                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
            ___________________________

                 No. 02-18-00230-CR
                 No. 02-18-00231-CR
                 No. 02-18-00232-CR
            ___________________________

             EARL THOMPSON, Appellant

                           V.

                THE STATE OF TEXAS


          On Appeal from the 211th District Court
                   Denton County, Texas
Trial Court Nos. F17-1865-211, F17-1867-211, F17-1868-211


         Before Gabriel, Pittman, and Bassel, JJ.
         Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      Appellant Earl Thompson was indicted and pleaded guilty in three separate

cases of burglary of habitation with intent to commit sexual assault. See Tex. Penal

Code Ann. § 30.02. During the punishment phase, the trial judge sua sponte asked

Appellant if he wanted to testify. Appellant stated that he did, but after a ten-minute

recess to confer with his counsel, Appellant’s trial counsel did not call him as a

witness. The jury assessed Appellant’s punishment at confinement for life in the

Institutional Division of the Texas Department of Criminal Justice (TDCJ), and the

trial court sentenced him accordingly. Appellant raises two issues asserting that his

Sixth Amendment constitutional right to testify was violated and that the jurors

improperly considered parole when deliberating. Because the record on this direct

appeal is inadequate for us to resolve whether there was deficient performance by

Appellant’s counsel let alone prejudice with regard to his Sixth Amendment

complaint, and because a complaint to the trial court’s response to the jury’s note

concerning parole was not preserved—and even if preserved, was not an error— we

affirm.




                                          2
                                   II. BACKGROUND 1

       Following his commission of a series of home-invasion assaults in Denton,

Texas, Appellant was arrested and charged in three cases of burglary of habitation

with intent to commit sexual assault. He pleaded guilty in all three cases and elected

to have a jury assess punishment for all three cases in one punishment trial. During

the punishment trial, the State called 31 witnesses.

       Before the defense called its first witness and outside of the presence of the

jury, the trial court asked both Appellant and his trial counsel if they had discussed the

possibility of Appellant testifying and his Fifth Amendment right not to testify. After

Appellant and his trial counsel affirmed that they had discussed the matter, the trial

court asked Appellant if he wanted to testify. Appellant stated that he wanted to

testify, which prompted the trial court to reiterate again that it is his absolute right not

to testify and that the exercise of the right cannot be used against him. Appellant

reiterated that he wanted to testify. The entire exchange appears in the reporter’s

record as follows:

       THE COURT: All right. We’re back on the record from the lunch
       break. The jury has not been seated at this time.

            [Appellant’s trial counsel], have you had plenty of time to
       admonish your client and go over with him his right to exercise his Fifth
       Amendment and not testify in this matter?


       Because the resolution of Appellant’s two issues does not require more, we
       1

provide a limited recitation of the factual and procedural background of these cases.


                                             3
      [APPELLANT’S TRIAL COUNSEL]: I have, Your Honor.

         THE COURT: All right. Mr. Thompson, I just want to reiterate
and make sure that you have had ample opportunity to speak to your
attorney about your ability to be able to -- one of two things, either
testify in this matter or exercise your Fifth Amendment right to not
testify.

      Have you had time to go over with your attorney all of the
options that you have regarding your testimony?

      THE DEFENDANT: Yes, sir.

      THE COURT: All right. And have you made a decision?

      THE DEFENDANT: Yes, sir.

      THE COURT: And what is your decision?

      THE DEFENDANT: Testify.

      THE COURT: You would like to testify?

      THE DEFENDANT: Uh-huh.

       THE COURT: All right. And that is your absolute right to do
so. I just want to make sure that I reiterate that if you choose to exercise
your constitutional right to remain silent, you understand that that is an
absolute right and that cannot be used against you and, in fact, the jury
will be instructed both orally by me reading the charge and in writing
that they cannot use that circumstance against you? Do you understand
that?

      THE DEFENDANT: Yes, sir.

        THE COURT: And understanding that, do you still choose to
testify in this matter?

      THE DEFENDANT: Yes, sir.



