AFFIRM; and Opinion Filed June 3, 2013.




                                          S
                                      In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-00415-CR

                           MARIO ERNESTO CHAVEZ, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the 194th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F10-25414-M

                                           OPINION
                        Before Justices Lang-Miers, Murphy, and Fillmore
                                   Opinion by Justice Fillmore
       A jury found Mario Ernesto Chavez guilty of continuous sexual abuse of a child and

assessed punishment of seventy-five years’ imprisonment. In three issues on appeal, Chavez

asserts the trial court erred by failing to give a punishment phase “curative” instruction to the

jury concerning consideration of parole, and that he received ineffective assistance of counsel

because his attorney failed to request the instruction or object to the trial court’s failure to give

the instruction. We affirm the trial court’s judgment.
                                                                Background 1

          A jury found Chavez guilty of the continuous sexual abuse of his niece, a child under the

age of fourteen. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2012). During punishment

deliberations, the jury sent the following note to the trial court:

          ─Is parole an option
          ─With life sentence, when is defendant eligible for parole
          ─What is the earliest date defendant is eligible for parole with the 25 year sentence
          ─When/if released from prison, is defendant deported
          ─Is any time served to date credited towards his sentence

          In response, the trial court returned a note to the jury which stated, “You have all the law.

Please continue your deliberations.” The record contains no objection by Chavez to the trial

court’s note to the jury, nor any request by Chavez that the trial court send a note to the jury

containing alternate language.                      The jury assessed punishment of seventy-five years’

imprisonment. See § 21.02(h) (offense under section 21.02 is punishable by imprisonment for

life, or for any term of not more than ninety-nine years or less than twenty-five years).

          Chavez filed this appeal of the punishment assessed by the jury. Chavez contends that

once the trial court became aware that the jury was discussing the parole implications of his

sentence, the court erred by failing to give a “curative” instruction to the jury that it should not

consider parole, and that, by his counsel’s failure to request the trial court to give a curative

instruction or to object to the trial court’s failure to give a curative instruction, he received

ineffective assistance of counsel. Chavez contends the case should be remanded to the trial court

for a new punishment hearing.




     1
       Chavez does not challenge any aspect of the guilt/innocence phase of the trial, including sufficiency of the evidence to support his
conviction. Therefore, we recite only the facts necessary to address Chavez’s complaints on appeal.



                                                                  –2–
                                    Failure to Give Jury Instruction

       In his first issue, Chavez contends the trial court erred by failing to give a curative

instruction that the jury was not to consider parole in response to the jury’s questions regarding

parole during the punishment deliberations. The State responds Chavez failed to preserve this

issue for appeal, and the trial court was not required to give the jury an instruction regarding

parole where Chavez was found guilty of continuous sexual abuse of a child.

       Chavez did not object to the trial court’s response to the jury’s note, nor did Chavez

request that the trial court respond to the jury’s note by informing the jury that it may not

consider the effects of parole during its punishment deliberations. Therefore, Chavez has failed

to preserve that complaint for appellate review. See TEX. R. APP. P. 33.1. However, Chavez

contends that when the trial court became aware that the jury was discussing the parole

implications of its sentence, the court erred by failing sua sponte to inform the jury that it may

not consider the effects of parole during its punishment deliberations.

       The trial court is required to give the jury a written charge “setting forth the law

applicable to the case; not expressing any opinion as to the weight of the evidence, not summing

up the testimony, discussing the facts or using any argument in his charge calculated to arouse

the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2007). Article 37.07, section 4 of the code of criminal procedure provides the instructions that

trial courts are required to give juries to inform them about the law of parole. See TEX. CODE

CRIM. PROC. ANN. art. 37.07, § 4 (West Supp. 2012). In explaining the Legislature’s intent

regarding the provisions of article 37.07, the court of criminal appeals has explained that “the

Legislature did not want any creative deviations from its chosen language” regarding parole law

instructions; consequently, trial judges cannot “cut and paste as they see fit.” Luquis v. State, 72

S.W.3d 355, 363 (Tex. Crim. App. 2002).

                                                –3–
       Article 37.07, section 4, provides that the language generally required in a charge

addressing the law of parole does not apply to offenses arising under section 21.02 of the penal

code, offenses arising under section 22.021 of the penal code that are punishable under section(f)

of that section, or to capital felonies. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4. Section

508.145(a) of the government code provides that a person serving a sentence for continuous

sexual abuse of a young child is not eligible for release on parole. TEX. GOV’T CODE ANN.

§ 508.145(a) (West 2012). Chavez was convicted of continuous sexual abuse of a child, a

violation of section 21.02 of the penal code. See TEX. PENAL CODE ANN. § 21.02(b). Thus, the

instructions to inform a jury about the law of parole contained in article 37.07 do not apply to

Chavez.

       In Cross v. State, No. 09-11-00406-CR, 2012 WL 6643832 (Tex. App.—Beaumont Dec.

19, 2012, pet. ref’d) (mem. op., not designated for publication), a jury convicted the defendant of

continuous sexual abuse of a child. The defendant complained on appeal that the trial court erred

when it denied his request to include an instruction in the jury charge given in the punishment

phase of the trial advising the jury that he would not be eligible for parole. Id., 2012 WL

6643832, at *4. The appellate court concluded the trial court did not err by refusing the

defendant’s requested instruction concerning his ineligibility for parole. Id. at *5. The court

noted “[t]he Court of Criminal Appeals has expressed its reluctance to deviate from statutory

instructions that are prescribed by the Legislature.” Id. at *4 (citing Luquis, 72 S.W.3d at 364)).

“The Court of Criminal Appeals has indicated that generally, special, non-statutory instructions

have no place in the charge.” Id. at *4; see also Walters v. State, 247 S.W.3d 204, 211 (Tex.

