NUMBER 13-23-00094-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GABRIEL LOUIS CASTELLANO JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Tijerina
Appellant Gabriel Louis Castellano Jr. appeals his convictions of manufacture and
delivery of a controlled substance in Penalty Group 1 (heroin) greater than or equal to
four grams but less than 200 grams (count one), a first-degree felony, see TEX. HEALTH &
SAFETY CODE ANN. § 481.112(d), and assault of a family member by impeding breath or circulation (count two), a third-degree felony. 1 See TEX. PENAL CODE ANN. § 22.01.
Appellant received a sentence of sixty-years’ confinement for count one and seventy-
years for count two. By three issues, appellant contends that (1) his trial counsel rendered
ineffective assistance; (2) the trial court abused its discretion in overruling his objection
to the State’s rebuttal argument; and (3) he was egregiously harmed by an erroneous
parole instruction in the punishment charge. We affirm.
I. BACKGROUND
Mystikal Kelly, appellant’s former girlfriend, testified that on November 5, 2021,
she and appellant had an argument at her home, and he pushed her into the bedroom.
Kelly testified that once in the bedroom, appellant continued to push her, and he knocked
her to the ground, while the couple yelled and argued. Kelly said that appellant dragged
her to the bathroom and wrapped his arm around her using it as a lock in an “L shape,”
which she described as a “choke hold.” According to Kelly, she was unable to breathe.
Margarita Kelly, Kelly’s mother, testified that she witnessed appellant push Kelly into the
bedroom and that it sounded as if appellant was trying to kill Kelly. Margarita feared for
Kelly’s safety, and she called 911.
Victoria Police Department officer, Trenton Ballard, testified that he responded to
the 911 dispatch, and when he arrived at the home, he encountered Margarita, who was
distressed and concerned about Kelly’s safety. Officer Ballard stated that he heard yelling
1 Punishments for both counts were enhanced by appellant’s plea of true to two enhancement
paragraphs. Thus, after finding appellant guilty, the jury was instructed to sentence him for not more than a life sentence or ninety-nine years’ confinement or less than twenty-five years. See TEX. PENAL CODE ANN. § 12.42(d) (enhancing the punishment of a felony offense other than a state jail felony when the defendant has previously been convicted of two prior felonies to “imprisonment . . . for life, or for any term of not more than 99 years or less than 25 years”).
2 and something “being thrown or somebody being hit . . . .” Officer Ballard went to the
bedroom, and he testified that he saw appellant walk out of the bathroom followed by
Kelly. Officer Ballard placed appellant in handcuffs, and he observed “quite a bit” of a
green, leafy substance that he identified as marihuana all over the bedroom and on the
floor. Additionally, Officer Ballard saw several ten-gallon totes containing marihuana, and
he observed stems of “weed plants” that were hanging. Officer Ballard testified that Kelly
told him that appellant had choked her and that he observed redness around her neck.
Detective Timothy Ramirez with the Victoria Police Department testified that he
was later dispatched to the residence due to the large quantity of marihuana. Detective
Ramirez’s partner acquired a search warrant, and they searched the residence and found
a safe. Detective Ramirez stated that Kelly and Margarita denied having a key or
combination to open the safe, so the officers pried it open. According to Detective
Ramirez, the safe contained several coins, numerous multicolored pills that Detective
Ramirez recognized as ecstasy, and a large amount of a brown substance that Detective
Ramirez recognized as heroin, which he claimed weighed 12.42 grams. Additionally, the
safe had appellant’s social security card and $2,056 in cash. Subsequently, the trial court
admitted a certificate of analysis stating that the heroin tested weighed 4.59 grams.
Detective Ramirez read from the certificate at trial. The forensic scientist who tested the
heroin did not appear at trial.
The jury found appellant guilty of both counts, and this appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his first issue, appellant contends that his trial counsel was ineffective because
3 he did not object to several instances of hearsay.
