                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-214-CR


BRIAN TERRELL NORWOOD                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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            FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION 1

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      In a single point, appellant Brian Terrell Norwood argues that the trial

court erred during the punishment phase of trial by omitting from the jury

instructions a portion of the statutorily required instruction regarding parole and

that this error harmed him. We will affirm.

      The jury found Norwood guilty of murder. During the punishment phase,

the trial court read its charge on punishment to the jury. Although the specific



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          … See Tex. R. App. P. 47.4.
language of the jury charge is mandated by article 37.07 of the Texas Code of

Criminal Procedure, the court omitted one phrase in its parole instruction. See

Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2008). Norwood

did not object to this omission. The jury then assessed Norwood’s punishment

at the maximum, ninety-nine years’ imprisonment and a $10,000 fine. The trial

court sentenced Norwood accordingly.

      The code of criminal procedure requires a specific jury charge to be given

when a defendant like Norwood has been found guilty of murder, part of which

reads:

      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.

Id. (emphasis added).

      Here, the trial court’s instructions to the jury omitted the phrase “without

consideration of any good conduct time he may earn.” Id. Norwood argues

that without this phrase, a rational juror would believe that good conduct would

be taken into account in calculating his parole and that, therefore, he could

receive parole sooner.     Consequently, Norwood contends that the jurors

assessed a higher sentence for Norwood than they would have had they

received the proper instruction.

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      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred.        If it did, we must then evaluate

whether sufficient harm resulted from the error to require reversal.         Id. at

731–32.

      If there is error in the court’s charge but the appellant did not preserve it

at trial, we must decide whether the error was so egregious and created such

harm that appellant did not have a fair and impartial trial—in short, that

“egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19

(Vernon 2007); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008);

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm

is the type and level of harm that affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory. Allen,

253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex.

Crim. App. 2006); Almanza, 686 S.W.2d at 172.

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial

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as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d

at 172–74. The purpose of this review is to illuminate the actual, not just

theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious

harm is a difficult standard to prove and must be determined on a case-by-case

basis. Ellison v. State, 86 S.W .3d 226, 227 (Tex. Crim. App. 2002); Hutch,

922 S.W.2d at 171.

      The State agrees that the trial court committed error by excluding the

above-mentioned mandatory language in its parole instruction. Thus, because

Norwood failed to preserve error, the issue on appeal is whether he suffered

egregious harm. See Almanza, 686 S.W.2d at 171.

      The jury charge on punishment instructed the jury that parole eligibility

will be based on “actual time served.”     It also instructed the jury “not to

consider the extent to which good conduct time may be awarded to or forfeited

by this particular defendant” and “not to consider the manner in which the

parole law may be applied to this particular defendant.”        During closing

argument, Norwood’s defense counsel explained to the jury how the parole

instruction works,

      “In your Jury Charge, let’s talk about Instruction No. 2, what they
      call the parole law instruction. Whatever sentence you decide
      upon, at least half of that would be served day per day. Now, ten
      years he’d have to serve at least five years, day for day, before



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      he’s even eligible for parole. Twenty years, he will get 10 years
      day per day. That’s when he becomes eligible.”

Defense counsel also reiterated the fact that the jury is “not to consider the

extent to which [parole] is to be awarded.”

      Absent evidence that the jury did not follow the court’s instructions in the

charge, we presume the jury did follow the instructions and therefore did not

consider parole in assessing punishment. Lamberto v. State, No. 02-07-00070-

CR, 2008 WL 2168122, at *4 (Tex. App.—Fort Worth May 22, 2008, pet.

ref’d) (not designated for publication) (citing Hooper v. State, 255 S.W.3d 262,

271 (Tex. App.—Waco 2008, pet. ref’d) (holding that when there are no

indications to the contrary, the presumption that the jury followed the trial

court’s instructions prevails)).

      In his brief, Norwood illustrates the theoretical harm that he could have

suffered by describing what the jurors could have thought regarding parole and

argues that a reasonable juror could have assessed a higher sentence to

compensate for any good conduct time he may receive.            But he does not

demonstrate that he incurred any actual harm. See Almanza, 686 S.W.2d at

174 (requiring a review of the actual, not just theoretical, harm to the accused);

see also Shavers v. State, 985 S.W.2d 284, 292 (Tex. App.—Beaumont 1999,

pet. ref’d) (finding no egregious harm when nothing in the record indicated that



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the jury considered parole in assessing punishment). Norwood received the

maximum sentence, but this fact alone does not establish that he suffered

egregious harm.    See Hooper, 255 S.W.3d at 272 (noting that “[c]ourts

generally agree that the parole instruction was designed to favor the State and

to increase sentences”).

      After reviewing the record, we hold that the trial court’s error in the jury

charge was not egregious. See Almanza, 686 S.W.2d at 171. We overrule

Norwood’s sole point and affirm the trial court’s judgment.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: CAYCE, C.J.; WALKER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 23, 2009




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