Opinion issued August 7, 2018




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00533-CR
                          ———————————
                      BRANDEN MASSEY, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 421st District Court
                         Caldwell County, Texas1
                      Trial Court Case No. 2016-183


                        MEMORANDUM OPINION

     A jury found appellant, Branden Massey, guilty of aggravated assault with a

deadly weapon and assessed his punishment at ten years’ confinement.2 In three

1
     This case is before this Court on transfer from the Third Court of Appeals in
     Austin pursuant to a docket-equalization order issued by the Supreme Court of
     Texas. See TEX. GOV’T CODE ANN. 73.001 (West 2017).
issues on appeal, appellant contends that: (1) he suffered egregious harm from the

trial court’s failure to charge the jury that the corroboration requirement for

accomplice testimony applied to the jury’s consideration of his criminal liability

under the law of parties; and, (2) and (3) he suffered egregious harm because of

errors in the jury charge on punishment, which misinformed the jury of his parole

eligibility. We affirm.

                                     Background

         Appellant was indicted for shooting Shawn Ruckman, the complainant, three

times with a handgun in the parking lot of an H&R Block in Caldwell County,

Texas.     At trial, Ruckman testified that he had a negative relationship with

appellant’s mother, Lana Cochran, due to a previous romantic interaction between

them. Ruckman claimed Cochran had sent men to beat him up several months

before the shooting occurred. In contrast, appellant testified that Cochran had told

him and others that Ruckman had attempted to rape her and run her over with a

truck.     Other witnesses, including appellant’s girlfriend, Jessica Murphy, and

various family members, testified that Ruckman and Cochran had a difficult

relationship.




2
         See TEX. PENAL CODE ANN. § 22.01(a)(2), 22.02(a)(2) (West 2011 & Supp. 2017).
                                           2
      On June 15, 2016, the day before the shooting, Cochran’s friend, Keith

Lopez,3 called to inform her that he had seen Ruckman rummaging through the

trash at the RV park where Lopez lived, and he asked if Cochran knew why

Ruckman was there.       The call motivated Cochran, appellant, Murphy, and

appellant’s friend C.J.—a homeless man who had not been formally identified by

police at the time of trial—to drive to the RV park in the early morning hours of

June 16, 2016.

      Prior to driving to the RV park, appellant drove to a nearby Wal-Mart where

Ruckman had stopped to get supplies for work his parents had asked him to do at

the H&R Block they owned. Ruckman testified that he went to buy a tool early in

the morning so he could work for a few hours before the heat of the day set in.

Surveillance footage from the Wal-Mart parking lot shows that appellant’s vehicle

arrived at Wal-Mart and drove around the parking lot during the time that

Ruckman was inside the store. The surveillance video shows appellant’s vehicle

pulling next to Ruckman’s truck. The passenger side door of appellant’s vehicle

opened, and a man fitting appellant’s description exited. The video shows that he

went under Ruckman’s truck for a moment, and he then got back into the car and

drove off at 2:30 a.m. Murphy testified that she, appellant, Cochran, and C.J.



3
      Ruckman testified that Lopez was one of the men Cochran had sent to beat him up
      prior to the shooting.
                                         3
waited in the parking lot for a period of time, and she admitted that she watched

Ruckman’s truck through binoculars while they waited.

      Appellant and the other three people with him—Cochran, Murphy, and

C.J.—eventually drove to Lopez’s home at the RV park, where they spent the next

few hours. Murphy testified that before they arrived Cochran had texted Lopez

asking him where she could find “a piece,” referring to a handgun. Lopez denied

seeing Cochran with a gun, and he denied helping her to procure one. However,

Lopez testified that appellant had a gun in his waistband when he arrived.

      Meanwhile, Ruckman left the Wal-Mart and went straight to his truck. After

starting it, he stepped back out and checked on the truck, then drove off at

2:59 a.m. Around 4:15 a.m., Ruckman called Jeffery Nix, an old friend of his,

telling him that his truck had broken down in the H&R Block parking lot and he

needed help. Nix testified that Ruckman was nervous on the phone and believed

that someone had intentionally cut his serpentine belt.        When Nix arrived,

Ruckman was holding the old belt in his hand, and it appeared to Nix that it had

been cut, not worn down. Ruckman likewise testified that he was concerned about

the damage to his truck due to Cochran’s having previously sent men to assault

him. Ruckman and Nix worked on the truck for around half an hour. The work

was slow going, as Nix had brought the wrong belt size. While they were working,

Murphy, Cochran, appellant, and C.J. drove up.


