Derory Dewayne Colbert v. State

• Court: Court of Appeals of Texas
• Decided: August 29, 2003
• Docket: 13-00-00404-CR
• Status: Published

Opinion

r00403.cp1

NUMBERS 13-00-403-CR & 13-00-404-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DERORY DEWAYNE COLBERT, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 4th District Court of Dallas County, Texas.

MEMORANDUM OPINION ON REMAND

Before Chief Justice Valdez and Justices Yañez and Castillo

Opinion by Justice Yañez

In our original opinion in this case, issued on August 31, 2001, we reversed appellant's convictions, holding that the trial court committed reversible error by including a Geesa instruction ⁽¹⁾ in the jury charge. See Colbert v. State, 56 S.W.3d 857, 860 (Tex. App.-Corpus Christi 2001), rev'd, 108 S.W.3d 316 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals reversed our judgment and remanded the case to us for consideration of appellant's remaining point of error. See Colbert, 108 S.W.3d at 316. We affirm.

In his remaining point of error, appellant contends that the trial court erred by including in its charge the mandatory language of article 37.07, section 4(a) of the code of criminal procedure, informing the jury of the existence and mechanics of parole law and good-conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon Supp. 2003). Appellant admits he did not object to the instruction because such an objection would have been overruled on the basis that the instruction was statutorily required. Appellant nonetheless argues that the instruction is "a sham" because the jury is told how the parole law will be applied to a particular defendant, but also told that it may not consider the law in assessing the sentence. We reject appellant's argument.

The instruction informing the jury of the existence and mechanics of parole law and good-conduct time is mandatory. See id. The charge is universally applicable to all non-capital felonies listed in article 42.12, section 3g(a)(1) of the Texas Code of Criminal Procedure. Id.; see Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a) (Vernon Supp. 2003). It is undisputed that appellant was found guilty of offenses listed in article 42.12, section 3g(a), and the instruction was therefore required. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a) (Vernon Supp. 2003).

We hold that the trial court was bound to comply with the mandatory instruction required by article 37.07, section 4(a). Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon Supp. 2003). Accordingly, it did not err in submitting the instruction.

We overrule appellant's sole remaining point of error and AFFIRM the trial court's judgment.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Opinion delivered and filed this the

29^th day of August, 2003.

1.

See Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).