Affirmed and Opinion Filed April 24, 2015




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-14-00281-CR

                                         JOE BARRY FERGUSON, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                                On Appeal from the 291st Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F-1235370-U

                                         MEMORANDUM OPINION
                                 Before Justices Francis, Lang-Miers, and Whitehill
                                            Opinion by Justice Whitehill
          Jo Barry Ferguson pled guilty to sexual assault of a child and the jury assessed

punishment at fifteen years’ imprisonment. In a single issue on appeal, Ferguson argues he was

egregiously harmed by the jury charge’s misstatement of his parole eligibility. We conclude

Ferguson was not egregiously harmed and affirm the trial court’s judgment.

                                                              BACKGROUND

          Ferguson sexually assaulted the complainant on several occasions, beginning when the

child was eleven years old. The offense at issue here occurred in Dallas County. The remaining

offenses occurred in Travis County.1



     1
       Ferguson pled guilty to the Travis County offenses and was sentenced to four years’ imprisonment for indecency with a child by contact
and six years’ community supervision for indecency with a child by exposure.
          Ferguson was charged with sexual assault of a child in this case. He pled guilty and

elected to have the jury assess punishment. After hearing the evidence, the jury sentenced

Ferguson to fifteen years’ imprisonment and a $10,000 fine.

          Ferguson moved for a new trial, and timely perfected this appeal. The motion for new

trial was overruled by operation of law.

                                               ANALYSIS

A. Issue on Appeal and Standard of Review

          Appellant contends that he suffered egregious harm because the jury charge erroneously

advised the jury about his eligibility for parole. Our first duty when analyzing a jury-charge issue

is to decide whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

If error exists, we then determine whether the error caused sufficient harm to warrant reversal.

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). The State concedes the charge

was error, and we agree.

          When, as here, the error was not objected to, the error must be “fundamental” and

requires reversal “only if it was so egregious and created such harm that the defendant ‘has not

had a fair and impartial trial.’” See 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. 1985) (op. on reh’g)).

Egregious harm exists when the record shows that a defendant has suffered actual, rather than

merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013); Almanza, 686 S.W.2d at 174. Egregious harm consists of error affecting the very

basis of the case, depriving the defendant of a valuable right, or vitally affecting a defensive

theory. Nava, 415 S.W.3d at 298 (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App.

2011)).




                                                –2–
B. Was Ferguson egregiously harmed?

       Ferguson contends he was egregiously harmed because of the potential for the jury to

sentence him more harshly “to compensate for what it could perceive as the possibility that he

might otherwise be released from prison too soon due to ‘good conduct time.’” See Luquis v.

State, 72 S.W.3d 355, 362 (Tex. Crim. App. 2002). We assess the alleged harm in light of “the

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

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

the record of the trial as a whole.” Nava, 415 S.W.3d at 298.

                                     The Charge as a Whole

       The purpose of the jury charge is to inform the jury of the relevant law and guide them in

applying that law. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). Because

Ferguson was found guilty of sexual assault of a child and the jury was to assess punishment, the

trial court was required to include an instruction on parole in the charge. See TEX. CODE CRIM.

PROC. ANN. art. 37.07 § 4(a) (West 2014); see also Powell v. State, No. 05-12-01158-CR, 2013

WL 3951621, at *3 (Tex. App.—Dallas Aug. 1, 2013, no pet.) (mem. op. not designated for

publication). The statutory instruction reads:

       Under the law applicable in this case, if the defendant is sentenced to a term of
       imprisonment, the defendant 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 the defendant may earn. If
       the defendant is sentenced to a term of less than four years, the defendant must
       serve at least two years before the defendant 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) (emphasis added). Instead, the trial court

erroneously submitted the following instruction:

       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.
       Eligibility for parole does not guarantee that parole will be granted.
                                                 –3–
          Thus, the jury was erroneously informed that Ferguson’s good conduct time would

expedite his eligibility for parole.2 We consider this error in conjunction with the remainder of

the charge.