                                         4
      According to Murphy, she and C.J. were sitting in the back seat, Cochran

was driving, and appellant was in the front passenger’s seat.          Cochran and

appellant had a brief conversation, then someone rolled down the front passenger

window. Murphy testified that appellant fired three shots at Ruckman. One shot

grazed Ruckman’s elbow, another went through his abdomen, and the third went

through his other elbow. He cried out, “[T]hey shot me,” alerting Nix. Nix

testified that he saw a “white male, [with a] thin moustache, [wearing a b]lue ball

cap” whom he had never met before. He also testified that the driver was female

and appeared to be in her twenties, and she “had her hair up.”

      Appellant and the rest of the group fled the scene of the shooting. Murphy

testified that Cochran, who had been driving, switched places with C.J.—an

African-American male—so that the police would not be able to recognize a

female driver. Murphy testified that, as they were driving, appellant threw the

shell casings and clip from the window. When they returned home, Cochran and

C.J. left together, while appellant and Murphy stayed at their apartment.

      After the shooting, Nix called 911. Officer D. Lewis with the Lockhart

Police Department was the first to respond to the scene. He took care of Ruckman

until EMS and other officers arrived, then he began to photograph the scene and

collect evidence. He found three bullet slugs: one caught in the ground, and two

on the ground near Nix’s truck. He found no shell casings, but then found the cut


                                         5
serpentine belt on the ground near Ruckman’s truck.           There were several

bloodstains on the ground under and around Ruckman’s truck.

      Officer T. Larivee went to the surrounding businesses and obtained

surveillance footage, from which he was able to discern appellant’s vehicle’s

license plate. Police determined that the vehicle was actually registered to Barbara

Reynolds, appellant’s grandmother, and they contacted her.

      Meanwhile, appellant and Murphy were arguing about the shooting, and at

some point that afternoon Barbara Reynolds called them. She was frantic, as the

police had been to her house and told her the rough details of what had happened.

Appellant refused to speak to her, so she spoke with Murphy. Afterwards, Murphy

was upset, and she ultimately called the police and told them what had happened.

      On June 21, 2016, appellant was arrested. In a police interview conducted

the next day, he was cooperative. While he did not admit to shooting Ruckman, he

admitted to cutting the serpentine belt and to being present at the H&R Block

parking lot on the morning of the shooting. Cochran was also interviewed but

remained uncooperative.

      Appellant asserted throughout trial that Murphy—who testified that

appellant fired the shots at Ruckman—and Lopez—who testified that appellant had

a gun when he arrived at the RV park on June 16, 2016—were accomplices to the

shooting. Thus, he argued that their testimony was not sufficient by itself to


                                         6
convict him and had to be corroborated by other evidence. During the charge

conference, appellant argued that that Lopez and Murphy were accomplices as a

matter of law and asked that the jury be charged accordingly. The trial court denied

this request, considering them accomplices as a matter of fact instead. The guilt-

innocence charge thus contained a general instruction on accomplice-witness

testimony, identifying Murphy and Lopez as potential accomplices as a matter of

fact.

         The jury found appellant guilty of aggravated assault. It also made an

affirmative finding that appellant used or displayed a deadly weapon in the course

of committing the assault.

        During the punishment phase of the trial, appellant introduced the testimony

of several character witnesses from his family, including his father, aunt, and

uncle. He also introduced the testimony of Gary Howard, the Deputy Director for

the Caldwell County Adult Probation Office, who explained the specifics of

community supervision to the jury.

        Appellant attempted to portray himself as a good man under the negative

influence of his beloved mother, who had fed him stories about Ruckman’s

assaulting her.    Specifically, punishment witnesses testified that, prior to the

shooting, Cochran had been living with appellant and Murphy on and off. Several

members of appellant’s family testified during the punishment phase that Cochran


                                          7
was a terrible influence on her son. Since her arrival, the apartment complex that

appellant lived in and worked at had fired him for “slacking off.”

       The State contended that appellant’s actions were premeditated and violent.