A. Standard of Review and Applicable Law
Claims of ineffective assistance of counsel are evaluated under the two-part test
articulated by the United States Supreme Court in Strickland v. Washington. See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). First, appellant must show that counsel’s performance was deficient,
or in other words, that counsel’s assistance fell below an objective standard of
reasonableness. Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 687. Then
appellant must show that there is a reasonable probability that, but for counsel’s errors,
the result would have been different. Thompson, 9 S.W.3d at 812; see Strickland, 466
U.S. at 694.
It is appellant’s burden to prove counsel was ineffective by a preponderance of the
evidence, and we review counsel’s performance by the totality of the representation, not
by isolated acts or omissions. Thompson, 9 S.W.3d at 812, 813. “[T]rial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced as
ineffective.” Goodspeed, 187 S.W.3d at 392. “Absent such an opportunity, an appellate
court should not find deficient performance unless the challenged conduct was so
outrageous that no competent attorney would have engaged in it.” Id. Appellant must
overcome the strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance and that his actions could be considered sound trial
strategy. See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex.
4 App.—Corpus Christi–Edinburg 2006, no pet.). We do not second-guess legitimate
tactical or strategic decisions made by trial counsel. State v. Morales, 253 S.W.3d 686,
696 (Tex. Crim. App. 2008). An allegation of ineffectiveness must be “firmly founded in
the record.” Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting
Thompson, 9 S.W.3d at 813–14).
“Hearsay” is an out-of-court statement offered to prove the truth of the matter
asserted. TEX. R. EVID. 801(d). Hearsay is generally inadmissible, TEX. R. EVID. 802, but
there are several exceptions to the rule. See TEX. R. EVID. 803, 804. “The hearsay
doctrine . . . is designed to exclude out-of-court statements offered for the truth of the
matter asserted that pose any of the four ‘hearsay dangers’ of faulty perception, faulty
memory, accidental miscommunication, or insincerity.” Alcala v. State, 476 S.W.3d 1, 21
(Tex. App.—Corpus Christi–Edinburg 2013, pet. ref’d) (internal citations omitted).
B. Detective Ramirez
Appellant first faults his trial counsel for not objecting to Detective Ramirez’s
testimony that the substance found in the safe was heroin and that it weighed 12.42
grams.2 The record is silent regarding trial counsel’s reason for failing to object to the
complained-of statements. And we cannot say that counsel’s action was so outrageous
2 By what we construe as a sub-issue to his first issue, appellant argues that his trial counsel should
have objected to the admission of the “Certificate of Analysis” from Jessica Jackson, the forensic scientist who tested the substance, and instead should have asserted his “Sixth Amendment right to confrontation and demand that Jackson testify at trial.” However, appellant does not provide citation to pertinent authority with a clear and concise argument supporting a conclusion that his trial counsel’s failure to “demand” that Jackson testify constituted ineffective assistance of counsel. Moreover, the record is silent regarding counsel’s reason for not doing so. See Lopez v. State, 343 S.W.3d 137, 144 (Tex. Crim. App. 2011) (concluding that because the record was silent regarding trial counsel’s reasons for failing to object to outcry-witness testimony that could have easily been produced by a hearing on a motion for new trial, the appellant failed to meet his burden under the first prong of Strickland). Accordingly, we overrule this sub- issue.
5 that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at
392. Therefore, appellant has not overcome the strong presumption that trial counsel’s
conduct fell within the wide range of reasonable professional assistance and that trial
counsel’s actions could be considered sound trial strategy. See Strickland, 466 U.S. at
689; Jaynes, 216 S.W.3d at 851; see also Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.
Crim. App. 2001) (explaining that “the bare record does not reveal the nuances of trial
strategy” and recognizing that concluding trial counsel was ineffective by failing to request
a limiting instruction based on a silent record “would call for speculation and such
speculation is beyond the purview” of an appellate court).
