Affirmed as Modified; Opinion Filed August 1, 2013.




                                              In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                       No. 05-12-01158-CR

                           CLAUDE CHARLES POWELL, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 1
                                    Dallas County, Texas
                            Trial Court Cause No. F11-62508-H

                              MEMORANDUM OPINION
                              Before Justices Lang, Myers, and Evans
                                     Opinion by Justice Lang

          Claude Charles Powell appeals from his jury conviction and twenty-year sentence for

sexual assault of a child. His sole argument is that the trial court’s erroneous parole instruction

egregiously harmed him. We disagree. Because we have found the trial court’s judgment

incorrectly reflects the date the offense occurred, we modify the judgment. As modified, we

affirm.

                                       I. BACKGROUND

          The record reflects fourteen year old L.R. was waiting for a bus when Powell approached

her and offered her a ride. Although L.R. refused, Powell grabbed a bag L.R. was holding and

placed it in his car. When L.R. went into the car to retrieve the bag, Powell drove off. Powell

told L.R. he would take her home, but instead drove to a park where he assaulted her.
          At the punishment phase of trial, the prosecutor presented a video recording of Powell’s

interview with the investigating officer. The recording shows Powell told the officer he met L.R.

at a house party and any encounter with her was “consensual. The recording also shows Powell

speaking generally about women in a derogatory and disrespectful manner. In addition, L.R.

testified that she had recurrent nightmares about the assault, could not focus at school, and had

withdrawn from her friends. The prosecutor also presented evidence that Powell had two prior

felony convictions and ten prior misdemeanor convictions.

          The defense presented the testimony of Powell’s mother and Powell. Powell testified he

was twenty-nine years old, had a high school education, and worked as a tattoo artist. He

admitted to some of the prior convictions proven by the State, but disputed others. He also

disputed he assaulted L.R. and denied he had “ever dealt with her before.”                                                   Asked what

happened the night of the assault, Powell provided a confusing explanation about being pulled

over by the police and going to a party where one of the other guests had the same first name as

L.R.

          Powell’s mother apologized to L.R. and asked the jury for leniency. She testified Powell

had been in special education classes at school, could read and write only at a third grade level,

dropped out of school in ninth grade, and was unable to hold a job.

          In accordance with section 4(a) of article 37.07 of the Texas Code of Criminal Procedure,

the jury was generally instructed on the law of parole.1 See TEX. CODE CRIM. PROC. ANN. art.



   1
       The jury was instructed as follows:
                      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.



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37.07, § 4(a) (West Supp. 2012). Powell’s sole complaint stems from the following paragraph in

the court’s charge:

              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. Eligibility for parole does not
       guarantee that parole will be granted.

The prosecutor made no reference to parole in his argument to the jury, focusing instead on the

record and urging the maximum twenty-year sentence. See TEX. PENAL CODE ANN. §§ 12.33(a),

22.011(f) (West 2011). Defense counsel reminded the jury not to consider the manner in which

parole law may be applied to Powell and argued “that the only appropriate thing to do is, that the

number of years that you wish Mr. Powell to be down in prison, is the number you give him.”

       As stated, the jury assessed a twenty-year sentence.

                                             II. PAROLE INSTRUCTION

       Pursuant to section 4(a) of article 37.07, the paragraph about which Powell complains

should have included the following italicized language to read as follows:

               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. If the defendant is
       sentenced to a term of less than four years, he must serve at least two years before
       he is eligible for parole. Eligibility for parole does not guarantee that parole will
       be granted.




                  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. Eligibility for parole does
       not guarantee that parole will be granted.

                    It cannot be accurately 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.




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Powell did not object to the court’s charge at trial, but asserts now that where “significant and

compelling evidence of the defendant’s mental health problems [exist],” failing to instruct the

jury that good conduct time would not be considered as part of required prison time “amounted

to egregious harm.” The State does not dispute the court’s charge was erroneous, but argues in

response that Powell was not harmed.

                                         A. Standard of Review

       A reviewing court’s first duty in analyzing a jury charge issue is to determine whether

error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found, the

reviewing court then analyzes the error for harm. Id. “Objected-to-error” is reviewed for some

harm,” while “unobjected-to-error” is reviewed for “egregious harm.” Jennings v. State, 302

S.W.3d 306, 311 (Tex. Crim. App. 2010) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g)). In assessing whether the error caused egregious harm, the

reviewing court considers (1) the entire jury charge, (2) the state of the evidence, (3) arguments

of counsel, and (4) any other relevant information contained in the record as a whole. See

Gelinas v. State, 398 S.W.3d 703, 705-06 (Tex. Crim. App. 2013); Stewart v. State, 293 S.W.3d

853, 856-60 (Tex. App.—Texarkana 2009, pet. ref’d).        The reviewing court will conclude the

error was egregiously harmful if it affected the very basis of the case, deprived the defendant of a

valuable right, or vitally affected a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex.