It argued that appellant avoided committing murder only by the luck of the

circumstances.

       Appellant sought community supervision, and the court provided the jury

this written and verbal charge concerning punishment assessment, including

instructions on the punishment range for appellant’s offense, law regarding

eligibility for community supervision, and law regarding good conduct time and

eligibility for parole.

       The jury assessed appellant’s punishment at ten years’ confinement without

a fine. The jury did not recommend community supervision.

                          Standard of Review for Charge Error

       In evaluating complaints of jury charge error, we conduct a two-step

analysis. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). We first

determine whether an error occurred. Id. If an error exists, we must decide

whether the error caused enough harm to warrant reversal. Id. at 744; Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If the court finds error, the

standard of review applied in assessing the harm caused by the error depends on

whether the error in the charge was subject to timely objection in the trial court.


                                           8
Ngo, 175 S.W.3d at 743–44; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985). If there is a timely objection to the error at trial, the appellant must

only demonstrate “some harm” to warrant reversal. Ngo, 175 S.W.3d at 743;

Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). When there is no

timely objection to the error at trial, reversal is granted only if the appellant

suffered “egregious harm” because of the erroneous charge. Ngo, 175 S.W.3d at

743–44; Almanza, 686 S.W.2d at 171.

      An egregious harm determination is based on a finding of actual rather than

theoretical harm. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015)

(quoting Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). However,

there does not need to be direct evidence of the actual harm in order to establish

egregious harm. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)

(citing Castillo-Fuentes v. State, 707 S.W.2d 559, 563 n.2 (Tex. Crim. App 1986)).

In determining whether an appellant suffered egregious harm, the court considers

“(A) the entire jury charge; (B) the state of the evidence[,] including contested

issues and the weight of probative evidence; (C) the parties’ arguments; and (D) all

other relevant information in the record.” Arrington, 451 S.W.3d at 840 (citing

Almanza, 686 S.W.2d at 171); Hutch, 922 S.W.2d at 171 (explaining that

egregious harm is examined on case-by-case basis and that reviewing court may

consider any relevant information from trial record). Errors cause egregious harm


                                         9
if they affect the very basis of the case, deprive the defendant of a valuable right,

vitally affect a defensive theory, or make the case for conviction significantly more

persuasive. Hall v. State, 937 S.W.2d 580, 583 (Tex. App.—Texarkana 1996, pet.

ref’d) (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).

                             Guilt-Innocence Charge

      In his first issue, appellant contends that he suffered egregious harm from

the trial court’s failure to charge the jury that the corroboration requirement for

accomplice testimony applied to the jury’s consideration of his criminal liability

under the law of parties.

A.    Relevant Facts

      The jury charge for the guilt-innocence phase set out “general principles of

law that must govern [the jury’s] decision [in] this case.” One of those general

principles was an instruction on accomplice testimony. The general instruction on

accomplice testimony informed the jury that it “cannot convict the defendant based

solely on the testimony of an accomplice unless you first believe that the

accomplice’s evidence is true and that it shows the defendant is guilty of the

offense charged against him.” It further stated, “Even then you cannot convict the

defendant unless the accomplice’s testimony is corroborated by other evidence

tending to connect the defendant with the offense charged. The corroboration is not




                                         10
sufficient if it merely shows the commission of the offense, but it must tend to

connect the defendant with its commission.”

      The general instruction on accomplice testimony applied this law

specifically to Murphy and Lopez:

      [I]f you believe from the evidence beyond a reasonable doubt that an
      offense was committed and you further believe from the evidence that
      the witnesses Jessica Murphy and Keith Lopez were accomplices, or
      you have a reasonable doubt as to whether they were or not, as that
      term is defined in the foregoing instructions, then you cannot convict
      the defendant upon the testimony of Jessica Murphy and Keith Lopez
      unless you first believe that the testimony of Jessica Murphy and
      Keith Lopez is true and that it shows the defendant is guilty as
      charged in the indictment; even then you cannot convict the defendant
      unless you further believe that there is other evidence in the case,
      outside of the evidence of Jessica Murphy and Keith Lopez tending to
      connect the defendant with the commission of the offense charged in
      the indictment, and then from all the evidence you must believe
      beyond a reasonable doubt that the defendant is guilty.