In any event, “[t]o establish ineffective assistance of counsel based on a failure to
object, appellant must demonstrate that the trial court would have committed harmful error
in overruling the objection had trial counsel objected.” Toledo v. State, 519 S.W.3d 273,
287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). At first glance, it appears appellant
appears to argue that Detective Ramirez’s testimony is hearsay because he relied on
information contained in the certificate of analysis stating there was 4.59 grams of heroin.
Article 38.41 states that
[a] certificate of analysis that complies with this article is admissible in evidence on behalf of the state or the defendant to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court.
TEX. CODE CRIM. PROC. ANN. art. 38.41. An objection on the basis of hearsay to Detective
Ramirez’s reliance on the certificate of analysis that the substance was heroin would not
have been sustained by the trial court because the certificate of analysis was admissible
6 pursuant to article 38.41. Further, appellant provides no authority stating that despite
article 38.41, the information contained in the analysis is inadmissible hearsay, and we
find none. See Toledo, 519 S.W.3d at 287. Next, as to Detective Ramirez’s statement
that the heroin weighed 12.42 grams, appellant has not explained how the trial court
would have erred by overruling a hearsay objection to this statement. Moreover, appellant
does not explain why but for his trial counsel’s alleged error in not objecting to the
complained-of statement, there is a reasonable probability that he would have been
acquitted of the offense when the certificate of analysis indicated there was over four
grams of heroin, thereby satisfying the weight element of the offense. See id.; see also
TEX. HEALTH AND SAFETY CODE ANN. § 481.112(d).
Next, appellant argues that his trial counsel should have objected on the basis of
hearsay when Detective Ramirez testified that he had to break into the safe because Kelly
and Margarita did not know the combination or have a key. Specifically, Detective
Ramirez said, “[he had talked] to both Margarita and [Kelly], and neither one of them had
the code or the keys to the safe.” Prior to Detective Ramirez’s testimony, Margarita
testified that there were two safes in the home, and she did not know the combinations
and did not know their locations. Kelly later testified that she was aware of the safe that
contained the heroin, but she did not know the combination and she did not have any
personal items in it. She said, “I didn’t know what was in the safes. I didn’t have access
to those.”
Because Margarita and Kelly testified that each lacked access to the safe,
appellant cannot show how he was harmed by Detective Ramirez’s statement to the same
7 effect. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that the
erroneous admission of evidence is harmless when that same evidence is later admitted
without objection). Therefore, appellant has failed to meet the second prong of Strickland.
See Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694.
Next, appellant complains that his trial counsel failed to object to the following
testimony by Detective Ramirez:
It’s my understanding after speaking with crime scene personnel, who have contact with the Corpus Christi lab almost on a daily basis, that the lab will only test up to the next penalty range, and then they don’t analyze anymore of the drugs, so in this instance for the PG-1 charge, you have less than one gram. And you have one to four grams and then you have four to 200 grams, so they test up to the four grams to get it to that penalty range.
....
Ramirez repeated crime-scene personnel repeating DPS lab staff, and the statement was offered for the truth of the matter asserted: namely, that DPS’s analysis is informed by drug penalty ranges. This testimony was clearly hearsay within hearsay and inadmissible.
The record is silent regarding trial counsel’s reason for failing to object to the
complained-of statements, and he has not provided any explanation as to how his trial
counsel’s performance could not be considered sound trial strategy. Moreover, counsel’s
actions were not so outrageous that no competent attorney could have engaged in them.
Therefore, appellant has not overcome the strong presumption that trial counsel’s conduct
fell within the wide range of reasonable professional assistance and that trial counsel’s
actions could be considered sound trial strategy. See Strickland, 466 U.S. at 689;
Goodspeed, 187 S.W.3d at 392; Jaynes, 216 S.W.3d at 851; see also Ex parte Varelas,
45 S.W.3d at 632. Moreover, without more, we are unable to conclude that but for
8 appellant’s trial counsel’s failure to object to the above testimony, there is a reasonable
probability appellant would have been acquitted of the offense. See Thompson, 9 S.W.3d
at 812; see Strickland, 466 U.S. at 694.
