                                     IN THE
                             TENTH COURT OF APPEALS

                                    No. 10-12-00264-CR

FREEMAN ARTHUR BROWN,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee



                              From the 19th District Court
                               McLennan County, Texas
                              Trial Court No. 2011-2088-C1


                             MEMORANDUM OPINION


          The jury convicted Freeman Arthur Brown of three counts of aggravated sexual

assault of a child and assessed punishment at confinement for life in each count. We

affirm.

                                          Jury Charge

          In his first issue, Brown argues that the trial court erred in not supplementing the

jury charge instruction on the effect of good conduct time. Article 37.07 of the Texas

Code of Criminal procedure states:
              Sec. 4. (a) In the penalty phase of the trial of a felony case … the
       court shall charge the jury in writing 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.

               "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.

             "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. PRO. ANN. art. 37.07 §4(a) (West Supp. 2012). The trial court instructed

the jury as required by Article 37.07 §4(a). Brown’s trial counsel did not object to the

charge.

       Brown argues that the instruction improperly implies that a person may be

released from prison early and without supervision solely due to accruing good

Brown v. State                                                                           Page 2
conduct time.     He contends that the trial court should have supplemented the

instruction to explain that good conduct time is tied to parole.

       We have previously decided this precise issue against Brown’s position, and we

are not persuaded to reconsider our ruling. See Paez v. State, No. 10-12-00091-CR, 2012

Tex.App. LEXIS 9121 (Tex. App. – Waco November 1, 2012, pet. filed); Mathews v. State,

No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30, 2012,

no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *3, (Tex.

App.—Waco June 27, 2012, no pet. h.). We overrule the first issue.

       In his second issue, Brown complains that the trial court erred in instructing the

jury during the punishment phase of the trial not to consider “sympathy” in its

deliberations. The trial court instructed the jury, “Do not let personal bias, prejudice,

sympathy or resentment on your part or any such personal emotion on your part enter

into your deliberations or affect your verdict in this case.”

       Brown did not object to the jury charge on this basis. We have also previously

decided this issue against Brown’s position, and we are not persuaded to reconsider our

ruling. See Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121 (Tex. App. –

Waco November 1, 2012, pet. filed); Mathews v. State, No. 10-12-00046-CR, 2012 Tex.

App. LEXIS7480 at *2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v. State, No.

10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at *4, (Tex. App.—Waco June 27, 2012, no

pet. h.). We overrule the second issue.




Brown v. State                                                                     Page 3
                                      Conclusion

       We affirm the trial court’s judgment.




                                         AL SCOGGINS
                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 11, 2013
Do not publish
[CRPM]




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