      The following paragraph under the “general principles” section of the charge

was an instruction on “responsibility for conduct of another as a party,” instructing

the jury that “[a] person is criminally responsible for an offense committed by the

conduct of another if, acting with intent to promote or assist the commission of the

offense, he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” The charge generally set out the elements that the State was

required to prove to establish that “a person is guilty of an offense committed by

the conduct of another.” This paragraph did not contain any application of the law

to the particular facts of appellant’s case.

                                           11
      The charge then specifically instructed the jury that appellant had been

charged with “intentionally, knowingly, or recklessly caus[ing] bodily injury to

Shawn Ruckman” by using or exhibiting “a deadly weapon, specifically, a

firearm.” The charge set out the statutory elements for proving aggravated assault,

defined key terms such as “bodily injury,” and then provided the following

instruction on the “application of law to facts”:

            You must determine whether the state has proved, beyond a
      reasonable doubt, three elements. The elements are that—

      1. the defendant, in Caldwell County, Texas on or about the 16th day
      of June, 2016 caused bodily injury to Shawn Ruckman; and

      2. the defendant did this—
           a. intending to cause bodily injury; or
           b. knowing that he would cause bodily injury; or
           c. with recklessness about whether he would cause bodily injury;
           and

      3. the defendant, during the alleged assault, used or exhibited a
      firearm, a deadly weapon.

             You must all agree on elements 1, 2, and 3 listed above, but you
      do not have to agree on the culpable mental states listed in elements
      2.a, 2.b, and 2.c above.
             If you all agree the state has failed to prove, beyond a
      reasonable doubt, one or more of elements 1, 2, and 3 listed above,
      you must find the defendant “not guilty.”
             If you all agree the state has proved, beyond a reasonable doubt,
      each of the three elements listed above, you must find the defendant
      “guilty.”

The charge did not instruct the jury on the law of parties as it related to finding

appellant guilty of the charged offense.

                                           12
B.     Analysis

       Appellant contends that “the trial court’s failure to charge the jury that the

law of accomplice testimony applied to the jury’s consideration of [his] criminal

liability under the law of parties” was erroneous and caused him egregious harm.

Appellant cites Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013), in

support of his argument.

       Before a conviction can be based on an accomplice’s testimony, the

testimony must be corroborated by other evidence tending to connect the accused

to the crime. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2014); Zamora v.

State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013). A proper accomplice-witness

instruction explains the definition of accomplice, as well as explaining the need for

corroboration of evidence if the witness is an accomplice. Zamora 411 S.W.3d at

510.

       In Zamora, the Court of Criminal Appeals held that the conspiracy theory of

party liability applies in the accomplice-witness context because “an accomplice is

a person who may be charged with the same or lesser-included offense as that with

which the defendant is charged” and “a person may be charged with an offense as a

principal, a direct party, or as a co-conspirator.” Id. at 511 (addressing question of

whether testimony from co-conspirator triggers requirement for accomplice-

witness instruction). The Court of Criminal Appeals also held in Zamora that all


                                         13
complaints about the trial court’s failure to include an accomplice-witness

instruction must be analyzed under the procedural framework set out in Almanza.

Id. at 512–13. The reasoning in Zamora does not support appellant’s complaint

because the trial court here gave an accomplice-witness instruction, and appellant

does not complain of any inadequacy in the trial court’s general instructions on the

law of accomplice witnesses and corroboration.

      Appellant cites no authority requiring that the jury charge expressly reiterate

the applicability of the accomplice witness instruction to the following paragraph

regarding the law of parties. See Vasquez v. State, 389 S.W.3d 361, 367 n.16 (Tex.

Crim. App. 2012) (“It is unnecessary to repeat every abstract definition in the

application paragraph of the jury charge.”); Roys v. State, 416 S.W.3d 229, 236

(Tex. App.—Amarillo 2013, pet. ref’d) (addressing similar issue and citing

Vasquez). The wording of the jury charge, as a whole, made it clear that the

instruction on accomplice-witness testimony was one of the “general principles of

law that must govern [the jury’s] decision [in] this case.” The accomplice-witness

instruction immediately preceded the instruction on the potential criminal liability

under the law of parties. We conclude that the jury would have understood that it

was to consider all of the instructions contained in the charge, and, absent evidence

to the contrary, we must presume that the jury understood and followed the

instructions. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)


                                         14
(holding that appellate courts generally presume jury follows trial court’s

instruction in manner presented and that presumption is rebuttable, but appellant

must rebut presumption by pointing to evidence that jury failed to follow

instruction); Roys, 416 S.W.3d at 236.