C. Margarita
Next, appellant argues that his trial counsel should have objected on the basis of
hearsay when Margarita testified that Kelly told her that appellant “pulled her out of the
bed by her hair, and then when she was pregnant, he kicked her in the stomach.”
Again, the record is silent regarding trial counsel’s reason for failing to object to the
complained-of statements, and counsel’s actions were not so outrageous that no
competent attorney could have engaged in them. It is possible that trial counsel may have
not wanted to call more attention to other instances of abuse by objecting. See Webb v.
State, 995 S.W.2d 295, 301 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“[T]rial
counsel may have purposely decided not to request a limiting instruction to prevent further
attention being drawn to the extraneous offenses.”). Therefore, appellant has not
overcome the strong presumption that trial counsel’s conduct fell within the wide range of
reasonable professional assistance and that trial counsel’s actions could be considered
sound trial strategy. See Strickland, 466 U.S. at 689; Goodspeed, 187 S.W.3d at 392;
Jaynes, 216 S.W.3d at 851; see also Ex parte Varelas, 45 S.W.3d at 632.
Moreover, Kelly testified that on the Fourth of July, appellant “became violent,” hit
her in the car, “stopped the car in the middle of the road, pushed [her] out of the car[,] and
left [her] there.” She said that appellant arrived home from work, and he “drug [her] out of
bed by [her] hair and started hitting on [her].” According to Kelly, in December of 2020,
9 appellant “drug” her “out of bed . . . started beating [her], hitting [her] in [her] face and in
[her] back and started kicking [her] when [she] was down.” Kelly said, “I was trying to get
up and like try to get help, and I like finally got up, and my daughter came out, and she
seen him throw me to the ground, and she was crying and (weeping) . . . and he just didn’t
care, and then I called the cops.” Kelly testified that in 2020 she became pregnant with
appellant’s child, and during the pregnancy he was “distant, mean, abusive.” Kelly stated
that appellant physically assaulted her one time when she was pregnant. She said, “We
had an argument, and he started pushing on me, and he threw me to the ground, and
then we—I was trying to get up, and he backed me into the wall, and he kicked me in my
stomach (weeping).” Finally, Kelly testified that on November 5, 2021, appellant pushed
her into the bedroom in front of her children, threw her to the ground, prevented her from
getting up from the floor, pulled her to the bathroom, and wrapped his arm “around her
neck” in a choke hold, which prevented her from breathing. Kelly not only testified about
the incident that occurred when she was pregnant, she also stated that appellant had
committed the charged offense, among other offenses.
Accordingly, because Kelly testified that appellant committed many instances of
assault against her, including testifying about the incident that Margarita had previously
related, appellant has failed to show that the trial court would have committed reversible
error in overruling a hearsay objection to Margarita’s testimony. See Leday, 983 S.W.2d
at 718. Additionally, we cannot conclude that but for appellant’s trial counsel’s failure to
object to the complained-of testimony, there is a reasonable probability appellant would
have been acquitted as the same evidence was admitted without objection elsewhere.
10 See Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694; see also Leday v.
State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (“‘It is well established that the
improper admission of evidence does not constitute reversible error if the same facts are
shown by other evidence which is not challenged.’”). We overrule appellant’s first issue.
III. CLOSING ARGUMENT
By his second issue, appellant contends that the trial court abused its discretion in
overruling his objection to the State’s closing argument during the guilt/innocence phase
of trial. Specifically, appellant argues that the State mischaracterized his closing argument
during its rebuttal by attacking a straw man. Appellant explains that during his closing
argument, he “urged the jury that [Kelly] was not a credible witness,” but he “never
argued . . . that black eyes allegedly inflicted by [appellant] on a prior occasion were in
fact caused by running makeup.”
An appellate court reviews a trial court's ruling on an objection to improper jury
argument for abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). Permissible jury argument generally falls into one of four areas: (1) summation of
the evidence, (2) reasonable deduction from the evidence, (3) an answer to the argument
of opposing counsel, or (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798,
821 (Tex. Crim. App. 2010).