                                     4
      After the defense called its second witness, the trial court again discussed

Appellant’s Fifth Amendment rights with him before granting a ten-minute recess for

Appellant to discuss with his trial counsel whether he still wanted to testify:

             THE COURT: Mr. Thompson, we spoke and I gave you
      admonishments before the jury was seated, and I know you’ve had lots
      of opportunities to speak with [your trial counsel] about you testifying in
      this case. One of the things I wanted to bring up to you is you
      understand if you take the stand your attorney is going to ask you
      questions first? You understand you cannot assert a Fifth Amendment
      privilege and remain silent when the State begins to ask you questions?
      You understand that?

             THE DEFENDANT: Yes, sir.

             THE COURT: It’s a two-way street. And I know [your trial
      counsel] has talked to you about that, but I want to reiterate that as well,
      so we’ve taken a break so that you can talk to your attorney a few more
      minutes before you’re called to testify. So I’ve granted that recess in
      order for you to speak to your attorney in private to see if you want to
      stick with your decision of testifying or if you’d like to assert your Fifth
      Amendment privilege.

             With that, we’ll be in recess for ten minutes.

             [APPELLANT’S TRIAL COUNSEL]: Thank you, Your Honor.

      After the recess, the defense called a total of three witnesses, but not Appellant.

The record does not reflect that the issue of whether Appellant wanted to testify came

up again.

      After both sides rested, the trial court tendered its charge to the jury for all

three cases. The charge included the following instructions regarding 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

                                            5
       actual time served equals one-half of the sentence imposed or 30 years,
       whichever is less, without consideration of any good conduct time
       defendant may earn. 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 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.

              In determining the punishment in this case, you are instructed
       that you are not to discuss among yourselves how long the defendant
       will be required to serve any 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.

[Emphasis added.]

       After the jurors had begun deliberating, the presiding juror gave a note to the

bailiff with three questions for the trial court that all concerned parole:

       1) Does a life sentence mean no chance of parole?

       2) Does 99 yrs mean a minimum of 30 yrs before parole opportunity is
       available?

       3) Does 60 yrs mean a minimum of 30 yrs before parole opportunity is
       available?

The trial court read the questions to counsel and proposed the following response:

“Ladies and gentlemen of the jury, in response to your question, you are instructed

that you have before you all the law and the evidence allowed in the case. Please refer

                                             6
to the Court’s Charge and continue your deliberations.” After neither the prosecutor

nor Appellant’s trial counsel had any objection to the proposed response, the bailiff

gave the written response to the jurors.

      The jury assessed Appellant’s punishment at life in the Institutional Division of

the TDCJ for each case and the trial court sentenced Appellant accordingly. This

appeal followed.

                              III. FAILURE TO TESTIFY

      In his first issue, Appellant contends that his Sixth Amendment right to testify

was violated because the record supports that he expressed a desire to testify, but his

trial counsel did not call him as a witness. Appellant attempts to frame his challenge

as implicating his Sixth Amendment defendant-autonomy rights recently explained by

the United States Supreme Court in McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The

State responds that although Appellant did state at one point that he wanted to testify,

the last on-the-record mention of the issue demonstrates that Appellant and his trial

counsel were still discussing if Appellant was going to testify, so Appellant’s allegation

is not confirmed by the record. Moreover, the State contends that a defendant’s

complaint that his constitutional right to testify was violated is not analyzed under the

McCoy framework, but is instead analyzed under the ineffective-assistance-of-counsel

standard in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and that the

record on direct appeal does not support an ineffective-assistance-of-counsel claim.



                                            7
      Because we conclude that the record on this direct appeal is inadequate to

establish that Appellant’s right to testify was violated, we overrule Appellant’s first

issue regardless of whether Strickland or McCoy controls.

A. The decision to testify is a constitutional right that is the defendant’s alone
 to make, and an allegation that the right has been violated has traditionally
        been brought as an ineffective-assistance-of-counsel claim.

      A criminal defendant has a constitutional right to testify in his defense,

including during the punishment phase of the trial. Rock v. Arkansas, 483 U.S. 44, 52,

107 S. Ct. 2704, 2709 (1987); Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App.

2009); Pady v. State, 908 S.W.2d 65, 68 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

This right can be knowingly and voluntarily waived only by the defendant, not his

counsel. Smith, 286 S.W.3d at 338 n.9. 2

      In Johnson v. State, the court of criminal appeals decided that it is not the trial

court but “defense counsel [who] shoulders the primary responsibility to inform the

defendant of his right to testify, including the fact that the ultimate decision belongs

to the defendant.” 169 S.W.3d 223, 235 (Tex. Crim. App. 2005). Thus, Johnson held

that “Strickland provides the appropriate framework for addressing an allegation that

the defendant’s right to testify was denied by defense counsel.” Id. Johnson further


