MODIFY and AFFIRM; and Opinion Filed November 4, 2016.




                                                       S
                                           Court of Appeals
                                                           In The


                                    Fifth District of Texas at Dallas
                                                     No. 05-16-00369-CR

                                             TIRAY I. OATES, Appellant
                                                        V.
                                           THE STATE OF TEXAS, Appellee

                                On Appeal from the 265th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F-1576109-R

                                          MEMORANDUM OPINION
                                     Before Justices Fillmore, Brown, and Richter 1
                                              Opinion by Justice Fillmore

          A jury found appellant Tiray I. Oates guilty of aggravated robbery with a deadly weapon

and assessed punishment of seventeen years’ confinement.                    In two points of error, Oates

contends there was insufficient evidence that he used a firearm during the commission of the

robbery and the punishment phase jury charge erroneously deleted portions of mandatory jury

instructions regarding good-conduct time. We modify the judgment. As modified, we affirm the

judgment.

                                                        Background

          Oates was charged with a June 24, 2015 aggravated robbery of the complainant A.M. 2 in

Dallas, Texas, by “intentionally and knowingly, while in the course of committing theft of


   1
       The Hon. Martin Richter, Justice, Assigned.
property and with intent to obtain or maintain control of said property, threaten[ing] and

plac[ing] [A.M.] in fear of imminent bodily injury and death, and defendant used and exhibited a

deadly weapon: to-wit: A FIREARM.” The jury rejected the lesser-included offense of robbery,

found Oates guilty of aggravated robbery with a deadly weapon as charged in the indictment, and

assessed punishment of seventeen years’ confinement. Oates filed this appeal.

                                                      Sufficiency of the Evidence

             Oates does not contend the evidence was insufficient to find him guilty of robbery. In

fact, in his appellate brief, Oates states he “and two of his friends, twin brothers D.K. and K.K., 3

committed a robbery around 10:00 p.m. on June 24, 2015.” In his first point of error, Oates

asserts the evidence was insufficient to support his conviction for aggravated robbery.

Specifically, Oates contends there was insufficient evidence that “the object [Oates] used during

the robbery,” which was not recovered after the robbery, “was actually a firearm.”

                                                             Standard of Review

             We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App.

2016). We examine all the evidence in the light most favorable to the verdict and determine

whether any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson, 443 U.S. at 319; Fernandez, 479 S.W.3d at 837–38. This standard

recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011). The factfinder is entitled to judge the credibility of the witnesses, and can choose to

     2
         In this opinion, we identify the minors A.M., F.W., M.W., and J.R. by their initials.
     3
       Although the record does not establish whether D.K. and K.K. were minors, their initials are used in appellant’s brief, implying they were
minors. Therefore, we have also referred to them in this opinion by their initials.



                                                                         –2–
believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012) (“The factfinder exclusively determines the weight and credibility of the

evidence.”).

            We defer to the factfinder’s determinations of credibility, and may not substitute our

judgment for that of the factfinder. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d

289, 303 (Tex. Crim. App. 2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in

conducting legal sufficiency analysis, appellate court “may not re-weigh the evidence and

substitute our judgment for that of the jury”). When there is conflicting evidence, we must

presume the factfinder resolved the conflict in favor of the verdict, and defer to that resolution.

Jackson, 443 U.S. at 326; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016).

Circumstantial evidence is as probative as direct evidence and, alone, can be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Evidence is

sufficient if “the inferences necessary to establish guilt are reasonable based upon the cumulative

force of all the evidence when considered in the light most favorable to the verdict.” Wise, 364

S.W.3d at 903. A verdict of guilt will be upheld if the evidence is sufficient on any one of the

theories submitted. See Hooper, 214 S.W.3d at 14.

                                                                Discussion 4

            Complainant A.M. testified that on the night of June 24, 2015, he was walking through a

breezeway between two apartment buildings with F.W., M.W., Trey, 5 and A.M.’s cousin, J.R.

Twin brothers, D.K. and K.K., approached and attempted to rob A.M. of his wallet, money, cell


     4
        Oates has not challenged the sufficiency of the evidence that he robbed A.M. on June 24, 2015. Therefore, we recite only those facts
necessary to address Oates’s point of error on appeal that there was insufficient evidence he exhibited or used a firearm during the commission of
that robbery.
     5
         Trey’s surname is not included in the record.