B. Analysis
During closing argument, the State said, “There’s clear bruising on [Kelly’s] eye. I
have a picture up here from the body camera. You’ll be able to see it. It’s not mascara
11 running. That is wild.” Appellant’s trial counsel objected, stating, “I never said that . . . . I
didn’t say she had mascara running.” On appeal, the State responds that it was not error
for the trial court to overrule appellant’s objection because during the trial, appellant asked
Detective Ramirez, “[Y]ou do remember she had two black eyes; right?” Detective
Ramirez replied, “Yes, sir.” Appellant asked, “And she is crying, and part of her mascara
is running?” Detective Ramirez said, “I don’t know about the mascara, sir.”
We will assume for purposes of our analysis that the State’s argument was
improper, and the trial court erred in overruling appellant’s objection to it. See id. at 572.
Accordingly, we will next determine whether appellant suffered harm. See Martinez v.
State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000).
“Improper jury argument is generally non-constitutional error.” Id. Non-
constitutional error that does not affect substantial rights must be disregarded. Brown v.
State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Errors that affect a defendant’s
substantial rights “are those that affect the very basis of the case, deprive the defendant
of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly
and significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App.
2011). Whether an improper argument affects substantial rights depends on the (1)
severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty
of conviction and sentence absent the misconduct. Martinez, 17 S.W.3d at 692–93.
“Further, in evaluating the severity of the misconduct, we must assess ‘whether [the] jury
argument is extreme or manifestly improper [by] look[ing] at the entire record of final
arguments to determine if there was a willful and calculated effort on the part of the State
12 to deprive appellant of a fair and impartial trial.’” Brown, 270 S.W.3d at 573.
Although no curative instruction was requested or given, we cannot say that the
comment made by the State was severe because during the trial, appellant asked
Detective Ramirez to opine on whether part of the discoloration of Kelly’s eyes could have
been due to mascara running. The State was attempting to show the jury that it should
believe Kelly when she said that the picture showed that she had two black eyes and not
believe appellant’s suggestion or implication that the discoloration was due to running
mascara. See Martinez, 17 S.W.3d at 693 (determining that “[t]he prosecutor’s comment
that the victims . . . cry out for the death penalty” was mild). Thus, looking at the entire
record, we cannot conclude that under these circumstances that there was a willful and
calculated effort by the State to deprive appellant of a fair and impartial trial. This factor
weighs in favor of finding that appellant’s substantial rights were not severely prejudiced.
See id.
Finally, regarding the certainty of conviction absent the misconduct, we note that
the State was not required to prove that appellant caused Kelly’s black eyes in order to
convict appellant of count two. Instead, the State had to prove that appellant committed
assault by impeding Kelly’s breath or circulation by intentionally, knowingly, or recklessly
causing bodily injury to Kelly and that Kelly was appellant’s family or household member.
See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(B). Kelly testified that appellant lived with
her, they were in a romantic relationship, appellant choked her on November 5, 2021, she
was unable to breathe, and she felt pain. Additionally, Officer Ballard testified that on
November 5, 2021, he observed that Kelly had what appeared to be red marks on her
13 neck indicating that someone had strangled her. Officer Ballard stated Kelly told him that
appellant had choked her causing her pain and the inability to breath. Thus, this factor
also weighs in favor of finding that appellant’s substantial rights were not affected by the
State’s comment.
Therefore, we conclude that appellant’s substantial rights were not affected by the
trial court’s error in denying his objection to the State’s comment after examining (1) the
severity of the misconduct, (2) curative measures, and (3) the certainty of conviction and
sentence absent the misconduct. See Martinez, 17 S.W.3d at 692–93. We overrule
appellant’s second issue.
IV. PUNISHMENT JURY CHARGE
By his third issue, appellant contends that the jury charge on punishment included
an erroneous parole instruction that was egregiously harmful. The complained-of jury
instruction states:
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-fourth of the sentence imposed, without consideration of any good conduct time he may earn. Eligibility for parole does not guarantee that parole will be granted.