      2
         One commentator has explained that the lawyer disciplinary rules track with
these constitutional entitlements and “provide that in the criminal defense context, a
lawyer must abide by the client’s decisions about the plea to enter, whether to waive
jury trial, and whether to testify.” W. Bradley Wendel, Autonomy Isn’t Everything: Some
Cautionary Notes on McCoy v. Louisiana, 9 ST. MARY’S J. LEGAL MALPRACTICE & ETHICS
92, 98 (2018) (citing Model Rules of Prof’l Conduct r. 1.2(a) (Am. Bar Ass’n 2018)).

                                           8
held that because a complete denial of the right to testify at trial is not a structural

defect but is the type of violation that can be subjected to a harm/prejudice inquiry,

“the usual Strickland prejudice analysis applies: the defendant must show a reasonable

probability that the outcome of the proceeding would have been different had his

attorney not precluded him from testifying.” Id. at 239.

        Therefore, since Johnson, Texas law has required that a defendant’s complaint

that his right to testify was denied by his counsel be reviewed under an ineffective-

assistance-of-counsel framework, which requires a sufficient record to show both

deficient performance and prejudice. See Carballo v. State, 303 S.W.3d 742, 751 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Johnson in recognizing that “the

Court of Criminal Appeals has held that the Strickland ineffective assistance of counsel

test provides the appropriate framework for addressing an allegation that the

defendant’s right to testify was denied by his defense counsel”); Roberts v. State, No.

08-12-00112-CR, 2014 WL 1513122, at *3 (Tex. App.—El Paso Apr. 16, 2014, no

pet.) (not designated for publication) (“When a defense attorney prevents a defendant

from testifying on his own behalf, we use the Strickland framework to address the

allegation counsel was ineffective in allowing the defendant to exercise his right to

testify.”).

        An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432

                                           9
(Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an opportunity

to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at

593. If trial counsel did not have that opportunity, we should not conclude that

counsel performed deficiently unless the challenged conduct was “so outrageous that

no competent attorney would have engaged in it.” Nava v. State, 415 S.W.3d 289, 308

(Tex. Crim. App. 2013). Direct appeal is usually inadequate for raising an ineffective-

assistance-of-counsel claim because the record generally does not show counsel’s

reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at 592–93;

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).

  B. We need not decide whether McCoy or Turner establishes a new rule to
               review an alleged denial of the right to testify.

      Appellant contends a new standard applies to a claimed denial of the right to

testify because the court of criminal appeals disregarded the Strickland standard in

Turner v. State, No. AP-76,580, 2018 WL 5932241 (Tex. Crim. App. Nov. 14, 2018),

and thus overruled Johnson. Turner, he argues, adopted a standard derived from the

United States Supreme Court’s holding in McCoy. According to Appellant, the court

of criminal appeals now views a defendant’s failure to testify through the defendant-

autonomy prism of McCoy rather than the competence-of-counsel prism of Strickland

(and Johnson).3 We cannot agree.


      3
        The pivotal difference if Appellant is correct is that, unlike an ineffective-
assistance-of-counsel error under Johnson and Strickland, which is not considered a
structural error and thus also requires a showing of harm to be reversible, a client-

                                          10
       Last year in McCoy, the United State Supreme Court reversed the defendant’s

conviction for capital murder and remanded the case when the defendant’s counsel

conceded the defendant’s guilt against the defendant’s clear objections to the contrary.

138 S. Ct. at 1512. McCoy held that the Sixth Amendment guarantees to a defendant

“the right to insist that counsel refrain from admitting guilt, even when counsel’s

experience-based view is that confessing guilt offers the defendant the best chance to

avoid the death penalty.” Id. at 1505. McCoy further stated, “When a client expressly

asserts that the objective of ‘his defen[s]e’ is to maintain innocence of the charged

criminal acts, his lawyer must abide by that objective and may not override it by

conceding guilt.” Id. at 1509. McCoy explained that maintaining one’s innocence is an

objective of representation and not merely an issue of trial tactics, so it is a decision

reserved for the client, not the attorney. Id.

