Hill v. State , 2000 Tex. App. LEXIS 5832 ( 2000 )

OPINION

Opinion by

Justice ROSS.

Adam Gene Hill pled guilty to a charge of aggravated robbery. A jury assessed his punishment at imprisonment for thirty years and a fine of $5,000.00. Hill contends on appeal that an unobjected-to charge error was so egregious that it requires reversal and that his counsel was ineffective because he did not object to the error.

Hill robbed a hotel clerk at gunpoint on January 11,1999. After Hill pled guilty to this offense, a jury trial was held to determine his punishment. During this trial, the State presented evidence that on the day in question, Hill not only committed this crime, he also committed two other aggravated robberies. Additionally, the evidence showed that Hill was eighteen years old at the time of the robberies, had been in juvenile detention since he was fifteen, and had been released from Texas Youth Commission supervision for only about four months before the robberies occurred.

Hill first contends that he should have a new trial on punishment because of an error in the jury charge. Hill claims, and the State concedes, that the given charge is inaccurate because it fails to correctly state the mandatory language of the Texas Code of Criminal Procedure, Article 37.07, § 4(a). Pursuant to that article, the trial court has a duty to charge the jury, in pertinent part, as follows:

Under the law applicable in this ease, 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....

Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp.2000).

However, in the instant case, this portion of the jury charge was submitted, in pertinent part, as follows:

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 plus good conduct time equals one-half of the sentence imposed or thirty (30) years, whichever is less.

(Emphasis added.) The trial court altered the statutorily mandated language by adding the above italicized language and by failing to include the required language “without consideration of any good conduct time he may earn.'” It is uncontested that the trial court had a duty to properly instruct the jury and that the jury was given an inaccurate charge; however, it is also uncontested that Hill failed to object to the flawed charge.

Hill’s failure to object is of great importance in this situation because the standard of review for charge errors is dependent on whether the defendant properly objected. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (opinion on reh’g); Gornick v. State, 947 S.W.2d 678, 680 (Tex.App.-Texarkana 1997, no pet.). Where there has been no objection, the error is reversible only if the appellant has shown that the error caused him egregious harm. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994); Peterson v. State, 942 S.W.2d 206, 208 (Tex.App.-Texarkana 1997, pet. ref'd).

“Egregious harm consists of errors affecting the very basis of the case, or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive.” Hall v. State, 937 S.W.2d 580, 583 (Tex.App.-Texarkana 1996, pet. ref'd). Where a defendant does not object to the charge, reversal is required only if the harm is so egregious that the defendant has not had a fair and impartial trial. Rudd v. State, 921 S.W.2d 370, 373 (Tex.App.-Texarkana 1996, pet. ref'd). We determine harm in light of the entire jury charge, the state of the evidence (including contested issues and the weight of the probative evidence), the argument of counsel, and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Rudd, 921 S.W.2d at 373. However, direct evidence of harm is not necessary in order to establish egregious harm. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Article 37.07, § 4(a) requires the trial court to inform the jury of the effects of parole and good conduct time for every noncapital felony listed under Tex.Code Crim. Proo. Ann. art. 42.12, § 3g(a) (Vernon Supp.2000). Tex. Code Crim. Proo. Ann. art. 37.07, § 4(a). Giving this instruction is a blanket requirement, regardless of whether the defendant is actually eligible for such time. Id. The mandatory nature of this instruction has recently been challenged in several courts of appeals, to determine if this instruction is misleading or unconstitutional when the defendant is not eligible for such time, and three petitions for review have recently been granted by the Texas Court of Criminal Appeals. Edwards v. State, 10 S.W.3d 699, 703 (Tex.App.-Houston [14th Dist.] 1999, pet. granted); Luquis v. State, 997 S.W.2d 442, 443 (Tex.App.-Beaumont 1999, pet. granted); Jimenez v. State, 992 S.W.2d 633, 636-38 (Tex.App.-Houston [1st Dist.] 1999, pet. granted); see also Cagle v. State, 23 S.W.3d 590 (Tex.App.-Fort Worth July 6, 2000, no pet. h.); Ballard v. State, No. 05-97-01452-CR, 2000 WL 99871, 2000 Tex.App. LEXIS 691 (Tex.App.-Dallas Jan. 31, 2000, no pet. h.); Hyde v. State, 970 S.W.2d 81, 88-89 (Tex.App.-Austin 1998, pet. ref'd); Martinez v. State, 969 S.W.2d 497, 499-501 (Tex.App.-Austin 1998, no pet.).