Crim. App. 2012) (“special, non-statutory instructions, even when they relate to statutory

offenses or defenses, generally have no place in the jury charge”). In Cross, the instruction the

defendant requested “about the potential effect of a conviction on his eligibility for parole was a

                                               –4–
special, non-statutory instruction.” Cross, 2012 WL 6643832, at *4. The Legislature has not

provided for such an instruction in prosecutions for continuous sexual abuse of a child, and,

consequently, the appellate court concluded the trial court did not err in refusing the instruction

the defendant requested. Id.; 2 see also Allaben v. State, 418 S.W.2d 517, 520 (Tex. Crim. App.

1967) (no error under article 36.27 of code of criminal procedure where trial court’s oral

statement to jury amounted to refusal to answer jury question; referral to original charge does not

constitute an additional instruction).

           At submission, Chavez’s counsel acknowledged Chavez was not claiming the law

required that an instruction on parole be included in the jury charge. Instead, Chavez contends

that once the trial court received the jury’s note and became aware that the jury was discussing

parole implications of its sentencing decision, the court had an obligation sua sponte to provide a

curative instruction that the jury was not to consider the effects of parole. However, Chavez has

not cited us to any appellate court opinion, nor are we aware of any appellate court opinion,

holding that a trial court sua sponte must provide such a special, non-statutory curative

instruction in a section 21.02 case. 3 We conclude the trial court did not err by failing sua sponte

to provide a special, non-statutory curative instruction to the jury that it may not consider the

effects of parole. See Cross, 2012 WL 6643832, at *4. We resolve Chavez’s first issue against

him.

     2
       See also Guzman v. State, No. 04-03-00548-CR, 2004 WL 2168626 (Tex. App.—San Antonio Sept. 29, 2004) (mem. op., not designated
for publication), aff’d, 188 S.W.3d 185 (Tex. Crim. App. 2006). In Guzman, during deliberations on punishment, the jury sent out a note
containing questions regarding payment of a fine. The trial judge’s written response to the jury stated, “Ladies and gentleman, I am not allowed
to answer your questions. Simply read the charge and follow the law and instructions in the charge. Continue your deliberations.” 2004 WL
2168626, at *2. The San Antonio appellate court concluded the trial court’s response to the jury’s questions was proper and within the trial
judge’s discretion under article 36.27 of the code of criminal procedure. Id.
     3
        Chavez asserts Ramos v. State, 831 S.W.2d 10 (Tex. App.—El Paso 1992, pet. ref’d) is “instructive.” However, Ramos is distinguishable
from this case. In Ramos, the defendant failed to request that the statutory instruction on parole be included in the jury charge. Id. at 17. On
appeal, the Ramos court held that even if a defendant fails to request the statutory instruction on parole, failure to give a “curative” instruction is
error when the jury raises a question about parole during deliberations and the defendant requests an instruction at that point. Id. at 17–18. In
this case, Chavez was not entitled to the statutory instruction on parole in the jury charge. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4.
Further, Chavez did not object to the trial court’s response to the jury’s note concerning parole. Accordingly, we do not find Ramos “instructive”
with respect to our resolution of this appeal. See Gilstrap v. State, No. 14-01-01186-CR, 2002 WL 31718482, at *1 (Tex. App.—Houston [14th
Dist.] Dec. 5, 2002, no pet.) (not designated for publication) (distinguishing Ramos, where jury inquired about parole during deliberations, but
defendant in aggravated robbery case did not request the statutory instruction on parole upon receiving the jury’s note).



                                                                        –5–
                                    Ineffective Assistance of Counsel

       In his second and third issues, Chavez argues he received ineffective assistance of

counsel because his attorney neither objected to the trial court’s failure to give a curative

instruction to the jury nor requested the jury be given a curative instruction that it was not to

consider the effects of parole “after it [became] clear that the jury [was] considering the parole

implications of its sentence.”

       We examine ineffective assistance of counsel claims by the standard set out in Strickland

v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56–57

(Tex. Crim. App. 1986). The first prong of Strickland requires the defendant to show counsel’s

performance fell below an objective standard of reasonableness under prevailing professional

norms. Strickland, 466 U.S. at 687–88; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App.

2009). The second prong of Strickland requires the defendant to show there is a reasonable

probability that, but for his counsel’s errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 687; Ex parte Lane, 303 S.W.3d at 707. A defendant’s failure

to satisfy the first prong negates the need to consider the second prong. Strickland, 466 U.S. at

697; Ex parte Lane, 303 S.W.3d at 707.

       We have concluded with regard to Chavez’s first issue that the trial court did not err by

failing sua sponte to provide a special, non-statutory curative instruction regarding parole in

response to the jury’s questions. Therefore, we conclude there was no error by Chavez’s trial

counsel in failing to object to the trial court’s failure to give a curative instruction to the jury or

to request the jury be given a curative instruction that it was not to consider the effects of parole

during its punishment deliberations. Because Chavez cannot satisfy the first prong of Strickland,

we resolve Chavez’s second and third issues against him. See Townsley v. State, No. 05-11-




                                                 –6–
00921-CR, 2012 WL 6634679, at *4 (Tex. App.—Dallas Dec. 21, 2012, no pet.) (mem. op., not

designated for publication).

                                               Conclusion

       We affirm the trial court’s judgment.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE

Do Not Publish
Tex. R. App. P. 47

120415F.U05




                                               –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MARIO ERNESTO CHAVEZ, Appellant                      On Appeal from the 194th Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-00415-CR         V.                        Trial Court Cause No. F10-25414-M.
                                                     Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                         Justices Lang-Miers and Murphy
                                                     participating.

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


Judgment entered this 3rd day of June, 2013.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE




                                               –8–
