Darryl Dewayne Williams v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00030-CR
DARRYL DEWAYNE WILLIAMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-750-C1
MEMORANDUM OPINION
The jury convicted Darryl Dewayne Williams of delivery of a controlled substance,
cocaine, in a drug free zone. The jury found the enhancement paragraphs to be true and
assessed punishment at confinement for life. We affirm.
Background Facts
There is no challenge to the sufficiency of the evidence. Officer John Allovio, with
the Waco Police Department, testified that he received information from a confidential
informant that Williams was selling cocaine. Officer Allovio asked the confidential
informant to call Williams and arrange a purchase of cocaine. Officer Allovio and the
confidential informant drove to Williams’s residence, and they each purchased cocaine
from Williams. The residence was located within 1000 feet of a school.
Jury Charge
In his first issue, Williams argues that the trial court erred in not supplementing
the jury charge instruction on the effect of good conduct time. Article 37.07 of the Texas
Code of Criminal procedure states:
Sec. 4. (a) In the penalty phase of the trial of a felony case … 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
Williams v. State Page 2
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."
TEX. CODE CRIM. PRO. ANN. art. 37.07 §4(a) (West Supp. 2014). The trial court instructed
the jury as required by Article 37.07 §4(a). Williams’s trial counsel did not object to the
charge.
Williams argues that the instruction improperly implies that a person may be
released from prison early and without supervision solely due to accruing good conduct
time. He contends that the trial court should have supplemented the instruction to avoid
confusion.
We have previously decided this issue against Williams’s position, and we are not
persuaded to reconsider our ruling. See Lopez v. State, No. 10-12-00282-CR, 2013 Tex. App.
LEXIS 1229 (Tex.App. – Waco Feb. 7, 2013, pet. ref’d); Paez v. State, No. 10-12-00091-CR,
2012 Tex.App. LEXIS 9121 (Tex. App. – Waco November 1, 2012, pet. ref’d); Mathews v.
State, No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30,
2012, no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *3,
(Tex. App.—Waco June 27, 2012, no pet. h.). We overrule the first issue.
In his second issue, Williams complains that the trial court erred in instructing the
jury during the punishment phase of the trial not to consider “sympathy” in its
deliberations. The trial court instructed the jury, “Do not let personal bias, prejudice,
sympathy or resentment on your part, or any such personal emotion on your part, enter
into your deliberations or affect your verdict in this case.”
Williams v. State Page 3
Williams did not object to the jury charge on this basis. We have also previously
decided this issue against Williams’s position, and we are not persuaded to reconsider
our ruling. See Lopez v. State, No. 10-12-00282-CR, 2013 Tex. App. LEXIS 1229 (Tex.App. –
Waco Feb. 7, 2013, pet. ref’d); Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121
(Tex. App. – Waco November 1, 2012, pet. ref’d); Mathews v. State, No. 10-12-00046-CR,
2012 Tex. App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v.
State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *4, (Tex. App.—Waco June 27,
2012, no pet. h.). We overrule the second issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed July 23, 2015
Do not publish
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