      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                           NO. 03-11-00546-CR



                                    Arthur Zapata Ortega, Appellant

                                                      v.

                                       The State of Texas, Appellee


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
  NO. 10-1451-K26, THE HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                                MEMORANDUM OPINION


                   A jury convicted appellant Arthur Zapata Ortega of felony driving while intoxicated

and, in addition, found that he used or exhibited a deadly weapon during the commission of the

offense. See Tex. Penal Code Ann. §§ 49.04(a), 49.09(b)(2) (West 2011); Tex. Code Crim. Proc.

Ann. art. 42.12, § 3g(a)(2) (West Supp. 2012). The jury assessed appellant’s punishment, enhanced

pursuant to the habitual offender punishment provision of the penal code, at confinement for 99 years

in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann.

§ 12.42(d) (West Supp. 2012). In a single point of error on appeal, appellant complains of

jury-charge error in the punishment charge. Finding no reversible error, we affirm the judgment of

the trial court.

                   In his sole point of error, appellant asserts that the trial court fundamentally erred by

giving the jury the wrong parole instruction in the punishment charge. Because the jury returned an
affirmative deadly-weapon finding, the jury should have been charged in accordance with section

4(a) of article 37.07 of the Texas Code of Criminal Procedure, which provides:


       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.


Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp. 2012). Instead, the jury was charged

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
       any good conduct time earned 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.


(Emphasis added.) This instruction—erroneously adding the italicized language—is not found in

the code of criminal procedure.

               Appellant argues that this “confusing” instruction “was extremely detrimental” to him

because the parole instruction as a whole “probably” gave the misleading impression to the jury that

“good conduct credit would result in appellant becoming eligible for parole in significantly less

time than actually permitted by law.”           The State concedes that the parole eligibility

instruction—indicating both that good conduct time would and would not be a factor in determining

appellant’s eligibility for parole—was erroneous, but argues that appellant was not harmed by the

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parole instruction. We agree that the parole eligibility instruction given by the trial court was

erroneous since it did not comply with article 37.07, § 4(a).

                The degree of harm required for reversal for jury-charge error depends on whether

the error was preserved in the trial court. If the appellant objected to the charge error at trial, reversal

is required if the error “is calculated to injure the rights of the defendant,” which has been defined

to mean that there is “some harm.” Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009)

(quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). In contrast,

if the appellant did not object at trial, the error must be “fundamental,” and reversal is required only

if the error was so egregious and created such harm that the defendant “has not had a fair and

impartial trial.” Id.

                The record reflects, and appellant concedes, that he failed to object to the erroneous

parole eligibility instruction at trial. Thus, the error does not call for a reversal of the conviction

unless it was so egregiously harmful under the circumstances as to have denied appellant a fair

and impartial trial. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Almanza,

686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be “assayed in light of

the entire jury charge, the state of the evidence, including the contested issues and weight of the

probative evidence, the argument of counsel, and any other relevant information revealed by the

record of the trial as a whole.” Almanza, 686 S.W.2d at 171; see Ngo v. State, 175 S.W.3d 738,

750 n.48 (Tex. Crim. App. 2005). The degree of harm demonstrated by the appellant must be actual,

not merely theoretical. Almanza, 686 S.W.2d at 174. “Jury-charge error is egregiously harmful if

it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a



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defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). Egregious harm is a difficult standard to

meet and must be determined on a case-by-case basis. See Ellison v. State, 86 S.W.3d 226, 227

(Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.

               Beginning with the punishment charge itself, we observe that in addition to the

erroneous eligibility instruction, the jury was given the requisite statutory instructions explaining

good conduct time and parole:


       Under the law applicable to 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.


See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). The jury was also given instructions that we view

as mitigating or curative in the paragraphs following the instruction with the erroneous language:


       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 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.



