                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00129-CR

CHRISTOPHER LEE GAITHER,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2009-1606-C2


                         MEMORANDUM OPINION


      Christopher Gaither appeals from a conviction for possession of cocaine less than

one gram, for which he was sentenced to ten years in prison based on a prior felony

conviction. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010). Gaither complains

that the trial court erred by providing a misleading instruction regarding good conduct

time, erred in instructing the jury not to consider “sympathy” in assessing punishment,

and improperly assessed court appointed attorney’s fees. We find no error in the jury

charge as submitted.    Because the evidence was legally insufficient to sustain the

assessment of attorney’s fees, we modify the judgment to delete the award of attorney’s
fees.

Parole Law and Good Time Jury Charge Instruction

        Gaither complains in his first issue that the jury charge’s instructions regarding

parole and good time were erroneous in that the instruction allows the jury to consider

that a defendant might be released early but not on parole if sufficient good time is

accumulated. Gaither contends that the statutory language required to be set forth

pursuant to Code of Criminal Procedure article 37.07, section 4(a) in the jury charge is

insufficient and misleading.

Standard of Review for Charge Error

        We must first determine whether the charges as submitted to the jury were

erroneous and if so, we must then analyze these complaints utilizing the standards set

forth in Almanza v. State. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)

(citing Olivas v. State, 202 S.W.3d 137, 143-44 (Tex. Crim. App. 2006), citing Almanza v.

State, 686 S.W.2d 157 (Tex. Crim. App. 1985)).       Under Almanza, unobjected-to jury

charge error will not result in reversal of a conviction in the absence of “egregious

harm.” Almanza, 686 S.W.2d at 171. Because Gaither did not object to the jury charge, if

there is error, we must determine whether the improper instruction caused egregious

harm to Gaither.

        The Court of Criminal Appeals has determined that the instruction in question is

constitutional, mandatory, and has stated that the trial court is not authorized to alter


Gaither v. State                                                                    Page 2
the instruction from the precise language of article 37.07, section 4(a). See Luquis v. State,

72 S.W.3d 355, 363 (Tex. Crim. App. 2002) (“because the trial judge in this case

instructed the jury according to the legislative dictate expressed in article 37.07, section

4(a), he did not commit error.”). Gaither does not contend that the instruction did not

comply with the code of criminal procedure.           Because the instruction tracked the

mandatory statutory language, and there is nothing in the record to suggest that the

jury was confused about the instruction as given or that it considered parole and good

time improperly, we do not find that the trial court’s instruction was erroneous. We

overrule issue one.

Sympathy

        Gaither complains in his second issue that the trial court erred by instructing the

jury not to consider “sympathy” in its deliberations in the jury charge in the

punishment phase of his trial. Gaither did not object to the jury charge on this basis.

We have previously decided this issue against Gaither’s position and are not persuaded

to reconsider our ruling. See Lewis v. State, No. 10-09-00322-CR, 2011 Tex. App. LEXIS

6074 at *4 (Tex. App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for

publication); Turner v. State, No. 10-09-00307-CR, 2011 Tex. App. LEXIS 6072 at *4, (Tex.

App.—Waco Aug. 3, 2011, no pet.) (mem. op.) (not designated for publication); Wilson

v. State, 267 S.W.3d 215, 219-20 (Tex. App.—Waco 2008, pet. ref’d).             We overrule

Gaither’s second issue.


Gaither v. State                                                                        Page 3
Assessment of Attorney’s Fees

        In his third issue, Gaither complains that the evidence was insufficient for the

trial court to have assessed attorney’s fees in the judgment. The State agrees that the

evidence was insufficient in this regard. The trial court determined that Gaither was

indigent during the proceedings and no evidence was presented of any change in that

status. In accordance with the opinion of the Court of Criminal Appeals in Mayer v.

State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010), we agree that the evidence was

insufficient and the judgment should be modified to delete these assessments. Gaither’s

third issue is sustained.

Conclusion

        The evidence was legally insufficient for the trial court to have assessed

attorney’s fees in the judgment, therefore, that assessment is deleted and judgment is

rendered that the amount of costs owed by Gaither is $369.00. Having found no other

reversible error, we affirm the judgment as modified.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Modified, and Affirmed as Modified
Opinion delivered and filed June 27, 2012
Do not publish
[CR25]


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