Justin Ontiveros v. State

• Court: Court of Appeals of Texas
• Decided: November 1, 2007
• Docket: 01-06-00594-CR
• Status: Published

Opinion

Opinion Issued November 1, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00594-CR

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JUSTIN ONTIVEROS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1044365

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MEMORANDUM OPINION

          A jury found appellant, Justin Ontiveros, guilty of aggravated sexual assault of a child, enhanced by a prior felony conviction for aggravated robbery, and having found true the enhancement allegation, assessed punishment at 60 years in prison. Tex. Pen. Code Ann. § 22.021 (Vernon 2003 & Supp. 2006). We consider whether the trial court’s omission of that portion of the statutory parole instruction dealing with good conduct time in the punishment-phase charge to the jury caused egregious harm. We affirm.

Facts

          While spending the night with friends, the 12-year-old complainant took Lorcet, a narcotic pain-reliever, provided by the 24-year-old appellant. The complainant felt “doped up” and “had trouble walking.” Appellant penetrated the complainant’s vagina digitally. Appellant likewise assaulted two of the complainant’s friends. Later in the night, appellant penetrated the complainant’s vagina with his penis.

Jury Charge Instruction

          Appellant complains in his sole issue that the trial court erred in failing to include an instruction on “good conduct time” in the punishment-phase charge to the jury, as required by article 37.07(4)(a) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07(4)(a) (Vernon 2006). Article 37.07(4)(a) provides:

In the penalty phase of the trial of a felony case in which the punishment is to be assessed by the jury rather than the court, if the offense of which the jury has found the defendant guilty is listed in Section 3g(a)(1), Article 42.12, of this code or if the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, of this code, unless the defendant has been convicted of a capital felony the court shall charge the jury in writing 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 imprisoned 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.”

Id. (emphasis added). Although the trial court charged the jury on parole law, it failed to include the above-italicized mandatory good conduct time language. The State concedes that the court failed to include the mandatory good conduct time instruction, but contends that the error was harmless.  

          Appellant failed to object to the lack of a good conduct time instruction. Therefore, we will reverse only if appellant shows that the error was so egregiously harmful that he was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). Egregious harm includes errors (1) affecting the case’s foundation, (2) denying the defendant a valuable right, (3) significantly affecting a defensive theory, or (4) making the case for guilt or punishment clearly and substantially more compelling. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Tear v. State, 74 S.W.3d 555, 562 (Tex. App.—Dallas 2002, pet. ref’d). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Bolden v. State, 73 S.W.3d 428, 434 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). There must be actual, rather than theoretical, harm before a reversal of the judgment is authorized. Dicky v. State, 22 S.W.3d 490, 492-93 (Tex. Crim. App. 1999).

          Appellant argues that he was harmed because the jurors were not informed that all or part of appellant’s earned good conduct time could be taken away if he misbehaved in prison. He asserts that, based on legislative history, jurors are “largely prone to increase sentences based on their misconceptions of good conduct time” and were “more likely to increase appellant’s sentence in the absence of the instruction.” Any harm that appellant asserts based on legislative history is purely speculative. There is nothing in the record to demonstrate that the jury in this case considered or applied the concept of good conduct time when assessing appellant’s sentence.

          The charge given instructed the jury not to consider the manner in which parole law might be applied to appellant. We must presume that the jury understood and followed these instructions. See Stokes v. State, 74 S.W.3d 48, 51 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Hutch, 922 S.W.2d at 172). Furthermore, the instructions informed the jury that appellant had to serve actual time of “one-half of the sentence imposed or 30 years.”

          The evidence of guilt was substantial and largely uncontested. Appellant stipulated to two prior felony convictions for aggravated robbery and theft and a prior misdemeanor conviction for possession of a controlled substance. Because appellant pleaded “true” to the enhancement paragraph of the indictment, he faced not less than 15 years nor more than 99 years or life in prison. Tex. Pen. Code Ann. § 12.42 (Vernon 2003 & Supp. 2006). During closing arguments, neither the State nor appellant referenced parole or good conduct time. Appellant’s counsel argued that the jury should consider the full range of punishment. He further explained to the jury, “[Y]ou’re not to try to determine how long an accused would serve in reaching what a proper sentence would be.” The State argued that nothing less than 50 years in prison would be appropriate. The jury assessed punishment at 60 years in prison. Based on this record, we cannot conclude that appellant has demonstrated any actual harm, much less egregious harm. See Bolden, 73 S.W.3d at 434; Myres v. State, 866 S.W.2d 673, 674 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Hanks, and Higley.

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