       In Turner, the court of criminal appeals addressed a capital murder case with

“striking” similarities to McCoy. 2018 WL 5932241, at *20. The similarities were that

in both capital murder cases, the defendant’s trial counsel’s strategy was to concede

that the defendant had killed the victims and argue that because the defendant was

guilty of a lesser offense, he should not get the death penalty. Id.; see McCoy, 138 S. Ct.

at 1506. The record supported that the defendant objected to this strategy because he


autonomy error under McCoy and Turner would be considered structural, requiring no
showing of harm and resulting in automatic reversal and remand for a new trial. See
Turner, 2018 WL 5932241, at *21 (reversing and remanding for new trial when the
appellant both preserved and established his McCoy claim).

                                            11
maintained that he was innocent and that he did not want to concede killing the

victims. Turner, 2018 WL 5932241, at *20; see McCoy, 138 S. Ct. at 1506. Therefore,

Turner concluded that structural error had occurred because McCoy controlled, the

appellant had preserved his McCoy claim, and McCoy was violated because the

appellant had made it known repeatedly on the record of his desire not to concede

that he had killed the victims but his counsel ignored his desire. 2018 WL 5932241, at

*20. The error required reversal and remand for new trial. Id. at *21.

      We conclude that neither McCoy nor Turner has implicitly overruled Johnson, and

we see no implicit conflict between McCoy or Turner and Johnson.4

                                     C. Analysis

      But, in any event, we need not resolve a question of a conflict between McCoy

or Turner and Johnson in order to resolve this appeal. The record in McCoy and Turner

clearly established that counsel acted contrary to the client’s wishes. The same is not

true in this case. The record in our appeal does not tell us whether Appellant was

actually deprived of his right to testify and if he was persuaded not to testify, what

      4
        But even assuming arguendo that McCoy and Turner conflict with Johnson, they
still would not necessarily control. The instant case does not involve a defendant
who, during the guilt/innocence phase of a capital murder trial, wanted to maintain
his innocence and clearly objected to his counsel’s refusal to advance such a defense
by conceding that the defendant had actually committed the charged offense. Cf.
Turner, 2018 WL 5932241, at *21; McCoy, 138 S. Ct. at 1509. Here, the supposed
violation occurred during the punishment phase after Appellant had already entered a
guilty plea and conceded guilt and without any on-the-record objection from
Appellant. At this point, the court of criminal appeals has not applied the principles
of McCoy to the right to testify in a noncapital case or in the procedural context of the
instant case.

                                           12
prompted his change of heart. If he were steadfast in his desire to testify, McCoy

might arguably apply. If he wavered in his desire to testify because of the advice of

his counsel, Strickland might continue to apply.

       Here, unlike several other cases where an appellant waited until appeal to

express his or her desire to testify, there is some indication in our record that

Appellant initially wanted to testify.5 When asked sua sponte by the trial court,

Appellant stated that he wanted to testify. But there is also a follow-up discussion

that reflects that Appellant and his counsel were still discussing the issue. And after

that, the record is silent. The record we have to review does not establish the fact that

is essential to Appellant’s claim—that he wished to testify on his own behalf and was

prevented from doing so, or if talked out of doing so, the nature of the advice that

prompted his decision.

       Numerous cases support our conclusion that a record silent on the question of

whether counsel’s actions frustrated a defendant’s desire to testify makes it impossible

to resolve Appellant’s claim on direct appeal, no matter the standard we apply. See

Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005) (“[A]ppellant’s assertions


       5
         See, e.g., Grumbles v. State, No. 05-13-00369-CR, 2014 WL 3907994, at *2 (Tex.
App.—Dallas Aug. 12, 2014, no pet.) (mem. op., not designated for publication)
(“Nor does the record contain . . . appellant’s complaint about not being called as a
witness, or a ruling from the trial court denying him his right to testify.”); Rice v. State,
No. 05-07-00704-CR, 2008 WL 3522243, at *3 (Tex. App.—Dallas Aug. 14, 2008, pet.
ref’d) (not designated for publication) (“[Appellant’s] outbursts in the courtroom do
not constitute testimony, and he never affirmatively stated he wished to take the stand
to testify.”).

