OPINION
Opinion by
Justice CORNELIUS (Retired).
A jury convicted Alan Ray Rogers of aggravated assault and set his punishment, enhanced by a prior felony conviction, at sixty years’ confinement.
Rogers used a firearm to shoot at his former girlfriend at close range while she sat in her car. In a previous trial, Rogers was convicted of aggravated assault and received a life sentence. On appeal of that conviction, we affirmed Rogers’ conviction, but remanded the case for a new trial on punishment. See Rogers v. State, 38 S.W.3d 725 (Tex.App.-Texarkana 2001, pet. ref'd).
In the former appeal, we held that Rogers suffered egregious harm when the trial court failed to give the jury the charge required by Tex.Code CRim. Pkoc. Ann. art. 37.07, § 4 (Vernon Supp.2002), and then gave an incomplete response to the jury’s question asking how much time Rogers would spend in prison if it assessed a life sentence. Rogers v. State, 38 S.W.3d at 729-30. After the second punishment hearing, a jury assessed Rogers’ punishment at sixty years’ imprisonment.
In this appeal, Rogers contends the trial court violated his right to due process of law by charging the jury about the effect of good conduct time on his eligibility for early release. He contends the [781]*781charge is misleading because good conduct time mil not affect his eligibility for early release.
As it pertains to this issue, an inmate has two means of obtaining early release: parole and mandatory supervision. Because the judgment in this case contains an affirmative deadly weapon finding, Rogers is not eligible for parole until his actual calendar time served, without consideration of good conduct time, equals one-half of the maximum sentence or thirty calendar years, whichever is less. See Tex. Gov’t Code Ann. § 508.145(d) (Vernon Supp.2002). Therefore, any good conduct time Rogers earns will not accelerate the date on which he is eligible for parole.
Release on mandatory supervision, when permitted by law, is generally allowed when the amount of calendar time an inmate serves plus the amount of good conduct time the inmate earns equals the sentence imposed. Tex. Gov’t Code Ann. § 508.147(a) (Vernon 1998). However, Rogers is not eligible for early release under mandatory supervision procedures because the judgment contains an affirmative deadly weapon finding. See Tex. Gov’t Code Ann. § 508.149(a)(1) (Vernon Supp. 2002). Therefore, good conduct time will not affect Rogers’ eligibility for early release to mandatory supervision.
The jury was given a charge similar to the mandatory charge required by Article 37.07, § 4(a). The actual charge given to the jury reads as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
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. 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.
The charge required by Article 37.07, § 4(a) reads as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be [782]*782imprisoned 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, 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 he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. 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.
There are these differences between the statutorily prescribed version of the charge and the version given in this case: (1) In paragraph one of the statutory version, the charge uses the phrase “period of incarceration imposed,” where in the charge given in this case, the words “sentence imposed” are used; (2) In paragraph three of the statutory charge, there is this language: “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....” Instead of this language, the charge in this case says simply, “The defendant will not become eligible for parole until....”; (3) The statutory charge contains this language, which is omitted entirely from the charge in this case: “without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole.”
We find that these differences in the charge given here are not significant or harmful and that the charge as given by the trial court substantially complies with Article 37.07, § 4(a). The difference set out in (1) above does not constitute an error. The phrases “period of incarceration imposed” and “sentence imposed” are substantially the same.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
Opinion by
Justice CORNELIUS (Retired).
A jury convicted Alan Ray Rogers of aggravated assault and set his punishment, enhanced by a prior felony conviction, at sixty years’ confinement.
Rogers used a firearm to shoot at his former girlfriend at close range while she sat in her car. In a previous trial, Rogers was convicted of aggravated assault and received a life sentence. On appeal of that conviction, we affirmed Rogers’ conviction, but remanded the case for a new trial on punishment. See Rogers v. State, 38 S.W.3d 725 (Tex.App.-Texarkana 2001, pet. ref'd).
In the former appeal, we held that Rogers suffered egregious harm when the trial court failed to give the jury the charge required by Tex.Code CRim. Pkoc. Ann. art. 37.07, § 4 (Vernon Supp.2002), and then gave an incomplete response to the jury’s question asking how much time Rogers would spend in prison if it assessed a life sentence. Rogers v. State, 38 S.W.3d at 729-30. After the second punishment hearing, a jury assessed Rogers’ punishment at sixty years’ imprisonment.
In this appeal, Rogers contends the trial court violated his right to due process of law by charging the jury about the effect of good conduct time on his eligibility for early release. He contends the [781]*781charge is misleading because good conduct time mil not affect his eligibility for early release.