                                                                      –3–
phone, and car keys. One of the twins pushed A.M. into some bushes. A.M. began fighting

back, and F.W. and J.R. tried to help him. Oates, who was with D.K. and K.K., “pulled a gun”

and placed it on J.R.’s chest and stated, “It ain’t worth your life.” A.M. indicated the gun Oates

was holding as looked like a “police gun.” A.M. said the top portion of the gun was gray and he

could see his reflection on that part of the pistol. A.M. described the gun as a semiautomatic

pistol; it was not a revolver and looked different than a pellet or “soft air gun.” A.M. testified the

hole in the barrel of the gun was larger than the hole in the barrel of a pellet gun. A.M. indicated

he had seen a real gun before. The gun Oates held looked like a real gun to A.M., and there was

no doubt in his mind the gun Oates pulled out was a real gun. A.M. could tell the gun was made

of a hard material and it hurt when Oates put the gun to J.R.’s chest. A.M. feared for his life and

surrendered his personal belongings, including his car keys. A.M. stated he would not have

surrendered his personal belongings if he had thought Oates had displayed a fake gun.

       J.R. testified that when he came around the corner of the breezeway between the

apartment buildings, A.M. was fighting with one of the twins and the other twin kicked A.M.

J.R. tried to help A.M., and Oates pulled out a gun and placed the barrel of the gun to J.R.’s

chest. After Oates placed the gun to J.R.’s chest, he said, “Move around,” and “something about

losing your life.” J.R. stated he felt pain from having the gun pressed into his chest but also

stated it did not hurt. To J.R., the gun did not feel like a plastic BB gun or “air soft gun”; it felt

to him like a real gun. J.R. stated he did not really remember what the gun looked like, but he

had been around pellet or BB guns, and the gun Oates used did not resemble a pellet or BB gun.

J.R. testified he knew the gun was a real handgun. In an affidavit signed after the incident, J.R.

described Oates’s gun as gray on the top and black on the bottom.

       F.W. testified that when he tried to grab the twin who was fighting with A.M., Oates

pulled out a gun. F.W. stated Oates put the barrel of the gun to J.R.’s head. F.W. testified the

                                                 –4–
gun Oates used looked real to him, but F.W. acknowledged he does not know whether the gun

was real or fake.

       A person commits aggravated robbery if, during the course of a robbery, the person uses

or exhibits a deadly weapon. TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The penal

code defines a “deadly weapon” as “a firearm or anything manifestly designed, made, or adapted

for the purpose of inflicting death or serious bodily injury” or “anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17) (West

Supp. 2016). “Use” of a deadly weapon during the commission of the offense means the deadly

weapon “was employed or utilized in order to achieve its purpose.” Patterson v. State, 769

S.W.2d 938, 941 (Tex. Crim. App. 1989)). To “exhibit” a deadly weapon means the weapon

was “consciously shown or displayed during the commission of the offense.” Id.

       When, as here, the State alleges in an indictment for aggravated robbery that the deadly

weapon used by the defendant was a firearm, it is required to prove use of a firearm beyond a

reasonable doubt. See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985); Cruz v.

State, 238 S.W.3d 381, 388 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). A jury may make

the reasonable inference from the victim’s testimony that the “gun” used in the commission of a

crime was, in fact, a firearm. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979)

(jury may draw reasonable inference that a deadly weapon has been used from witness testimony

using the terms “gun,” “pistol,” or “revolver”); Joseph v. State, 681 S.W.2d 738, 739 (Tex.

App.—Houston [14th Dist.] 1984, no pet.) (absent any specific indication to the contrary at trial,

a “gun” is a firearm); Riddick v. State, 624 S.W.2d 709, 711 (Tex. App.—Houston [14th Dist.]

1981, no pet.). Threatening the victim with a gun, “in itself suggests that it is a firearm rather

than merely a gun of the non-lethal variety,” such as “BB guns, blow guns, pop guns, and grease

guns.” Cruz, 238 S.W.3d at 388–89 (citing O’Briant v. State, 556 S.W.2d 333, 336 (Tex. Crim.

                                                –5–
App. 1977)); see also Davis v. State, 180 S.W.3d 277, 286 (Tex. App.—Texarkana 2005, no

pet.) (victim testified defendant pointed a gun at her and she was afraid she was going to die;

appellate court found this presented sufficient evidence for jury to find weapon used was a

firearm).