      We overrule appellant’s first issue.

                               Charge on Punishment

      In his second and third issues, appellant contends that he suffered egregious

harm as a result of errors in the punishment jury charge, which misinformed the

jury on the law of parole eligibility.

A.    Relevant Facts and Law

      Following the jury’s finding that appellant was guilty of aggravated assault,

the trial court charged the jury regarding appellant’s punishment. The punishment

charge informed the jury that the punishment range for aggravated assault was

between two and twenty years’ confinement and a fine of no more than $10,000.

      The jury also made an affirmative finding that appellant used or displayed a

deadly weapon in the course of committing the aggravated assault. The entry of a

deadly weapon finding affects appellant’s eligibility for parole. See Duran v. State,

492 S.W.3d 741, 745 (Tex. Crim. App. 2016).

      Government Code section 508.145(d)(2) states that an inmate serving a

sentence for an offense which includes an affirmative deadly weapon finding “is


                                         15
not eligible for release on parole until the inmate’s actual calendar time served,

without consideration of good conduct time, equals one-half of the sentence or 30

calendar years, whichever is less, but in no event is the inmate eligible for release

on parole in less than two calendar years.” TEX. GOV’T CODE ANN.

§ 508.145(d)(1)–(2) (West Supp. 2017).        Under these circumstances, Code of

Criminal Procedure article 37.07, section 4(a) requires that the trial court instruct

the jury 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, 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, the defendant must serve at
      least two years before the defendant 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.


                                         16
      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(d) (West Supp. 2017).

      Here, the charge instructed the jury on “parole and good conduct time” as set

out above, except that, in the paragraph regarding eligibility for parole, it stated,

            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 plus any good conduct time earned
      equals one-half of the sentence imposed. Eligibility for parole does
      not guarantee that parole will be granted.

The trial court’s charge thus failed to instruct the jury that appellant’s eligibility for

parole would be made “without consideration of any good conduct time the

defendant may earn,” and it failed to instruct the jury, “If the defendant is

sentenced to a term of less than four years, the defendant must serve at least two

years before the defendant is eligible for parole.” See id.

      Finally, the charge instructed the jury on appellant’s eligibility to be granted

community supervision. The charge informed the jury that “‘Community

supervision’ is often called ‘probation’” and that “[t]he two terms mean the same

thing.” The jury was instructed that it could “recommend that the confinement

assessed by [the jury], any fine assessed by [the jury], or both, be suspended and




                                           17
the defendant placed on community supervision.” The charge set out the

requirements for making such a recommendation.

       Closing arguments by both the State and appellant focused on whether

probation was an appropriate punishment for appellant. The State argued that a

probated sentence was not appropriate because appellant’s acts were deliberate and

violent. Appellant, however, sought a probated sentence, arguing that he was a

good person with no serious prior legal problems who was led astray by the bad

influence of his mother. Neither party nor the trial court discussed the issue of

eligibility for parole.

       The jury deliberated for less than twenty minutes. It did not send any notes

expressing confusion regarding the punishment charge. The jury assessed

appellant’s punishment at ten years’ confinement without a fine, and it did not

recommend community supervision.

B.     Analysis

       Appellant argues that the trial court’s instruction regarding when he would

be eligible for parole provided the jury with inaccurate information. He argues that,

contrary to the trial court’s instruction, “good conduct time does not play a factor

in [his] parole eligibility.” Appellant also argues that “[t]he jury was further

misadvised by not being told of the two year minimum [he] would be required to

serve for any sentence of two years to less than four years.” He argues, “Clearly,


                                         18
the charge misapplied the law to the particular facts of this case and therefore

failed to lead the jury to the threshold of its duty.” Appellant also acknowledges

that he failed to object to the punishment charge and thus is required to show that

the errors cause egregious harm.

      The State concedes that the punishment charge was erroneous with regard to

parole eligibility and good conduct time credit. However, it argues that appellant

failed to show egregious harm as a result of the error.