                                             13
in his brief on appeal, in the absence of anything in the trial record, are insufficient to

show that he asserted his right to testify and his attorney failed to protect it.”); Brown

v. State, No. 08-12-00026-CR, 2014 WL 172521, at *5 (Tex. App.—El Paso Jan. 15,

2014, pet. ref’d) (not designated for publication) (finding no deficient performance

when “Appellant did not provide any affirmative evidence that his lawyer refused to

let him testify”); Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *6 (Tex.

App.—Dallas Aug. 19, 1998, pet. ref’d) (refusing to find deficient performance when

the defendant did not testify after counsel initially told the jury that he would because

the “ambiguity of the conclusions to be drawn from the record” about the

defendant’s desire to testify required the reviewing court to engage in rank

speculation). Again, even if McCoy applied to the deprivation of the right to testify,

our record does not establish a deprivation of that right.

      Moreover, the record is silent as to how the advice and actions of his counsel

impacted Appellant’s desire or ability to testify, i.e., whether it was part of an agreed

trial strategy, or a strategy pursued in disregard of Appellant’s wishes. With a silent

record and applying a Strickland standard, we can find ineffective assistance of counsel

only if the challenged conduct was “so outrageous that no competent attorney would

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

The failure to call a defendant or any witness to testify during a punishment trial is not

on its face so outrageous that it represents deficient performance. See Brown, 2014 WL

172521, at *5.      Accordingly, the deficient-performance prong of Appellant’s

                                            14
ineffective-assistance-of-counsel claim cannot be sustained in this appeal’s posture.

See Esparza v. State, No. 08-12-00007-CR, 2014 WL 97301, at *7 (Tex. App.—El Paso

Jan. 10, 2014, no pet.) (not designated for publication) (“The record shows that

Appellant and his attorney spoke after the State rested its case, but based on the

record, we do not know what advice Appellant received from his attorney about his

right to testify. Moreover, there is nothing in the record demonstrating that Appellant

was not allowed to testify or that he wanted to testify.”); Stuckwisch v. State, No. 08-16-

00098-CR, 2017 WL 3725811, at *6 (Tex. App.—El Paso Aug. 30, 2017, no pet.) (not

designated for publication) (“[W]here the record is silent as to whether defense

counsel advised a defendant to testify or not, . . . a claim of ineffectiveness under this

theory has not been affirmatively demonstrated in the record and cannot be

sustained.”).

       Assuming that the prejudice prong of Strickland applies, Appellant has also

failed to demonstrate the prejudice prong of his ineffective-assistance-of-counsel

claim because he presents no argument or citations to the record to support what he

would have testified about, or that had he testified, the outcome would have been

different. See Dukes v. State, 486 S.W.3d 170, 182 (Tex. App.—Houston [1st Dist.]

2016, no pet.) (op. on reh’g) (“[A] claim that trial counsel deprived the defendant of

his right to testify must be supported by evidence in the record that the defendant

would have testified, and of what the defendant would have said.”); Calderon v. State,

No. 03-15-00442-CR, 2016 WL 3144175, at *2 (Tex. App.—Austin June 2, 2016, no

                                            15
pet.) (mem. op., not designated for publication) (overruling the appellant’s sole issue

that her right to testify was violated because “there is no indication in the record that

if counsel had questioned [the appellant] on the record regarding whether she was

waiving her right to testify, she would have decided to exercise that right”); see also

Carballo, 303 S.W.3d at 751 (rejecting similar ineffective-assistance claim because “it is

not possible to determine whether the result of the punishment proceeding would

have been different if defense counsel had questioned appellant regarding his version

of the events”).

      Accordingly, we overrule Appellant’s first issue.

               IV. CONSIDERING PAROLE IN JURY DELIBERATIONS

      In his second issue, Appellant argues that the jury’s questions submitted to the

trial court demonstrate that the jurors improperly considered parole during their

deliberations. Although Appellant concedes that the trial court’s instruction was

“accurate with regard to how parole eligibility is charged,” he contends that the jury’s

questions demonstrated that they disregarded this instruction, so it was necessary for

the trial court not only to refer back to the charge but also to provide additional

“curative” instruction as well.

                                  A. Applicable Law

      A jury’s communications with the trial court are governed by article 36.27 of

the code of criminal procedure, and we review a trial court’s responses for an abuse of

discretion. See Tex. Code Crim. Proc. Ann. art. 36.27. Article 36.27 requires the trial

                                           16
court to answer communications from the jury and to give additional instructions on

questions of law requested by the jury when the request is proper. Id. If the request is

not proper, the trial court should so inform the jurors by referring them to the court’s

charge. Id.; Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972).