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See id.; Ross v. State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004); see also Igo v. State,

210 S.W.3d 645, 647 (Tex. Crim. App. 2006).

                As a whole, the trial court’s parole instructions informed the jury that appellant may

be released from a prison sentence early because of good conduct time or parole, but not that he

necessarily would, and that one cannot predict how parole law and good conduct time might be

applied to appellant. Further, the jury was explicitly instructed that although it could consider, in

general, the existence of parole and good conduct time, it could not apply that to appellant

specifically. We presume that the jurors understood and followed the court’s instructions in the jury

charge absent evidence to the contrary. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App.

2011); Hutch, 922 S.W.2d at 172. There is no evidence in the record to rebut the presumption that

the jury followed the instruction not to consider how good conduct time or the parole law might be

applied to appellant. Nothing in this record suggests that the jury discussed, considered, or tried to

apply—contrary to the judge’s admonition—what they were told about good conduct time and

parole. For example, the jury did not send out any notes or questions expressing confusion about

the parole instruction or indicating the possible application of good conduct time or the parole law

to appellant.

                With respect to the evidence in this case, the record reflects that while driving his

Honda Accord in Hutto, Texas, appellant made a wide right turn onto FM 685, crossed the center

lane of traffic, and came within less than a foot of hitting a sheriff deputy’s patrol car. When the

deputy initiated a traffic stop and made contact with appellant, he observed multiple signs of

intoxication. Appellant then failed the standardized field sobriety tests administered by the deputy.



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After being taken into custody, appellant consented to giving a blood sample. Subsequent lab testing

established that appellant’s blood alcohol concentration was 0.25, more than three times the legal

limit of intoxication. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011) (legal threshold for

intoxication is alcohol concentration of 0.08). The evidence also revealed that appellant had six

prior convictions for driving while intoxicated. In addition, the State presented punishment evidence

demonstrating that appellant had seven prior felony convictions, the most recent of which carried

30-year sentences. Appellant was on parole when he committed the instant offense.

                Concerning jury argument, the State briefly referenced parole during its closing

argument. In particular, when discussing the appropriate sentence for appellant, the prosecutor

indicated that “anything above 60, 60 years to life or 99, he’s eligible for patrol [sic] after 30 years.”

He did not mention good conduct time in connection with parole eligibility. Defense counsel also

briefly alluded to parole eligibility. In urging the jury to consider the minimum sentence, he argued

that if appellant, 48 years old at the time of trial, was sentenced to 25 years, he would “discharge that

sentence at 73 years old.” Again, no mention of good conduct time affecting parole eligibility was

made. In short, while both the prosecutor and defense counsel referenced parole eligibility, neither

reference suggested that good conduct time was a consideration in appellant’s parole eligibility.

Thus, the arguments presented the jury with the correct application of the parole law concerning

appellant—that good conduct time was not a consideration in his parol eligibility.

                In conclusion, although appellant did receive the maximum sentence available, the

factors discussed above militate against a finding of egregious harm. First, the jury charge contained

curative or mitigating instructions. The parole instruction explained the possibility, not certainty,



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that appellant’s prison sentence may be reduced by good conduct time or parole eligibility and,

further, clearly admonished the jury not to consider the extent to which the parole law or good

conduct time might be applied to appellant. Second, while parole eligibility was briefly referenced

during jury argument, good conduct time as a factor of parole eligibility was not mentioned by either

party. Further, there is no evidence in the record that the jury attempted to apply the parole laws or

good conduct time when assessing appellant’s sentence. Finally, the evidence relating to both

guilt-innocence and punishment was exceptionally strong. The jury could have viewed appellant’s

extensive DWI history—demonstrating a repeated disregard for endangering others with his conduct,

the circumstances of this DWI offense—including appellant’s high level of intoxication and the

near-collision with the deputy’s car, and appellant’s lengthy criminal history—rendering him a

“habitual offender”—as factors warranting the maximum sentence.

               After reviewing the record and considering all the Almanza factors, we conclude

appellant was not egregiously harmed by the erroneous parole instruction. We overrule appellant’s

sole point of error and affirm the judgment of conviction.



                                               __________________________________________
                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: November 29, 2012

Do Not Publish



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