Justin S. Mathews v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-12-00046-CR

JUSTIN S. MATHEWS, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas

Trial Court No. 2011-1351-C1

MEMORANDUM OPINION

Justin Mathews appeals from a conviction for aggravated robbery for which he was sentenced to life in prison. TEX. PEN. CODE ANN. § 29.03 (a)(2). Mathews complains that the trial court erred by providing a misleading instruction regarding good conduct time and erred in instructing the jury not to consider “sympathy” in assessing punishment. We affirm.

Parole Law and Good Time Jury Charge Instruction Mathews complains in his first issue that the jury charge’s instructions regarding parole and good time were erroneous because the instructions allow the jury to consider that a defendant might be released early solely due to accruing good conduct time. Mathews contends that the statutory language required to be set forth pursuant to Code of Criminal Procedure article 37.07, section 4(a) in the jury charge is insufficient and misleading. Mathews did not object to the jury charge on this basis. We have previously decided this precise issue against Mathews’s position and are not persuaded to reconsider our ruling. See Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *3, (Tex. App.—Waco June 27, 2012, no pet. h.) (mem. op.) (not designated for publication). We overrule issue one. Sympathy Mathews complains in his second issue that the trial court erred by instructing the jury not to consider “sympathy” in its deliberations in the jury charge in the punishment phase of his trial. Mathews did not object to the jury charge on this basis. We have also previously decided this issue against Mathews’s position and are not persuaded to reconsider our ruling. See Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *4, (Tex. App.—Waco June 27, 2012, no pet. h.) (mem. op.) (not designated for publication); Lewis v. State, No. 10-09-00322-CR, 2011 Tex. App. LEXIS 6074 at *4 (Tex. App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for

Mathews v. State Page 2 publication); Turner v. State, No. 10-09-00307-CR, 2011 Tex. App. LEXIS 6072 at *4, (Tex. App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for publication); Wilson v. State, 267 S.W.3d 215, 219-20 (Tex. App.—Waco 2008, pet. ref’d). We overrule Mathews’s second issue. Conclusion Finding no error, we affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 30, 2012 Do not publish [CRPM]

Mathews v. State Page 3