his attorney failed to protect it.”); Brown 

v. State, No. 08-12-00026-CR, 2014 WL 172521, at *5 (Tex. App.—El Paso Jan. 15, 

2014, pet. ref’d) (not designated for publication) (finding no deficient performance 

when “Appellant did not provide any affirmative evidence that his lawyer refused to 

let him testify”); Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *6 (Tex. 

App.—Dallas Aug. 19, 1998, pet. ref’d) (refusing to find deficient performance when 

the defendant did not testify after counsel initially told the jury that he would because 

the “ambiguity of the conclusions to be drawn from the record” about the 

defendant’s desire to testify required the reviewing court to engage in rank 

speculation). Again, even if McCoy applied to the deprivation of the right to testify, 

our record does not establish a deprivation of that right.

Moreover, the record is silent as to how the advice and actions of his counsel 

impacted Appellant’s desire or ability to testify, i.e., whether it was part of an agreed 

trial strategy, or a strategy pursued in disregard of Appellant’s wishes. With a silent 

record and applying a Strickland standard, we can find ineffective assistance of counsel 

only if the challenged conduct was “so outrageous that no competent attorney would 

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 

The failure to call a defendant or any witness to testify during a punishment trial is not 

on its face so outrageous that it represents deficient performance. See Brown, 2014 WL 

172521, at *5. Accordingly, the deficient-performance prong of Appellant’s 
15

ineffective-assistance-of-counsel claim cannot be sustained in this appeal’s posture.

See Esparza v. State, No. 08-12-00007-CR, 2014 WL 97301, at *7 (Tex. App.—El Paso 

Jan. 10, 2014, no pet.) (not designated for publication) (“The record shows that 

Appellant and his attorney spoke after the State rested its case, but based on the 

record, we do not know what advice Appellant received from his attorney about his 

right to testify. Moreover, there is nothing in the record demonstrating that Appellant 

was not allowed to testify or that he wanted to testify.”); Stuckwisch v. State, No. 08-16-

00098-CR, 2017 WL 3725811, at *6 (Tex. App.—El Paso Aug. 30, 2017, no pet.) (not 

designated for publication) (“[W]here the record is silent as to whether defense 

counsel advised a defendant to testify or not, . . . a claim of ineffectiveness under this 

theory has not been affirmatively demonstrated in the record and cannot be 

sustained.”).

Assuming that the prejudice prong of Strickland applies, Appellant has also 

failed to demonstrate the prejudice prong of his ineffective-assistance-of-counsel 

claim because he presents no argument or citations to the record to support what he 

would have testified about, or that had he testified, the outcome would have been 

different. See Dukes v. State, 486 S.W.3d 170, 182 (Tex. App.—Houston [1st Dist.] 

2016, no pet.) (op. on reh’g) (“[A] claim that trial counsel deprived the defendant of 

his right to testify must be supported by evidence in the record that the defendant 

would have testified, and of what the defendant would have said.”); Calderon v. State, 

No. 03-15-00442-CR, 2016 WL 3144175, at *2 (Tex. App.—Austin June 2, 2016, no 
16

pet.) (mem. op., not designated for publication) (overruling the appellant’s sole issue 

that her right to testify was violated because “there is no indication in the record that 

if counsel had questioned [the appellant] on the record regarding whether she was 

waiving her right to testify, she would have decided to exercise that right”); see also

Carballo, 303 S.W.3d at 751 (rejecting similar ineffective-assistance claim because “it is 

not possible to determine whether the result of the punishment proceeding would 

have been different if defense counsel had questioned appellant regarding his version 

of the events”).

Accordingly, we overrule Appellant’s first issue.

IV. CONSIDERING PAROLE IN JURY DELIBERATIONS

In his second issue, Appellant argues that the jury’s questions submitted to the 

trial court demonstrate that the jurors improperly considered parole during their 

deliberations. Although Appellant concedes that the trial court’s instruction was 

“accurate with regard to how parole eligibility is charged,” he contends that the jury’s 

questions demonstrated that they disregarded this instruction, so it was necessary for 

the trial court not only to refer back to the charge but also to provide additional 

“curative” instruction as well.

A. Applicable Law

A jury’s communications with the trial court are governed by article 36.27 of 

the code of criminal procedure, and we review a trial court’s responses for an abuse of 

discretion. See Tex. Code Crim. Proc. Ann. art. 36.27. Article 36.27 requires the trial 
17

court to answer communications from the jury and to give additional instructions on 

questions of law requested by the jury when the request is proper. Id. If the request is 

not proper, the trial court should so inform the jurors by referring them to the court’s 

charge. Id.; Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972).