Appellant argues that, contrary to the instruction above, he “will be eligible for
release on parole when his actual calendar time served plus good conduct time equals
one-fourth of his sentence or fifteen years, whichever is less.” See TEX. GOV’T CODE ANN.
§ 508.145(f). Therefore, according to appellant, the above instruction is erroneous
because it states that he “will be eligible for parole when his time served equals one-
quarter of his sentence, period,” and it omits “or fifteen years, whichever is less.” The
14 State responds that, even assuming there was error in the charge, the error did not cause
egregious harm to appellant. For purposes of our analysis, we presume that the omission
of the “or 15 years, whichever is less” language in the jury charge constituted error, and
we will thus determine whether the purported charge error constituted egregious harm
under Almanza. See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984).
At the charge conference, appellant did not voice the specific jury-error complaint
that he asserts on appeal. Therefore, any reversal based on the alleged charge error
requires a showing of egregious harm. See Cosio v. State, 353 S.W.3d 766, 777 (Tex.
Crim. App. 2011).
In our egregious-harm analysis, we must examine the entire record to determine
whether the defendant suffered actual rather than theoretical harm. Marshall v. State, 479
S.W.3d 840, 843 (Tex. Crim. App. 2016). For actual harm to be established, the charge
error must have affected “the very basis of the case,” “deprive[d] the defendant of a
valuable right,” or “vitally affect[ed] a defensive theory.” Olivas v. State, 202 S.W.3d 137,
144 (Tex. Crim. App. 2006) (first quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.
App. 1996) and then quoting Almanza, 686 S.W.2d at 172)). When assessing harm based
on the particular facts of the case, we consider: (1) the entire jury charge; (2) the state of
the evidence; (3) the parties’ arguments; and (4) all other relevant information in the
record. Marshall, 479 S.W.3d at 843.
As to count one, although the charge included that appellant would be eligible for
parole when he served one-fourth of his sentence, it omitted “or fifteen years, whichever
is less.” In other words, the charge failed to tell the jury that appellant would be eligible
15 for parole if he either (1) served one-fourth of his sentence or (2) served fifteen years of
his sentence depending on which amount was less. However, it is irrelevant that the
charge omitted from its instruction the language “or fifteen years, whichever is less”
because one-fourth of sixty years is fifteen years. In other words, appellant is unable to
demonstrate that any harm came from the exclusion of the “or 15 years, whichever is
less” language in the trial court’s instruction because one-fourth of the sentence imposed
in this case is equal to fifteen years. See Waters v. State, 743 S.W.2d 753, 757 (Tex.
App.—San Antonio 1987, no pet.) (explaining that the record did not reflect that the
charge’s omission of “or twenty years, whichever is less . . . [a]ffected the sentence, and
was therefore harmless”); see also Maxie v. State, No. 06-12-00140-CR, 2013 WL
839144, at *4 (Tex. App.—Texarkana Mar. 6, 2013, no pet.) (mem. op., not designated
for publication) (providing that additional language stating “15 years, whichever is
less . . . is unnecessary because one-fourth of any second[-] or third[-]degree sentence
will necessarily be less than fifteen years”). This mitigates against finding egregious harm.
The charge informed the jury that appellant may be entitled to the good conduct
time and that his sentence “might be reduced by the award of parole.”3 The charge said,
“Eligibility for parole does not guarantee that parole will be granted” and that “[i]t cannot
be accurately predicted how the parole law and good conduct time might be applied” to
appellant “because the application of these laws will depend on decisions made by prison
3 Article 37.07, Section 4(a) of the Code of Criminal Procedure was amended in 2019 and no longer
refers to good-conduct time. See TEX CODE CRIM. PROC. ANN. art. 37.07, § 4(a). Instead, the current version of Section 4(a) refers only to parole. See id. This amendment applies to a defendant sentenced for an offense on or after the effective date of September 1, 2019, regardless of when the offense was committed. See Act of May 15, 2019, 86th Leg., R.S., ch. 260, § 2, 2019 Tex. Sess. Law Serv. 446, 448.