       Viewing the evidence in the light most favorable to the jury’s verdict, the evidence, and

reasonable inferences that can be drawn from the evidence, were sufficient for the jury to find

the gun Oates used or exhibited in the robbery was, in fact, a firearm. See Wright, 591 S.W.2d at

459; Cruz, 238 S.W.3d at 388–89; Davis, 180 S.W.3d at 286. We conclude a rational juror could

have found beyond a reasonable doubt that Oates used or exhibited a firearm during the robbery.

Accordingly, we resolve Oates’s first point of error against him.

                                        Jury Instructions

       In his second point of error, Oates asserts the trial court violated its duty to provide the

jury instruction statutorily mandated by article 37.07, section 4(a) of the code of criminal

procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2016). Oates

argues he was egregiously harmed by the incomplete version of the section 4(a) jury instruction

submitted to the jury, which omitted portions of the statutory instruction relating to good-conduct

time credits, because it erroneously conveyed he would receive good-conduct time credits and

“encouraged the jury to set [Oates]’s sentence with reference to its estimate of his non-existent

good conduct time credits.” The State acknowledges that the entire article 37.07, section 4(a)

instruction should have been given to the jury as mandated by statute but argues Oates was not

egregiously harmed by the error, and the omitted portion of the statutorily mandated section 4(a)

jury instruction benefitted, rather than harmed, Oates.




                                                –6–
                                       Standard of Review

       Our first duty in analyzing a jury charge issue is to decide whether error exists. Price v.

State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). In this case, the State concedes there was

error in the punishment phase jury instruction. Where error exists in the jury charge, we must

determine whether the error caused sufficient harm to warrant reversal. Ngo v. State, 175

S.W.3d 738, 743–44 (Tex. Crim. App. 2005). When, as in this case, the error was not objected

to, the error must be “fundamental” and requires reversal only if it was “so egregious and created

such harm that the defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453

S.W.3d 429, 433 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g)). Egregious harm exists when the record shows that a defendant

has suffered actual, rather than merely theoretical, harm from jury charge error. Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174. Egregious harm

consists of error affecting the very basis of the case, depriving the defendant of a valuable right,

or vitally affecting a defensive theory. Villarreal, 453 S.W.3d at 433. “Egregious harm is a

‘high and difficult standard’ to meet, and such a determination must be ‘borne out by the trial

record.’” Id. (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). In

examining the record to determine whether charge error has resulted in egregious harm to a

defendant, we consider “(1) the entirety of the jury charge, (2) the state of the evidence,

including the contested issues and weight of probative evidence, (3) the arguments of counsel,

and (4) any other relevant information revealed by the trial record as a whole.” Id. (citing

Almanza, 686 S.W.2d at 171).

                                            Discussion

       Having been convicted of the first-degree felony of aggravated robbery with a deadly

weapon, Oates was ineligible for mandatory supervision.            See TEX. GOV’T CODE ANN.

                                                –7–
§ 508.149(a)(1), (12) (West Supp. 2016); TEX. PENAL CODE ANN. § 29.03(b).                                                                Oates

acknowledges in his appellate brief that, because he was not eligible for release on mandatory

supervision, he could not receive good-conduct time credits. See Parker v. State, 119 S.W.3d

350, 356 (Tex. App.—Waco 2003, pet. ref’d) (“If an inmate is not released on parole, he may be

released on ‘mandatory supervision’ when his actual time served plus good conduct time equals

his sentence. But, for certain crimes, including aggravated robbery, or when there is an entry in

the judgment that a deadly weapon was used, ‘mandatory supervision’ is not available and so the

accumulation of good conduct time becomes irrelevant.”) (internal citations omitted). 6 Despite

Oates’s ineligibility for good-conduct time credit, the trial court was required to instruct the jury

in conformity with article 37.07, section 4(a) of the code of criminal procedure, including the

provisions of the statutory instruction regarding good-conduct time. See TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 4(a) (good-conduct time instruction is required in cases in which the jury

assesses punishment and the charged offense is listed in section 3g(a)(1) of article 42.12, or the

verdict contains affirmative finding deadly weapon was used or exhibited during commission of

felony offense); id. 42.12, § 3g(a) (West Supp. 2016); see also Cagle v. State, 23 S.W.3d 590,