          The charge informed the jury that the range of punishment for this offense was “not more

than 20 years or less than two years” and “a fine not to exceed $10,000.” The charge also

included a limiting instruction informing the jury that they were not to consider good conduct

time or how parole law might be applied to Ferguson. This instruction, which immediately

follows the erroneous instruction, states:

                     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 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 and are no concern of yours.

          We presume the jury follows the instructions given in the charge. Luquis, 72 S.W.3d at

366.; Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). And a curative instruction, in

combination with other factors, may cure any error. See Igo, 210 S.W.3d at 647; Soria v. State,

No. 07-10-0061-CR, 2012 WL 1570969, at *7 (Tex. App.—Amarillo April 27, 2012, pet. ref’d)

(mem. op. not designated for publication).

          Ferguson, however, relies on a Texarkana Court of Appeals’ decision to argue that the

misstatement of the law affected the jury’s idea of when Ferguson was eligible for parole and

misled the jury about parole and good conduct time. See Hill v. State, 30 S.W.3d 505, 508–09
     2
      The jury should have been instructed that Ferguson would not become eligible for parole until the actual time served, without considering
good conduct time, equaled one-half of the sentence imposed. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (West Supp. 2014); Igo v. State,
210 S.W.3d at 646.




                                                                    –4–
(Tex. App.—Texarkana 2000, no pet.). In Hill, the court reasoned that because the jury had been

misled, an instruction not to consider how parole law applied to the defendant would not cure the

error. Id.; but see Newman v. State, 49 S.W.3d 577, 581 (Tex. App.—Beaumont 2001, pet. ref’d)

(observing that curative instruction prevents harm by warning jury that it cannot consider parole

and good conduct in assessing the sentence).

        But in a subsequent case, the Texarkana Court of Appeals seemed to distance itself from

Hill. Relying on Ross v. State, 133 S.W.3d 618, 618 (Tex. Crim. App. 2004), a decision that had

not issued at the time of Hill, the Court held that an erroneous parole instruction did not cause

egregious harm. See Taylor v. State, 146 S.W.3d 801, 813 (Tex. App.—Texarkana 2004, pet.

ref’d) (citing Ross, 133 S.W.3d at 618).

       Ross was a capital case where trial counsel objected to the parole instruction. Therefore,

the standard of review required only a showing of “some harm.” Id. The Ross court considered

the curative instruction in the charge and that nothing in the record suggested that the jury tried

to apply what they were told about parole. Id. at 624. The Court also noted that the jury did not

express any confusion about the issue, and that the argument of counsel correctly informed the

jury that a life sentence would require the defendant to serve at least forty years in prison. Id. As

a result, the Court concluded that there was not a reasonable likelihood that the charge misled the

jury into believing that the defendant would be released from prison in less than forty years. Id.

       Ross is also persuasive here. There is nothing to suggest that the jury did not follow the

court’s instruction regarding the consideration of good time and parole. There is also no evidence

that the jury expressed any confusion about the court’s instructions. Although Ferguson argues

these factors are not dispositive, these are nonetheless factors to consider. See Ross, 133 S.W.3d

at 624. The charge as a whole does not weigh in favor of a finding of egregious harm.




                                                –5–
                                   The State of the Evidence

       Ferguson signed a judicial confession and entered an open plea of guilty before the jury.

The victim testified that after his father died, Ferguson began helping his mother by taking him

to school and extracurricular activities. The victim would stay at Ferguson’s house, and would

spend the night once or twice a month. Ferguson bought a play station video game for the victim

to use while he was there. He also bought a boat, and would take the victim and his sister to the

lake, and he bought the victim an air gun.

       The victim was eighteen years’ old when he testified, and stated that the abuse began

when he was about eleven years old. The contact began with Ferguson putting his hands inside

the victim’s pants, and occurred on multiple occasions. Eventually, Ferguson stuck his thumb in

the victim’s anus.

       When the latter incident occurred, the victim was fourteen or fifteen years old and was

spending the night at Ferguson’s house. The victim cried silently during the assault and prayed

that it would end. The next day, when Ferguson drove him home, the victim fell asleep in the car.

