                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00027-CR


                      ROBERT ANTHONY PEREZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 19th District Court
                                 McLennan County, Texas
            Trial Court No. 2012-401-C1, Honorable Ralph T. Strother, Presiding

                                  November 13, 2013

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant Robert Anthony Perez appeals his convictions on three counts of

failure to stop and render aid. He pled guilty and his punishment was assessed by a

jury at fifteen years on each count. In challenging his convictions, he contends 1) the

jury charge was in error because it implied that a person can be released early without

parole supervision due to good conduct time, 2) the jury charge improperly instructed

the jury not to consider sympathy in its deliberations, and 3) the judgments are in error
because they show that appellant was convicted of a second degree felony. We modify

the judgments and, as modified, affirm them.1

        Issue 1 – Jury Charge on Good Conduct Time

        In his first issue, appellant claims language in the jury charge implied that he

might obtain early release on the basis of good conduct time without reference to

parole.      This, according to appellant, could have caused the jury to give a longer

sentence. We overrule the issue.

        The instruction alluded to is that required by article 37.07 § 4(c) of the Code of

Criminal Procedure regarding good conduct time and parole.2                       A like argument was


        1
           This appeal being transferred from the Tenth Court of Appeals, we are obligated to apply
precedent of the latter court when addressing the issues at hand. TEX R. APP. P. 41.3 (requiring the Court
of Appeals to which a case is transferred to decide the case in accordance with the precedent of the
transferor court).
        2
            The instruction mandated by article 37.07 Sec.4(c) reads:

        Under the law applicable in 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.

        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-fourth of the sentence imposed. 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.

TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(c) (West Supp. 2012).

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expressly rejected by the Tenth Court of Appeals in Lopez v. State, No. 10-12-00282-

CR, 2013 Tex. App. LEXIS 1229, at *3-4 (Tex. App.—Waco February 7, 2013, pet.

ref’d) (not designated for publication) (overruling the issue that the jury charge should

have been supplemented to explain that good conduct time is tied to parole). We are

bound by that precedent at bar.

       Issue 2 – Instruction on Sympathy

       Next, appellant contends that the directive appearing in the jury charge

instructing the jury to forego the consideration of “sympathy” in its deliberations was

error. We overrule the issue for it too has been rejected by the Tenth Court of Appeals

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

Indeed, the Court of Criminal Appeals also stated that "anti-sympathy charges are

appropriate in that they properly focus the jury’s attention on those factors relating to the

moral culpability of the defendant.” Prible v. State, 175 S.W.3d 724, 737 (Tex. Crim.

App. 2005).

       Issue 3 – Error in Judgments

       Finally, appellant asserts that the judgments are in error because they show he

was convicted of a second degree felony as opposed to a felony of the third degree.

The State concedes the mistake, and we sustain the argument.

       The offense of failing to stop and render aid is a third degree felony.          TEX.

TRANSP. CODE ANN. § 550.021(C)(1) (West 2011) (stating the punishment is

imprisonment in the Department of Criminal Justice for not more than five years or

confinement in the county jail for not more than one year and a fine not to exceed

$5,000); TEX. PENAL CODE ANN. § 12.41(1) (West 2011) (stating that any conviction not



                                             3
obtained from prosecution under the Penal Code for which imprisonment in the

Department of Criminal Justice is a possibility is a felony of the third degree). However,

his punishment was enhanced to that applicable to a second degree felony due to a

prior conviction. Because a prior conviction does not increase the grade of the offense

but rather the punishment level, Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App.

2011), reformation of the judgments is appropriate.

      Accordingly, we modify the judgments to reflect that appellant was charged with

and convicted of a felony of the third degree and, as modified, affirm them.




                                                       Per Curiam


Do not publish.




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