“Under Texas law, parole is not a proper topic for jury deliberation.” Colburn v. 

State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998); see also Tex. Code Crim. Proc. Ann. 

art. 37.07, § 4. And, while the court of criminal appeals has recognized that a jury 

note regarding parole “suggests that jurors are ‘discussing’ and ‘considering’ parole,

. . . [n]ot every mention of parole . . . warrants a drastic remedy.” Colburn, 966 S.W.2d 

at 519. Therefore, to show that a jury’s discussion of the parole law constitutes 

reversible error, it must be shown that there was (1) a misstatement of the law, 

(2) asserted as a fact, (3) by one professing to know the law, (4) which is relied upon 

by other jurors, and (5) who for that reason changed their vote to a harsher 

punishment. Id. at 519–20; Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984).

B. Analysis

As an initial matter, Appellant has failed to preserve this alleged error because

his trial counsel did not object when the trial court read the proposed response to the 

jury’s note in open court and submitted the written response to the jury. See Diehl v. 

State, No. 04-07-00608-CR, 2008 WL 2260833, at *2 (Tex. App.—San Antonio June 

4, 2008, no pet.) (mem. op., not designated for publication) (“The record here does 

not demonstrate that Diehl objected to the trial court’s answers to the jury questions; 
18

therefore, he failed to preserve error.”); Saddler v. State, No. 01-95-00390-CR, 1996 

WL 111845, at *4 (Tex. App.—Houston [1st Dist.] Mar. 14, 1996, pet. ref’d) (not 

designated for publication) (“[A]n objection in the record or a bill of exception is 

necessary to preserve error concerning the trial court’s communications with the jury 

during its deliberation.” (citing Harris v. State, 736 S.W.2d 166, 166–67 (Tex. App.—

Houston [14th Dist.] 1987, no pet.))). Accordingly, nothing is presented for our 

review. See Diehl, 2008 WL 2260833, at *2.

Assuming arguendo that the complaint was preserved, we must consider whether 

the trial court erred. The jury note is some evidence that at some preliminary point in 

their deliberations the jury may have improperly considered or discussed parole. See 

Colburn, 966 S.W.2d at 519. We agree with the parties—including Appellant—that the 

jury charge accurately instructed the jurors not to consider how parole law may apply 

to Appellant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4. Therefore, the trial 

court’s response that the jurors had all of the available law and evidence and to refer 

back to the charge in continuing their deliberations was neither additional instruction 

nor error. See Fuentes v. State, No. 02-15-00356-CR, 2016 WL 6277369, at *6–7 (Tex. 

App.—Fort Worth Oct. 27, 2016, pet. ref’d) (mem. op., not designated for 

publication) (holding no error when trial court informed the jury that it could not 

respond to a question when the original charge had already correctly instructed the 

jurors on their question); Reidweg v. State, 981 S.W.2d 399, 402 (Tex. App.—San 

Antonio 1998, no pet.) (op. on reh’g) (explaining that a communication between the 
19

trial court and jury that violates Article 36.27 but “does not constitute an additional 

instruction by the court upon the law or some phase of the case . . . is not reversible 

error”).

Moreover, it is a rebuttable presumption that the jurors follow the trial court’s 

instructions in the manner presented. See Williams v. State, 937 S.W.2d 479, 490 (Tex. 

Crim. App. 1996) (holding the jury is presumed to follow the court’s instructions as 

given); Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). At best for 

Appellant, this record demonstrates that the jury had improperly considered parole at 

some preliminary point in deliberations. But the trial court’s response referred the 

jury to the trial court’s charge which had correctly instructed the jury not to consider 

parole regarding Appellant, so Appellant was required to set forth evidence to rebut 

the presumption that the jury followed the trial court’s instructions in response to the 

note.

Appellant has pointed to no evidence to rebut the presumption that the jury 

followed the trial court’s instruction by reviewing the charge and continuing their 

deliberations without considering how parole law may apply to Appellant. Indeed, 

Appellant did not file a motion for new trial alleging juror misconduct or obtain a 

hearing to adduce facts not in the record. See Colburn, 966 S.W.2d at 520.

Accordingly, we overrule Appellant’s second issue.
20

V. CONCLUSION

Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

/s/ Dabney Bassel

Dabney Bassel

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: March 7, 2019