593 (Tex. App.—Fort Worth 2000, pet. ref’d) (article 37.07 contains mandatory universal charge

applicable to all non-capital felonies listed under code of criminal procedure article 42.12,

section 3g(a)). 7

           The jury here should have been charged pursuant to article 37.07, section 4(a), which

provides:


     6
       See also James v. State, No. 05-02-01910-CR, 2003 WL 23024806, at *3 (Tex. App.—Dallas Dec. 30, 2003, pet. ref.’d) (not designated
for publication) (appellant convicted of aggravated robbery and aggravated kidnapping ineligible for good-conduct time credits).
     7
        See also Bohanon v. State, No. 05-01-01411-CR, 2003 WL 22462545, at *3 (Tex. App.—Dallas Oct. 31, 2003, no pet.) (not designated
for publication) (appellant who was ineligible for good-conduct time credit because of aggravated robbery conviction complained of jury charge
containing statutorily mandated article 37.07, section 4(a) language regarding good-conduct time credit; trial judge who follows legislative
mandate and instructs jury according to article 37.07, section 4(a) when defendant is not eligible for good-conduct time does not commit statutory
error).



                                                                      –8–
              “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, the defendant 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 the defendant 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.

              “It cannot accurately be predicted how the parole law and good conduct
       time might be applied to this defendant if 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(a). In pertinent part, the jury charge here provided:

              It is 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 equals one-half of the sentence imposed or 30 years, whichever is less.
       Eligibility for parole does not guarantee that parole will be granted.

               It cannot accurately be predicted how the parole law 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; however, you are not to
       consider the manner in which the parole law may be applied to this particular
       defendant.

                                               –9–
Although the trial court charged the jury on parole law, it failed to include statutorily mandated

instruction regarding good-conduct time. See Igo v. State, 210 S.W.3d 645, 646 (Tex. Crim.

App. 2006) (jury should have been instructed defendant would not become eligible for parole

until the actual time served, without considering good-conduct time, equaled one-half of the

sentence imposed). We agree with Oates that the jury instruction given by the trial judge was

erroneous because it did not comply with article 37.07, section 4(a) of the code of criminal

procedure.

          Oates did not object to the erroneous jury charge. Accordingly, we analyze whether the

error was so egregious and created such harm that it denied Oates a fair and impartial trial. See

Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (if defendant did not timely

object to jury instructions, then reversal is required only if the error was so egregious and created

such harm that defendant did not have a fair and impartial trial); Villarreal, 453 S.W.3d at 433.

When assessing harm arising from jury charge error, “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 as a whole.” Almanza, 686 S.W.2d at 171. In an unpublished

per curiam opinion, the court of criminal appeals has held that an appellate court improperly

limits its harm analysis when it does not address all of the Almanza factors. See Dougherty v.

State, PD-1411-05, 2006 WL 475802, at *1 (Tex. Crim. App. Mar. 1, 2006) (per curiam) (not

designated for publication) (citing Almanza, 686 S.W.2d at 157). 8                                     Therefore, our analysis

includes consideration of all four Almanza factors.




     8
       See also Davis v. State, No. 05-13-00200-CR, 2014 WL 1778269, at *12 (Tex. App.—Dallas May 1, 2014, pet. ref’d) (not designated for
publication).



                                                                 –10–
          The first Almanza factor requires consideration of the entire jury charge. See Almanza,

686 S.W.2d at 171. The only error Oates asserts in the punishment phase jury charge is the

omission of good-conduct time instructions contained in section 4(a) of article 37.07. The jury

was informed of the range of punishment; informed of the potential for community supervision;

instructed to limit its deliberations, under the law and evidence in the case, to the question of

punishment; admonished not to take into consideration Oates’s decision not to testify; and

instructed not to consider how parole may be applied to Oates when assessing punishment.

Absent evidence to the contrary, we presume the jurors understood and followed the trial court’s

instructions in the jury charge, see Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. Ap. 2011),

and Oates has failed to show otherwise.