He awakened when he felt someone touching his hand, and he discovered that his hand had been

placed in Ferguson’s lap and was touching his penis.

       The victim became angry a lot and started skipping school. The abuse has made him not

trust people. He has gone to counseling, but does not like talking about the abuse.

       The victim’s mother testified about the outcry. The victim had refused to go with his

mother and sister on a trip to Ferguson’s condominium and had been fighting with his mother.

He wrote a letter to his mother explaining that he did not want to go because Ferguson had been

abusing him. The letter was admitted into evidence and read for the jury.




                                               –6–
         The State introduced evidence of Ferguson’s convictions for the Travis County offenses.

Specifically, the judgment of conviction for indecency with a child by contact and the judgment

for indecency with a child by exposure were admitted into evidence.

         The attorney who represented Ferguson in Travis County testified for the defense. He

reported that Ferguson had asked about counseling and he insisted on accepting the plea bargain

so that the victim would not have to testify. The lawyer believed Ferguson showed genuine

remorse.

         The defense called a counselor and sex offender treatment provider who counseled

Ferguson for about nine months. She opined that Ferguson was very motivated in his treatment.

She also testified that it is a “long term process” for victims to overcome the effects of sexual

abuse.

         The defense also called a psychologist who performed a risk assessment on Ferguson.

The psychiatrist opined that Ferguson has a low overall probability for committing a new sexual

offense.

         Viewing the evidence as a whole, it offers sufficient support to explain the jury’s

assessment of punishment without suggesting harm from the charge.

                                     Argument of Counsel

         Neither the State nor the defense mentioned either parole or good time credit during

argument. The State asked for the maximum sentence of twenty years. The defense emphasized

testimony demonstrating that Ferguson has a low risk of re-offending and his “prognosis for

treatment is outstanding.” The defense also argued that Ferguson is a caring, loving, seventy-one

year-old individual and had been diligent about adhering to the conditions of his bond. The

defense asked for a sentence of four years or less. Neither argument weighs in favor of or against

a conclusion of harm.

                                               –7–
                                  Other Relevant Information

       The range of punishment for sexual assault of a child, a second degree felony, is

imprisonment “for any term of not more than 20 years or less than 2 years” and a “fine not to

exceed $10,000.” See TEX. PENAL CODE ANN. § 12.33 (West 2011); TEX. PENAL CODE ANN.

§22.011(f) (West 2011). The jury assessed punishment at fifteen years’ imprisonment and a

$10,000 fine, less than the maximum sentence requested by the State. This fact weighs against

Ferguson’s argument that he was egregiously harmed. See Hogan v. State, 440 S.W.3d 211, 218

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

                                          III. CONCLUSION

       In light of the entire charge, the state of the evidence, counsel’s arguments, and the record

as a whole, we conclude that the trial court’s erroneous statement of the statutorily mandated

instruction did not deprive Ferguson of a valuable right. See Igo, 210 S.W.3d at 647–48 (holding

erroneous parole instruction did not cause egregious harm although maximum sentence was

assessed where charge contained admonishing language, parole law not mentioned in closing

argument, and evidence regarding punishment was exceptionally strong); Stewart v. State, 293

S.W.3d 853, 856–60 (Tex. App.—Texarkana 2009, pet. ref’d) (concluding remainder of charge

correct and included admonishing language, nothing suggested jury acted on erroneous language

or had any question concerning application or meaning of parole law, and counsel’s arguments

emphasized to jury that it was not to consider parole law in assessing punishment). We resolve

Ferguson’s sole issue against him. The trial court’s judgment is affirmed.


                                                     /Bill Whitehill/
Do Not Publish                                       BILL WHITEHILL
TEX. R. APP. P. 47                                   JUSTICE
140281F.U05




                                               –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOE BARRY FERGUSON, Appellant                      On Appeal from the 291st Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00281-CR        V.                       Trial Court Cause No. F-1235370-U.
                                                   Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                       Justices Francis and Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered April 24, 2015.




                                             –9–
