                                   NO. 07-00-0069-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 11, 2001
                        ________________________________

                              COREY DUPREE HOGUES,

                                                       Appellant

                                            v.

                                THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

       FROM THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY;

               NO. F99-48707-RK; HON. LANNY RAMSEY, PRESIDING
                       _______________________________

Before BOYD, C.J., QUINN and JOHNSON, JJ.

      Corey Dupree Hogues appeals his conviction for unlawfully possessing a controlled

substance with the intent to deliver. Through one point, he contends that the trial court

erred when it omitted from its charge on punishment aspects of the requisite instruction on

parole. We affirm.

      Standard of Review

      Both the State and appellant acknowledge that the trial court was obligated to

include in its charge on punishment an instruction informing the jury of the minimum time

which appellant would have to serve before becoming eligible for parole. See TEX . CODE
CRIM . PROC . ANN . art. 37.07, §4 (Vernon Supp. 2001) (requiring such an instruction, among

other things, in particular charges). So too do both parties concede that 1) though the trial

court mentioned parole in its charge, nothing was said of the minimum time appellant had

to serve to be eligible for same and 2) appellant did not object to the omission at trial.

Under these circumstances, we must determine whether appellant suffered any egregious

harm due to the error.1 Cormier v. State, 955 S.W.2d 161, 164 (Tex. App.–Austin 1997,

no pet.). We further note that the burden to prove the existence of such harm lies with

appellant. Id.

        Application of Standard

        First, it is noted that appellant cites us to nothing of record indicating that the jury

considered, in any way, the likelihood appellant would receive parole. Nor did we find any

evidence indicating that it did. This may be so due to the instruction directed to the jury to

forego considering parole as it may relate to appellant. And, that the jurors were so

admonished tends to ameliorate any harm purportedly arising from the omission in

question. Arnold v. State, 786 S.W.2d 295, 310 (Tex. Crim. App. 1990); Grigsby v. State,

833 S.W.2d 573, 576 (Tex. App.–Dallas 1992, pet ref’d).

        Second, it is generally recognized that an instruction on parole benefits the State,

not the appellant. Grigsby v. State, 833 S.W.2d at 576; see Anders v. State, 973 S.W.2d

682, 686-87 (Tex. App.–Tyler 1997) (noting that the failure to charge the jury on parole law

benefits the appellant). This is so because the statutory instruction was designed to

increase the sentences levied by jurors through informing them about how good time


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          Appellant’s contention that the harm arising from error of this ilk cannot be assessed has been
rejec ted. Grigsby v. S tate, 833 S.W .2d 573, 576 (T ex. A pp.– Da llas 1992, pet ref’d).

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combines with actual time served to potentially reduce the actual time served. Grigsby v.

State, 833 S.W.2d at 576. Thus, as recognized by other courts, it is difficult to see how

omitting an instruction designed to harm the defendant actually harms him. Id.

       Third, the applicable range of punishment at bar was five to ninety-nine years with

up to a $10,000 fine. Though appellant sought probation, the jury assessed a twenty year

prison term and a $10,000 fine. As can be seen, the term of imprisonment levied was

approximately one-fifth of the term which could have been assessed. Moreover, the

amount of crack cocaine appellant possessed was not de minimis. Indeed, the 49 grams

involved was calculated to equal 490 “individual uses.”           Thus, because appellant

possessed an amount of contraband evincing his status as a “pusher” and the prison term

levied was relatively short (when compared to the term which the jury could have

assessed), it cannot be said that the sentence lacked factual support.

       Given that the omission conceptually benefitted appellant, that the court instructed

the jurors to forego consideration of parole as it may apply to appellant, that appellant cites

us to nothing suggesting that the jury ignored the instruction, and that the punishment fit

the crime, we are unable to conclude that appellant suffered egregious harm due to the

omission. So, his point of error is overruled, and the judgment is affirmed.



                                                                 Brian Quinn
                                                                    Justice



Do not publish.




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