          The article 37.07, section 4(a) jury instruction is designed to benefit the State, not the

defendant.        The instruction was designed to increase sentences by informing juries “good-

conduct time combines with actual time served to determine parole eligibility.” Grigsby v. State,

833 S.W.2d 573, 576 (Tex. App.—Dallas 1992, pet. ref’d); see also TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 4(a). As this Court stated in Grigsby, “[w]e fail to see how not giving a

charge meant to increase the length of a sentence harms an appellant.” Grigsby, 833 S.W.2d at

576. 9 Oates has failed to establish a reasonable probability that had the jury been provided the

complete article 37.07, section 4(a) instruction that included information regarding good-conduct

time, he would have received a lesser sentence. We cannot conclude the jury charge that omitted

references to good-conduct time credits for which Oates was not eligible harmed Oates. The jury

charge as a whole does not weigh in favor of concluding Oates was egregiously harmed.




     9
       See also Guzman v. State, No. 05-03-00465-CR, 2004 WL 406390, at *2 (Tex. App.—Dallas Mar. 5, 2004, pet. ref’d) (not designated for
publication) (it is the State, not the defendant, that benefits from the parole law instructions).



                                                                 –11–
       With respect to the second Almanza factor to be considered, the “state of the evidence,”

see Almanza, 686 S.W.2d at 171, Oates does not contend the evidence was insufficient to find

him guilty of robbery. In fact, in his appellate brief, Oates states that he and D.K. and K.K.

committed the robbery. The only challenge Oates presents concerning the sufficiency of the

evidence to support his conviction for aggravated robbery is whether the evidence was sufficient

for the jury to find that a firearm was used or exhibited during that robbery. After setting out the

testimony of A.M., J.R., and F.W. above, we concluded a rational juror could have found beyond

a reasonable doubt that Oates used or exhibited a firearm during the robbery.

       At the punishment phase of trial, evidence was admitted indicating that while Oates was

in jail following his arrest on this charge, he engaged in a physical altercation and joined a

“clique” of inmates who tried to take charge of the area where they were housed. The jury also

heard the testimony of Detective Ken Schwartz of the Dallas Police Department that Oates was a

member of a gang and that A.M., J.R., F.W., M.W., and Trey were not documented gang

members. Photographs admitted into evidence that Oates had posted on social media two

months before the robbery showed him posing with guns and making gang hand signs. The

photographs also showed what appeared to be marijuana. Oates stipulated to prior juvenile

adjudications for burglaries of a building and a house and making a terroristic threat, and those

juvenile adjudications were introduced into evidence.

       The jury convicted Oates of aggravated robbery, a first-degree felony. See TEX. PENAL

CODE ANN. § 29.03(b). The punishment range for the offense was life or a term of five to

ninety-nine years and a possible fine not to exceed $10,000. See id. § 12.32 (West 2011). The

jury assessed punishment of seventeen years’ confinement and no fine. That sentence falls at the

lower end of the range of punishment. The evidence admitted at the punishment phase of trial

provided ample support for the punishment assessed and does not suggest that harm resulted

                                               –12–
from the erroneous jury charge. This factor does not weigh in favor of concluding Oates was

egregiously harmed.

       The third Almanza factor pertains to the arguments of counsel. See Almanza, 686 S.W.2d

at 171. The State waived its right to proceed first with its punishment phase closing argument.

During the punishment phase closing argument of the defense, trial counsel emphasized Oates

was only twenty-one years old at the time of trial and requested the jury consider Oates’s age in

assessing punishment. Counsel stated the jury could send Oates to prison for the rest of his life,

but he did not think that would be appropriate and did not believe the State thought it would be

appropriate. Oates’s counsel asked that the jury assess a punishment of less than ten years’

confinement and recommend that the judge place Oates on probation. The prosecutor closed by

stating the punishment range for this offense was confinement for life or a term from five years

to ninety-nine years, but argued this case warranted an assessment of punishment “somewhere in

the middle” and this “isn’t a case for probation.” Like Oates’s counsel, the prosecutor noted

Oates is young, and the prosecutor stated, Oates is “going to come out of prison at some point”

still having “plenty of life ahead of him,” and “[w]hether he comes out in 40, or 50, or 35,

whatever age you guys decide is appropriate, he’ll come out with a lot of life ahead of him . . . .”

       Oates asserts that the prosecutor’s statement that Oates would come out of prison at

“whatever age you guys decide,” asked the jury “to set Oates’s release date according to [its]

estimate of [Oates]’s good conduct time credits.” However, neither Oates’s counsel nor the

prosecutor discussed parole law or good-conduct time, or Oates’s ineligibility for good-conduct

time, during their closing arguments. See Luquis v. State, 72 S.W.3d 355, 367 (Tex. Crim. App.