      Appellant argues, in part, that this case “is one of those rare instances where

erroneous jury instructions alone caused egregious harm.” The cases cited by

appellant involved charge errors that mistakenly charged the jury on the State’s

burden of proof. See Ruiz v. State, 753 S.W.2d 681, 686–87 (Tex. Crim. App.

1988) (finding defendant suffered egregious harm from erroneous charge that

failed to properly instruct jury on State’s burden of proof and effectively lowered

State’s burden); Manning v. State, 730 S.W.2d 744, 750 (Tex. Crim. App. 1987)

(finding egregious harm when charge incorrectly instructed jury on State’s burden

of proof on defendant’s competency). The nature of the errors here—incorrectly

informing the jury that good conduct time would be considered in determining

appellant’s eligibility for parole and failing to state that he would be required to

serve a minimum of two years in the event he was sentenced to less than four

years’ confinement—do not rise to the same level of harm, in and of themselves, as


                                         19
do charge errors that might affect the jury’s understanding of the State’s burden of

proof. Thus, we conclude that these cases are distinguishable, and appellant has not

established that the erroneous instruction alone caused egregious harm.

      Rather, in determining whether the errors here caused appellant egregious

harm, we consider the entire jury charge; the state of the evidence, including

contested issues and the weight of probative evidence; the parties’ arguments; and

all other relevant information in the record. See Arrington, 451 S.W.3d at 840.

      Considering the charge as a whole, the misstatements of law were relatively

isolated. Rather than instructing the jury that appellant would “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,” the charge here instructed that “he will not become eligible

for parole until the actual time served plus any good conduct time earned equals

one-half of the sentence imposed.” And the charge failed to instruct the jury that,

“[i]f 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.” The remainder of the trial court’s

punishment charge on parole and good conduct time tracked the statutorily

required language.

      Furthermore, the jury was also instructed, correctly, that “[e]ligibility for

parole does not guarantee that parole will be granted,” and that it “cannot


                                          20
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.” The jury was permitted to consider the existence of parole law and

good conduct time, but it was instructed “not to consider the extent to which good

conduct time may be awarded to or forfeited by this particular defendant,” and it

was instructed “not to consider the manner in which the parole law may be applied

to this particular defendant.” Thus, the jury was instructed not to consider how

good conduct time might be applied to appellant, and there is no evidence in the

record to rebut the presumption that the jury followed this instruction. See Ross v.

State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004) (citing this factor in

determining that there was no reasonable likelihood that jury applied misleading

parole charge in way that prevented jury from properly considering defendant’s

punishment) (citing Luquis v. State, 72 S.W.3d 355, 664–68 (Tex. Crim. App.

2002)); see also Thrift, 176 S.W.3d at 224 (holding that, absent contrary evidence,

we presume trial court understood and applied trial court’s instructions in jury

charge).

      Regarding other relevant information in the record, including the state of the

evidence and the parties’ arguments, we observe that neither the trial court nor the

State emphasized the improper instruction. Both the State and appellant devoted


                                        21
their closing arguments to addressing appellant’s eligibility for community

supervision and did not address at all the effect that the potential for parole should

have in the jury’s punishment deliberations. See Luquis, 72 S.W.3d at 367

(“Neither the prosecutor nor 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.”). As in Ross, “[t]he jury did not send out any

notes indicating or expressing confusion about the possible application of good

conduct time to appellant.” See 133 S.W.3d at 624 (quoting Luquis, 72 S.W.3d at

367). And appellant received a sentence of ten years’ confinement, which is well

within the punishment range for aggravated assault and is “unsurprising”

considering the nature of appellant’s actions here, which the State argued were

violent, premeditated, and nearly resulted in a murder rather than an assault. See

Luquis, 72 S.W.3d at 367–68 (“Although appellant received the maximum

sentence possible, life in prison, that is unsurprising given appellant’s crime, his

cavalier confession, and his abysmal prior criminal record.”).

      Examining the charge in its entirety and the other relevant record evidence,

we conclude that appellant has failed to demonstrate any harm that affected the

very basis of the case, that deprived him of a valuable right, that vitally affected a

defensive theory, or that made the State’s punishment case significantly more

persuasive. See Ross, 133 S.W.3d at 624; Hall, 937 S.W.2d at 583.


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      We overrule appellant’s second and third issues.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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