While the outcome of this constitutionality argument would affect Hill’s case, since he was convicted of aggravated robbery and thus is not eligible for good conduct time or mandatory supervision, the error complained of in his case is even more severe. In the above-cited cases, where Article 37.07, § 4(a) was said to be misleading and unconstitutional, the jury was at least accurately informed as to how the parole laws and good conduct time work. This is important, because aceord-ing to Article 37.07, § 4(a), the jury “may consider the existence of the parole law and good conduct time” in making its decision. Tex.Code Crim. Proo. Ann. art. 37.07, § 4(a).

In this case, the jury had no choice but to believe that under the existing law it is possible for the defendant to become eligible for parole when “the actual time served plus good conduct time equals one-half of the sentence imposed or thirty (30) years, whichever is less.” However, Article 37.07, § 4(a) states in clear language that no person is eligible for parole until he has actually served half of the sentence imposed, “without consideration of any good conduct time he may earn.” Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a). The court’s misstatement of the law in this case misled the jury and seriously affected how it viewed the existence of parole and good conduct time, which the instructions plainly told the jury it could consider.

The Beaumont Court of Appeals is the only other court that has addressed an express misstatement of Article 37.07, § 4(a). Shavers v. State, 985 S.W.2d 284, 291-92 (Tex.App.-Beaumont 1999, pet. ref'd). In Shavers, the Beaumont court held that “[t]he misstatement of law in the charge, in effect, tells the jury that the defendant may be eligible for parole at an earlier date because of good conduct time,” but that this error did not result in a showing of egregious harm because of certain mitigating factors,¹ including a curative instruction, which told the jury that it was not to consider how good conduct time or parole would affect this particular defendant. Id. at 292.

While we understand the reasoning of the Beaumont court, we disagree with its narrow characterization of how this charge error misinforms the jury. This misstatement clearly affects not only the jury’s idea of when this particular defendant is eligible for parole, but it also misleads the jury about the general existence of the parole laws and good conduct time. This is an important distinction, because while the jury’s mistaken belief as to when Hill is eligible for parole can be cured by the mitigating instruction, the misstatement about the parole system itself cannot and is not cured by such instruction. “In some cases, erroneous jury instructions alone can demonstrate egregious harm.” Brooks v. State, 967 S.W.2d 946, 950 (Tex.App.-Austin 1998, no pet.), citing Hutch, 922 S.W.2d at 171; see Ruiz v. State, 753 S.W.2d 681, 687 (Tex.Crim.App.1988) (failure of judge to instruct jury on state’s burden, which effectively lowered state’s burden of proof, may have misled the jury and was egregious harm); Manning v. State, 730 S.W.2d 744, 750 (Tex.Crim.App.1987) (improperly stated burden of proof which may have harmed appellant was egregious harm). There is no doubt in this case that the jury was inaccurately informed and misled by the court’s charge. Therefore, we find that the error in the charge amounted to egregious harm, and we sustain Hill’s first point of error.

We affirm the judgment of conviction, but remand this case for a new trial on punishment.

1 . The Shavers court relied on other mitigating factors, such as the brutality of the crime, the overwhelming evidence of guilt, the failure by either side to mention or comment on the effect or eligibility of the defendant for parole or good conduct time, and the fact that the juiy's assessment of punishment was less severe than the maximum, which was sought by the State. Shavers v. State, 985 S.W.2d 284, 292 (Tex.App.-Beaumont 1999, pet. ref'd).