      “Under Texas law, parole is not a proper topic for jury deliberation.” Colburn v.

State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998); see also Tex. Code Crim. Proc. Ann.

art. 37.07, § 4. And, while the court of criminal appeals has recognized that a jury

note regarding parole “suggests that jurors are ‘discussing’ and ‘considering’ parole,

. . . [n]ot every mention of parole . . . warrants a drastic remedy.” Colburn, 966 S.W.2d

at 519. Therefore, to show that a jury’s discussion of the parole law constitutes

reversible error, it must be shown that there was (1) a misstatement of the law,

(2) asserted as a fact, (3) by one professing to know the law, (4) which is relied upon

by other jurors, and (5) who for that reason changed their vote to a harsher

punishment. Id. at 519–20; Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984).

                                     B. Analysis

      As an initial matter, Appellant has failed to preserve this alleged error because

his trial counsel did not object when the trial court read the proposed response to the

jury’s note in open court and submitted the written response to the jury. See Diehl v.

State, No. 04-07-00608-CR, 2008 WL 2260833, at *2 (Tex. App.—San Antonio June

4, 2008, no pet.) (mem. op., not designated for publication) (“The record here does

not demonstrate that Diehl objected to the trial court’s answers to the jury questions;

                                           17
therefore, he failed to preserve error.”); Saddler v. State, No. 01-95-00390-CR, 1996

WL 111845, at *4 (Tex. App.—Houston [1st Dist.] Mar. 14, 1996, pet. ref’d) (not

designated for publication) (“[A]n objection in the record or a bill of exception is

necessary to preserve error concerning the trial court’s communications with the jury

during its deliberation.” (citing Harris v. State, 736 S.W.2d 166, 166–67 (Tex. App.—

Houston [14th Dist.] 1987, no pet.))). Accordingly, nothing is presented for our

review. See Diehl, 2008 WL 2260833, at *2.

      Assuming arguendo that the complaint was preserved, we must consider whether

the trial court erred. The jury note is some evidence that at some preliminary point in

their deliberations the jury may have improperly considered or discussed parole. See

Colburn, 966 S.W.2d at 519. We agree with the parties—including Appellant—that the

jury charge accurately instructed the jurors not to consider how parole law may apply

to Appellant. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4. Therefore, the trial

court’s response that the jurors had all of the available law and evidence and to refer

back to the charge in continuing their deliberations was neither additional instruction

nor error. See Fuentes v. State, No. 02-15-00356-CR, 2016 WL 6277369, at *6–7 (Tex.

App.—Fort Worth Oct. 27, 2016, pet. ref’d) (mem. op., not designated for

publication) (holding no error when trial court informed the jury that it could not

respond to a question when the original charge had already correctly instructed the

jurors on their question); Reidweg v. State, 981 S.W.2d 399, 402 (Tex. App.—San

Antonio 1998, no pet.) (op. on reh’g) (explaining that a communication between the

                                          18
trial court and jury that violates Article 36.27 but “does not constitute an additional

instruction by the court upon the law or some phase of the case . . . is not reversible

error”).

        Moreover, it is a rebuttable presumption that the jurors follow the trial court’s

instructions in the manner presented. See Williams v. State, 937 S.W.2d 479, 490 (Tex.

Crim. App. 1996) (holding the jury is presumed to follow the court’s instructions as

given); Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). At best for

Appellant, this record demonstrates that the jury had improperly considered parole at

some preliminary point in deliberations. But the trial court’s response referred the

jury to the trial court’s charge which had correctly instructed the jury not to consider

parole regarding Appellant, so Appellant was required to set forth evidence to rebut

the presumption that the jury followed the trial court’s instructions in response to the

note.

        Appellant has pointed to no evidence to rebut the presumption that the jury

followed the trial court’s instruction by reviewing the charge and continuing their

deliberations without considering how parole law may apply to Appellant. Indeed,

Appellant did not file a motion for new trial alleging juror misconduct or obtain a

hearing to adduce facts not in the record. See Colburn, 966 S.W.2d at 520.

        Accordingly, we overrule Appellant’s second issue.




                                           19
                                 V. CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

                                                    /s/ Dabney Bassel

                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 7, 2019




                                         20
