Joseph Cleveland Bragg v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00151-CR
___________________________
JOSEPH CLEVELAND BRAGG, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1760841
Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
A jury found Appellant Joseph Cleveland Bragg guilty of evading arrest or
detention with a motor vehicle. See Tex. Penal Code Ann. § 38.04(b)(2)(A). The jury
found the allegations in the habitual-offender notice to be true and assessed
punishment at 75 years’ confinement. Bragg raises two points: (1) the trial court
erroneously instructed the jury at punishment that he was eligible to receive good-
conduct time credits under the applicable law; and (2) the judgment incorrectly states
that he made no election as to punishment and that the trial court determined his
sentence. We will modify the judgment and affirm as modified.
I. Punishment Charge
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.In his first point, Bragg argues that the trial court’s charge on punishment
incorrectly contained an outdated parole instruction that referenced good-conduct
time. Bragg correctly points out that Article 37.07, Section 4(a) of the Code of
Criminal Procedure no longer refers to good-conduct time. See Act of May 26, 2015,
84th Leg., R.S., ch. 770, § 2.08, 2015 Tex. Gen. Laws 2321, 2366–68 (amended 2019)
(current version at Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a)). The current version
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of Section 4(a) refers only to parole. See id. The amendment’s effective date was
September 1, 2019, and these proceedings took place on May 18, 2023.
But unlike Section 4(a), Section 4(b) still refers to good-conduct time:
(b) 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 is punishable as a felony of the first degree[;] if a prior
conviction has been alleged for enhancement of punishment as provided
by Section 12.42(b), (c)(1) or (2), or (d), Penal Code[;] or if the offense is
a felony not designated as a capital felony or a felony of the first, second,
or third degree and the maximum term of imprisonment that may be
imposed for the offense is longer than 60 years, unless the offense of
which the jury has found the defendant guilty is an offense that is
punishable under Section 21.02(h), Penal Code, or is listed in Article
42A.054(a) or the judgment contains an affirmative finding under Article
42A.054(c) or (d), the court shall charge the jury in writing as follows:
The length of time for which a defendant is imprisoned may be
reduced by the award of parole.
Under the law applicable in this case, the defendant, if sentenced
to a term of imprisonment, may earn early parole eligibility 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.
Under the law applicable in this case, if the defendant is sentenced
to a term of imprisonment, the defendant will not become eligible for
parole until the actual time served plus any good conduct time earned
equals one-fourth of the sentence imposed or 15 years, whichever is less.
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 sentenced to a term
of imprisonment[ ] because the application of these laws will depend on
decisions made by prison and parole authorities.
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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.
Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b) (emphasis added).
Bragg was convicted of evading arrest or detention with a motor vehicle—a
third-degree felony. See Tex. Penal Code Ann. § 38.04(b)(2)(A). The indictment
included a habitual-offender notice alleging that Bragg had previously been convicted
of two prior felony offenses. Texas Penal Code Section 12.42(d) provides that if “the
defendant has previously been finally convicted of two felony offenses, and the
second previous felony conviction is for an offense that occurred subsequent to the
first previous conviction becoming final, on conviction,” the punishment range is
confinement for life or for any term not more than 99 years or less than 25 years. Id.§ 12.42(d).
Bragg pleaded true to the allegations in the habitual-offender notice, and the
jury found the allegations to be true. Because Bragg’s punishment was enhanced as
provided by Texas Penal Code Section 12.42(d), the trial court was required to
instruct the jury pursuant to Section 4(b) of the Texas Code of Criminal Procedure,
which refers to good-conduct time, rather than Section 4(a). The trial court’s
punishment instructions correctly followed Section 4(b), and there is no error in the
charge. We overrule Bragg’s first point.
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II. Judgment
In his second point, Bragg argues that the judgment incorrectly states that he
made no election for punishment and that the trial court assessed his punishment.
The record shows otherwise: Bragg filed a motion requesting the jury to assess
punishment, the jury heard evidence on punishment, and the jury assessed
punishment. Nevertheless, the trial court checked the box on the judgment form that
reads,
No election. Defendant did not file a written election as to whether the
judge or jury should assess punishment. After hearing evidence relevant
to the question of punishment, the Court assessed Defendant’s
punishment as indicated above.
Bragg asks us to modify the judgment to reflect the correct option:
Jury. Defendant entered a plea and filed a written election to have the
jury assess punishment. The jury heard evidence relative to the question
of punishment. The Court charged the jury and it retired to consider the
question of punishment. After due deliberation, the jury was brought
into Court, and, in open court, it returned its verdict as indicated above.
The State agrees that the judgment incorrectly reflects that Bragg made no
election as to punishment and that the trial court determined his sentence.
We agree with Bragg and the State that the judgment is incorrect, and we
sustain Bragg’s second point. We modify the second page of the trial court’s judgment
to reflect that Bragg elected for the jury to assess his punishment and that it did so. 1
See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (noting that
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appellate court has authority to modify judgment “to make the record speak the
truth” when it has the necessary data and information to do so).
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III. Conclusion
Because we have overruled Bragg’s first point but have sustained his second
point to modify the trial court’s judgment, we affirm the trial court’s judgment as
modified. See Tex. R. App. P. 43.2(b).
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 11, 2024
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