As it pertains to this issue, an inmate has two means of obtaining early release: parole and mandatory supervision. Because the judgment in this case contains an affirmative deadly weapon finding, Rogers is not eligible for parole until his actual calendar time served, without consideration of good conduct time, equals one-half of the maximum sentence or thirty calendar years, whichever is less. See Tex. Gov’t Code Ann. § 508.145(d) (Vernon Supp.2002). Therefore, any good conduct time Rogers earns will not accelerate the date on which he is eligible for parole.
Release on mandatory supervision, when permitted by law, is generally allowed when the amount of calendar time an inmate serves plus the amount of good conduct time the inmate earns equals the sentence imposed. Tex. Gov’t Code Ann. § 508.147(a) (Vernon 1998). However, Rogers is not eligible for early release under mandatory supervision procedures because the judgment contains an affirmative deadly weapon finding. See Tex. Gov’t Code Ann. § 508.149(a)(1) (Vernon Supp. 2002). Therefore, good conduct time will not affect Rogers’ eligibility for early release to mandatory supervision.
The jury was given a charge similar to the mandatory charge required by Article 37.07, § 4(a). The actual charge given to the jury reads as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
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. 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.
The charge required by Article 37.07, § 4(a) reads as follows:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be [782]*782imprisoned 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, 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 he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. 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.
There are these differences between the statutorily prescribed version of the charge and the version given in this case: (1) In paragraph one of the statutory version, the charge uses the phrase “period of incarceration imposed,” where in the charge given in this case, the words “sentence imposed” are used; (2) In paragraph three of the statutory charge, there is this language: “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....” Instead of this language, the charge in this case says simply, “The defendant will not become eligible for parole until....”; (3) The statutory charge contains this language, which is omitted entirely from the charge in this case: “without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole.”
We find that these differences in the charge given here are not significant or harmful and that the charge as given by the trial court substantially complies with Article 37.07, § 4(a). The difference set out in (1) above does not constitute an error. The phrases “period of incarceration imposed” and “sentence imposed” are substantially the same. We note that it is the period of incarceration or the sentence “imposed” that is mentioned in the charges, not that “served.”
The language in (2) above that is omitted from the charge in this case is actually surplusage, and would have added nothing to the charge, because Rogers was not eligible to use good time credit for early release. Moreover, Rogers was not eligible for community supervision, so the jury was required to give him a term of imprisonment.
Likewise, the omitted language set out in (3) above was unnecessary in this case and would only have misled the jury, because Rogers could not use good conduct time for early release and it was impossible for him to receive punishment of less than four years. See Tex. Pen.Code Ann. § 12.32 (Vernon 1994).
If it was error for the trial court to make these changes, and we think it was not, the error certainly did not harm Rogers. Moreover, Rogers does not complain of these differences between the required charge and the charge actually given in this case, but only that the charge given denied him due process.
[783]*783Rogers’ actual complaint on appeal is that the charge required by Article 37.07, § 4(a) denied him due process because he is not eligible for good conduct time. The same contention has been rejected by numerous courts, including this one. See Luquis v. State, 72 S.W.3d 355, 361 (Tex.Crim.App.2002); Muhammad v. State, 830 S.W.2d 953, 956 (Tex.Crim.App.1992); Oakley v. State, 830 S.W.2d 107, 111-12 (Tex.Crim.App.1992); Bui v. State, 68 S.W.3d 830, 841 (Tex.App-Houston [1st Dist.] 2002, no pet.); Washington v. State, 59 S.W.3d 260 (Tex.App.-Texarkana 2001, pet. ref'd); Donoho v. State, 39 S.W.3d 324, 331-32 (Tex.App.-Fort Worth 2001, pet. ref'd); Espinosa v. State, 29 S.W.3d 257, 261-62 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Cagle v. State, 23 S.W.3d 590, 594 (Tex.App.-Fort Worth 2000, pet. ref'd); Edwards v. State, 10 S.W.3d 699, 705 (Tex.App.-Houston [14th Dist.] 1999), pet. dism’d, improvidently granted, 67 S.W.3d 228 (Tex.Crim.App.2002) (per curiam).
Moreover, even if the jury improperly considered when Rogers would be eligible for parole in assessing his punishment, Rogers encouraged it to do so in his final argument:
What kind of sentence? I don’t know. The D.A. told you he wants life. [Rogers is] forty years old. The jury charge tells you he’s going to have to serve— he’s got to serve absolutely half of what he gets. Not that he gets out then, but he’s got to serve half or thirty years at the most before he can even come up for parole. He’s 40. What do you give him? Fifteen, twenty years? Twenty years, he’ll be fifty before he comes up for parole.
Therefore, even if the jury did consider when Rogers would be eligible for parole in assessing his punishment, Rogers may not complain of an error he encouraged the jury to make.
The judgment is affirmed.
Concurring Opinion by Justice Ross.
Dissenting Opinion by Justice Grant.