2002) (noting neither the prosecutor nor the defense attorney discussed good-conduct time in

argument or urged the jury to assess a greater or lesser sentence based upon any potential good-

conduct time credit). Rather, when referring to the fact the jury could sentence Oates to a prison

                                               –13–
term that would ensure he had life ahead of him once released, the prosecutor was simply

arguing the State’s position that the case warranted punishment “somewhere in the middle” of

the statutorily authorized term of five to ninety-nine years. We find nothing in the State’s

closing arguments indicating the State requested the jury to consider good-conduct time credits

in assessing Oates’s punishment.       The third Almanza factor does not weigh in favor of

concluding Oates was egregiously harmed.

       The fourth Almanza factor requires that we assess any other relevant information revealed

by the record of the trial as a whole that would have a bearing on whether Oates suffered

egregious harm. See Almanza, 686 S.W.2d at 171. Oates argues that a jury note sent to the trial

judge during the guilt–innocence phase of deliberations constitutes such “relevant information.”

During its deliberations concerning Oates’s guilt, the jury sent a note to the trial judge asking, “Is

there any way to find out now what the difference is between sentencing term for aggravated

robbery vs robbery?” The trial court responded in writing to the jurors that they had the law and

evidence applicable to the case. The fact jurors posed a question during guilt-innocence phase

deliberations concerning the statutory punishment ranges for the offenses of aggravated robbery

and robbery does not suggest Oates was egregiously harmed by the parole instruction contained

in the punishment phase jury charge. At the time the jury considered punishment, it had already

convicted Oates of aggravated robbery, and the punishment phase jury charge set forth the

proper range of punishment for the offense of aggravated robbery.                During the jury’s

deliberations on punishment, there was no communication between the jury and the trial judge

regarding the parole instruction or the possible application of parole law to Oates. See Lopez v.

State, 314 S.W.3d 70, 73 (Tex. App.—Waco 2010, no pet.) (op. on reh’g). Nothing in the record

suggests the jury discussed, considered, or attempted to apply any aspect of parole law to Oates

despite the judicial admonition in the jury charge not to do so. Oates has presented no evidence

                                                –14–
showing the jury was misled by the parole law charge actually given or increased his sentence

based on the absence of the portions of the article 37.07, section 4(a) instruction regarding good-

conduct time, for which he was not eligible. See Bolden v. State, 73 S.W.3d 428, 434 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (error in omitting “good conduct time” portion of

parole instruction in jury charge was not reversible because appellant did not identify any

“actual” harm, but instead relied upon mere speculation regarding what jury might have

considered). The fourth Almanza factor does not weigh in favor of concluding Oates was

egregiously harmed.

       Based on this record and in light of the Almanza factors, we are unable to conclude Oates

suffered egregious harm from the erroneous jury instruction concerning parole eligibility. Under

the standards necessary to show egregious harm, we conclude that the erroneous jury instruction

did not deprive Oates of a fair and impartial trial or affect the very basis of the case, deprive him

of a valuable right, or vitally affect a defensive theory. See Villarreal, 453 S.W.3d at 433. We

resolve Oates’s second point of error against him.

                                     Judgment Modification

       Where, as here, the record provides the necessary information to correct inaccuracies in a

trial court’s judgment, we have the authority to reform the judgment to speak the truth. TEX. R.

APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).

Our review of the record confirms the jury found Oates guilty of aggravated robbery using or

exhibiting a deadly weapon—a firearm—as charged in the indictment. The judgment incorrectly

reflects “N/A” as to “Findings on Deadly Weapon.” Accordingly, we modify the judgment to

reflect “Yes, Firearm” to the “Findings on Deadly Weapon.”




                                               –15–
                                         Conclusion

       The judgment of the trial court is modified to reflect “Yes, Firearm” to the “Findings on

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




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

160369F.U05




                                             –16–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TIRAY I. OATES, Appellant                          On Appeal from the 265th Judicial District
                                                   Court, Dallas County, Texas,
No. 05-16-00369-CR        V.                       Trial Court Cause No. F-1576109-R.
                                                   Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                       Justices Brown and Richter participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect “Yes, Firearm” to the “Findings on Deadly Weapon.” As MODIFIED, the judgment
is AFFIRMED.

       Judgment entered this 4th day of November, 2016.




                                            –17–
