                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00025-CR
        ______________________________


   DEUNJERELLE LESTER JACKSON, Appellant

                         V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 276th Judicial District Court
               Morris County, Texas
               Trial Court No. 10,188




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                         MEMORANDUM OPINION

         In the early morning hours of April 21, 2009, after closing time, a melee broke out in the

parking lot outside Cat Daddy’s, near Daingerfield, during which Deunjerelle Lester Jackson shot

and killed Christopher Moore.1 From Jackson’s conviction for murdering Moore and Jackson’s

resulting sentence of ninety-nine years’ imprisonment, Jackson appeals, complaining of an

allegedly defective jury instruction. We affirm.

         As his sole ground of error on appeal, Jackson claims the trial court reversibly erred in

―submitting a punishment charge to the jury that was incomplete and untimely.‖2

         Our review of alleged error in the jury charge involves a two-step process. Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25–26

(Tex. Crim. App. 2009). Initially, we determine whether error occurred; then, if there was error,

we evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871

S.W.2d at 731–32. Jackson’s specific jury charge complaint points to Article 37.07 of the Texas

Code of Criminal Procedure and its statutory mandate to instruct juries that, ―[i]f the defendant is

sentenced to a term of less than four years, he must serve at least two years before he is eligible for


1
 Tarmaine Elliott attended a private party at Cat Daddy’s on Easter weekend 2009. Elliott testified that, as the venue
closed for the night, a twenty-person brawl erupted, ending in a barrage of gunfire. Elliott witnessed Jackson fighting
with Moore. Jackson ―reached in his waist and pulled out a pistol.‖ He ultimately fired four of five shots at Moore,
proving fatal.
2
 Under his point of error, Jackson develops only the issue discussed in this opinion, that of the omission from the jury
instruction of statutorily required language. He also mentions, but does not develop, an alleged redundancy as to a
deadly-weapon issue. We address only the argument developed. See Busby v. State, 253 S.W.3d 661, 673 (Tex.
Crim. App. 2008).

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parole.‖ TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (Vernon Supp. 2010). The trial court

omitted this mandatory sentence. With respect to Article 37.07, Section 4, a ―trial court commits

error when it deviates from the statutorily mandated language by adding or deleting language.‖

Loun v. State, 273 S.W.3d 406, 415 (Tex. App.—Texarkana 2008, no pet.) (citing Villarreal v.

State, 205 S.W.3d 103, 105 (Tex. App.—Texarkana 2006, pet. dism’d, untimely filed); Hill v.

State, 30 S.W.3d 505, 509 (Tex. App.—Texarkana 2000, no pet.)). Because the provision

Jackson complains of was omitted, error occurred. Loun, 273 S.W.3d at 415.

       We now must decide whether the error was harmful. Jackson admits in his brief that he

failed to object to the jury charge. Because Jackson did not preserve his complaint at trial, our

error analysis must address whether the error was so egregious and created such harm that the

appellant did not have a fair and impartial trial. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim.

App. 2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); Boones

v. State, 170 S.W.3d 653, 660 (Tex. App.—Texarkana 2005, no pet.). Egregious harm occurs

where an error affects the very basis of a case, deprives the defendant of a valuable right, vitally

affects a defensive theory, or makes the case for conviction or punishment clearly and significantly

more persuasive. Boones, 170 S.W.3d at 660 (citing Saunders v. State, 817 S.W.2d 688, 692

(Tex. Crim. App. 1991)). This standard is difficult to prove and must be determined on a

case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002).

       The jury was properly instructed that the permissible punishment range was ―for a term of



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not more than 99 years or life or less than 5 years.‖ Because Jackson could not possibly receive a

punishment assessment ―of less than four years,‖ the statutorily mandated sentence omitted from

the jury charge was logically inapplicable to the range of Jackson’s possible punishment. See

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a). Indeed, it is understandable why the trial court

might have omitted the sentence, since its inclusion may have confused the jury. Jackson was not

egregiously harmed by omitting the phrase from the jury charge.

       We affirm the trial court’s judgment.




                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:       September 20, 2010
Date Decided:         September 21, 2010

Do Not Publish




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