Opinion
No. 05-07-00315-CR
Opinion Filed February 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F06-61526-WJ.
Before Justices O'NEILL, RICHTER, and LANG.
OPINION
A jury convicted Rosalio Arceo of the aggravated assault with a deadly weapon of his wife and sentenced him to six years confinement. In a single point of error, Arceo now complains his due process rights under the United States and Texas Constitutions were violated by the trial court's submission of the statutorily required parole and good conduct time instruction in the punishment charge. We affirm. At issue is the following portion of the charge:
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 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 be accurately 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.
You are instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve the sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are not to be considered by you.This language informs the jury in very general terms about the existence and possible grant of parole. Luquis v. State, 72 S.W.3d 355, 358, 360 (Tex.Crim.App. 2002). It also informs the jury generally about the existence and possible award of good conduct time, which may result in a reduction in the period of incarceration and "accelerate" the eligibility date for early release from the penitentiary through either parole or mandatory supervision. Id. n. 4. All but the last paragraph is statutorily required to be included in the punishment charge of all "3g(a)(1)" felony cases and those felonies in which a deadly weapon was used or exhibited-like Arceo's, even though the eligibility date for parole of all "3g(a)(1)" felons and felons found to have used or exhibited a deadly weapon cannot be "accelerated" through the award of good conduct time and those felons are ineligible for release on mandatory supervision. Tex. Gov't Code Ann. §§ 508.145(d), 508.149(a) (Vernon Supp. 2007); Tex. Code Crim. Proc. Ann. arts. 37.07, § 4(a); 42.12, § 3g(a)(1),(2) (Vernon Supp. 2007); Luquis, 72 S.W.3d at 363. Because of this incongruity, a jury instruction on good conduct time, although mandated, may nonetheless violate a defendant's constitutional due process rights. Luquis, 72 S.W.3d at 365. The burden rests on the defendant to show the instruction, as applied to him, is unconstitutional. Id. Because the jury is contemporaneously instructed not to consider how good conduct time may affect a defendant and we presume the jury followed this instruction, the defendant must show a reasonable probability exists that the instruction on good conduct time actually confused the jury. Id. at 366-67. In arguing his due process rights were violated and the jury was confused by the good conduct time instruction, Arceo relies on the following note the jury sent to the trial judge about one hour into its deliberations: If parole is considered is the defendant eligible for deferred adjudication parole? However, this note concerns parole, not good conduct time, and nothing in the note, or elsewhere in the record, leads us to conclude this was more than a preliminary question raised by the jury. See Colburn v. State, 966 S.W.2d 511, 519-20 (Tex.Crim.App. 1998) (jury note questioning whether parole was possible for defendant sentenced to life alone insufficient to rebut presumption jurors followed instruction not to consider parole in its deliberations); Byrd v. State, 192 S.W.3d 69, 71-72 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (same — jury note questioning difference between life sentence and ninety-nine year sentence); Graham v. State, 96 S.W.3d 658, 661 (Tex.App.-Texarkana 2003, pet. ref'd) (same — jury note questioning whether defendant sentenced to sixty years or eighty years would be eligible for parole after serving fifteen years less time earned for good conduct). In fact, the record reflects that over a two-and-a-half hour period, the jury sent out three more notes to the judge concerning probation, whether Arceo had any prior convictions for assaulting his wife, and what would happen if they were deadlocked. The jury then deliberated for an additional hour-and-a-half. Additionally, as the State points out, neither the prosecutor nor defense counsel discussed good conduct time in closing argument or urged the jury to assess punishment based on any potential good conduct time credit, and nothing else shows the jury was confused about good conduct time and misapplied the law. See Luquis, 72 S.W.3d at 367; Atkinson v. State, 107 S.W.3d 856, 860 (Tex.App.-Dallas 2003, no pet.). Given the record before us, we conclude Arceo's due process rights were not violated by the trial court's submission of the statutorily mandated instruction on parole and good conduct time. We overrule his sole point of error. We affirm the trial court's judgment.
"3g(a)(1)" felony cases are those listed in section 3g(a)(1) of article 42.12 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1) (Vernon Supp. 2007). They include murder, aggravated kidnaping, and indecency with a child. Id.
Although all "3g(a)(1)" felons and all felons found to have used or exhibited a deadly weapon are ineligible for an "acceleration" of their eligibility date for parole through the award of good conduct time credit, they may still benefit from an accrual of such credit once they become eligible for parole as their behavior while incarcerated is a factor the parole panel uses in determining whether to release an inmate on parole. Luquis, 72 S.W.3d at 360 n. 4 364 n. 23; Felan v. State, 44 S.W.3d 249, 257-58 (Tex.App.-Fort Worth 2001, pet. ref'd).