16 and parole authorities.” Finally, the charge stated the following: “You may consider the
existence of the parole law and good conduct time. . . . You are not to consider the
manner in which the parole law may be applied to [appellant].” Thus, “the parole
instruction contained the standard curative language admonishing the jury not to consider
the extent to which the parole law might be applied to the defendant.” Igo v. State, 210
S.W.3d 645, 647 (Tex. Crim. App. 2006); see also McGee v. State, No. 11-13-00124-CR,
2015 WL 3799362, at *7 (Tex. App.—Eastland June 11, 2015, no pet.) (mem. op., not
designated for publication) (“These instructions were mitigating and curative of the
erroneous instructions because they instructed the jury that one cannot predict how
parole law and good conduct time might be applied to [the defendant].”); Jones v. State,
No. 11-10-00373-CR, 2012 WL 3537809, at *2 (Tex. App.—Eastland Aug. 16, 2012, pet.
ref’d) (mem. op., not designated for publication) (“[T]he jury charge contained the
standard curative language admonishing the jury not to consider the extent to which
parole law might be applied to appellant, and there was no indication that the jury did not
follow those instructions.”). “It is presumed that the jury followed the instruction given by
the trial judge to the jury, giving no consideration to parole.” Underwood v. State, 927
S.W.2d 661, 663 (Tex. App.—Texarkana 1996, no pet.). Nothing in the record indicates
otherwise. See id. Accordingly, we conclude that this factor mitigates against finding
egregious harm. See id.; see also Shavers v. State, 985 S.W.2d 284, 292 (Tex. App.—
Beaumont 1999, pet. ref’d) (presuming that “the jury followed the trial judge’s curative
instructions regarding the manner in which the parole law may be applied to an accused”);
Flowers v. State, 890 S.W.2d 906, 918 (Tex. App.—El Paso 1994, no pet.) (noting that
17 “Texas courts have regarded similar instructions as curative and have viewed such
instructions as a mitigating factor when determining whether the giving of parole law
instructions harmed an appellant”).
Next, during its closing argument, the State opined that given appellant’s history
of failing to abide by conditions of probation, he would likewise be unable to “make it” on
parole. The State did not comment on when appellant would be eligible for parole. The
State neither mentioned that appellant would be eligible for parole when he served one-
fourth of his sentence or that appellant’s parole depended on any set amount of time.
Appellant did not address parole in his closing argument. Therefore, this factor weighs
neither in favor of nor against finding egregious harm.
As to count two, one-fourth of the sentence imposed (seventy years) is more than
fifteen years. However, “[p]arole instructions were designed to increase jury sentences.”
Roberts v. State, 849 S.W.2d 407, 410 (Tex. App.—Fort Worth 1993, pet. ref’d) (citing
Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.—Dallas 1992, pet. ref’d)). “Texas
courts agree that the State, not appellant, benefits from the parole law instructions.”
Grigsby, 833 S.W.2d at 576 (citing Arnold v. State, 786 S.W.2d 295, 298 (Tex. Crim. App.
1990)).
Here, the alleged error would have redounded to appellant’s advantage because
the jury was not informed that he would be eligible for parole after fifteen years, regardless
of the punishment it assessed. Therefore, because the State, not the appellant, benefits
from the instructions, it is hard to see how not giving a charge meant to increase the
length of a sentence harms appellant. See id.; Roberts, 849 S.W.2d at 410.
18 Considering the record as a whole, the entire jury charge, the state of the evidence
against appellant, the arguments of counsel, and the fact that the alleged error benefitted
appellant, we conclude that appellant was not egregiously harmed by the omission of the
words “or 15 years, whichever is less” from the parole law jury instruction. We overrule
appellant’s third issue.
V. CONCLUSION
We affirm the trial court’s judgment.
JAIME TIJERINA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 1st day of February, 2024.