Crim. App. 2007); Stewart, 293 S.W.3d at 856.

                                           B. Applicable Law

        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). When a

defendant is found guilty of sexual assault of a child, and the jury assesses punishment, the trial

court is statutorily mandated to include the prescribed parole and good time instruction in its

                                                –4–
charge. See TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 4(a), 42.12, § 3(g)(a)(1); see also

Stewart, 293 S.W.3d at 856. This instruction explains generally the concepts of good conduct

time and parole; states the defendant’s eligibility for parole is one-half the actual sentence, or

thirty years, whichever is less, without consideration of any good conduct time earned; and states

that no one can predict whether parole or good time might be applied to the defendant. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 4(a); Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App.

2002). On appeal, the reviewing court presumes the jury followed these instructions as given.

Luquis, 72 S.W.3d at 366.

                                               C. Application of Law to Facts

          No dispute exists the charge was erroneous. See TEX. CODE CRIM. PROC. ANN. arts.

37.07, § 4(a). The sole question is whether the error egregiously harmed Powell. Powell bases

his argument that it was on the “undeniable evidence that [he] suffered from serious mental

health issues.”2 Section 4(a) of article 37.07 of the code of criminal procedure, however, applies

to all defendants convicted of sexual assault of a child, regardless of their mental state. See id.

Moreover, although the charge given to the jury failed to state that any good conduct time earned

would not be considered in determining Powell’s eligibility for parole, the omission of this

language did not suggest that good conduct time earned would affect parole eligibility. To the

contrary, the language that Powell would not become eligible until the “actual time served”

equals one-half of the sentence imposed reflects no consideration is to be given to any good

conduct time earned.                Further, nothing in the record suggests the jury did not follow the

instruction, or defense counsel’s argument, admonishing it not to consider how parole law might

be applied to Powell. See Luquis, 72 S.W.3d at 366. The jury did not send out any notes


     2
        According to Powell, this evidence includes his “nonsensical” and false testimony and his mother’s testimony that he could not read or
write, had a ninth grade education, and could not hold a job. We express no opinion as to Powell’s mental state.



                                                                    –5–
indicating or expressing confusion about good conduct time or parole, and nothing in the record

indicates the jury gave any undue attention to the parole law. Finally, although the jury assessed

the maximum sentence, the jury saw and heard the attitude Powell displayed toward women

during his interview with the investigating officer, heard L.R.’s impact testimony, and was

presented with twelve prior convictions. This evidence offers sufficient support to explain the

jury’s assessment of punishment without suggesting harm from the charge.

       Considering the entire charge, the state of the evidence, counsel’s arguments, and the

record as a whole, we cannot conclude the trial court’s partial omission of the statutorily

mandated instruction deprived Powell of a valuable right. See Igo v. State, 210 S.W.3d 645, 647-

48 (Tex. Crim. App. 2006) (concluding erroneous parole instruction did not cause egregious

harm even though maximum sentence assessed where charge contained admonishing language,

parole law not mentioned in closing argument, and evidence relating to punishment was

exceptionally strong); Stewart, 293 S.W.3d at 856-60 (same - remaining charge was 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 Powell’s sole

issue against him.

                            III. MODIFICATION OF JUDGMENT

       We note the judgment incorrectly reflects the offense occurred November 29, 2011

instead of May 2, 2011. Accordingly, we modify the judgment to reflect the correct date of the

offense. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.3d 526, 529-30 (Tex. App.—

Dallas 1991, pet. ref’d).




                                               –6–
                                        IV. CONCLUSION

              As modified, we affirm the trial court’s judgment.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47
121158F.U05




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

CLAUDE CHARLES POWELL, Appellant                    On Appeal from the Criminal District Court
                                                    No. 1, Dallas County, Texas
No. 05-12-01158-CR         V.                       Trial Court Cause No. F11-62508-H.
                                                    Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                        Myers and Evans participating.

         Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment to
reflect the date of the offense as May 2, 2011. As modified, we AFFIRM the judgment.


Judgment entered this 1st day of August, 2013.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE




                                              –8–
