
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


M E M O R A N D U M   O P I N I O N

		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
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
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.
 
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. 
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,
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
