AFFIRM; and Opinion Filed October 26, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00413-CR

                                VINCENT PASCO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F-1259001-Y

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Schenck
                                  Opinion by Justice Schenck
       Vincent Pasco appeals his conviction and life sentence for murder. In three issues,

appellant argues the evidence is insufficient to prove he was the person who committed the

offense, he was denied due process by an instruction in the punishment charge about good-time

credit and parole, and the trial court lacked jurisdiction. We affirm his conviction. Because all

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       Appellant (known as “Grinch”) became acquainted with the victim, Derrick Brown, in

connection with the sale of drugs at an apartment located in southern Dallas. On July 26, 2012,

Brown was at the apartment with appellant, a man known as “Banks,” Shannon Wright, and

Chadrick Kennedy. Appellant, Wright and Brown stayed overnight; Banks and Kennedy did not.

The next day, it was business as usual at the apartment. Customers arrived, and appellant,
Wright, and Brown sold them drugs. At some point appellant left to serve a customer. He left

behind a pack of drugs, and Brown took it. Brown left the apartment for a short period of time,

taking appellant’s drugs with him. When Brown returned to the apartment, appellant and Wright

were there. Banks appeared shortly thereafter with more drugs. Banks argued with Wright

about the missing drugs, and then he left.

       Wright’s mother, who lived in the same complex in which the apartment was located,

came by to get some money from her son. At that time, only appellant, Wright, and Brown were

in the apartment. Wright stepped outside to talk to his mother. He gave her some money, and

she returned to her residence in the complex. While Wright stayed outside to smoke a cigarette,

he heard two gunshots. He tried to get into the apartment, but the door was locked. He looked

through the blinds and saw blood on the walls. Wright went to his mother’s residence and told

her he thought Grinch had just shot Brown. Wright returned to the apartment and kicked in the

door. He found Brown on the couch, bleeding from ear to ear. He saw appellant running out of

the back door. Wright called out to appellant, but he did not stop.

                                             DISCUSSION

IDENTITY OF THE MURDERER

       In his first issue, appellant challenges the legal sufficiency of the evidence to prove he

was the gunman who shot Brown.

       Legal Sufficiency of the Evidence

       When conducting a legal-sufficiency review, a court must ask whether “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In so doing, we assess the evidence “in the

light most favorable to the prosecution.”         Id.   This same standard applies equally to

circumstantial and direct evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App.

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2001). The jury is the exclusive judge of the credibility of the witnesses and the weight to be

given to their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).

The jury is free to accept or reject all or any part of a witness’s testimony. See id; Dumas v.

State, 812 S.W.2d 611, 615 (Tex. App.—Dallas 1991, pet. ref'd). This Court is only to ensure

that the jury reached a rational conclusion, not to re-evaluate the weight and credibility of the

evidence. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Because appellant

challenges the sufficiency of the evidence to prove identity, we examine the evidence in the light

most favorable to the verdict and determine whether any rational trier of fact could have found

beyond a reasonable doubt that he was in fact the person who shot the victim. See Cardenas v.

State, 971 S.W.2d 645, 648–49 (Tex. App.—Dallas 1998, pet. ref’d). Viewed through this lens,

we find ample evidence to support a reasonable juror’s conclusion that appellant was the person

who shot Brown.

         Wright, who was present at the apartment on the day of the shooting, testified that the

only people at the apartment at the time Brown was killed were Wright, Brown, and appellant.

Wright knew appellant as Grinch. Wright stepped outside the apartment before Brown was shot.

Wright heard two gunshots. He kicked in the door and found Brown on the couch bleeding from

ear to ear. Wright saw appellant running out of the back door. He called out to him, but

appellant did not stop or respond. Wright told the jury that he believed appellant shot and killed

Brown.

         Wright’s mother also testified she heard the gunshots and saw appellant fleeing from the

back of the apartment while holding a phone up to his ear. Wright’s mother identified appellant

in open court as that person and testified she knew him as Grinch.

         Jordan Price testified that he was at a family gathering at the same apartment complex

when the offense occurred. He heard the gunshots and saw a man with “bright” skin coming out

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from the back of the complex through the parking lot. He testified the man had a gun tucked into

the back of his pants. Price described the man as having long hair and wearing a peach colored

shirt and baggy blue jeans. The man ran in front of Price and then across the freeway as he fled

the scene. Price identified appellant as the man he saw fleeing from the apartment complex in a

photo lineup.

       Kennedy testified that he was not at the apartment on the day Brown was murdered. Cell

phone records associated with Kennedy’s cell phone number were introduced into evidence and

showed that his phone made a call from a location in Irving, Texas, at the time of the offense.

The evidence further established that neither Banks nor Kennedy physically resemble appellant.

       Zina Shaw testified that she started dating appellant in March or April of 2012. Shaw

stated appellant called her after Brown was murdered and talked to her about the offense. This

led her to ask him why he did this and he replied, “It was me or him.” “They tried to hoe me.”

Then Shaw asked appellant, “Was that you running across the freeway?” He said, “Yes.”

       In summary, three witnesses identified appellant and testified that they saw him flee from

the scene of the crime shortly after hearing the gunshots. One witness saw a gun in appellant’s

waistband as appellant ran past him. Wright established a motive for the shooting, that being

retribution for the theft of drugs, and established appellant and Brown were the only people in

the apartment at the time of the shooting. Appellant told a girlfriend he shot Brown. From this

evidence, the jury could have found, beyond a reasonable doubt, that appellant was the gunman

who shot Brown. We overrule appellant’s first issue.

INSTRUCTION CONCERNING GOOD CONDUCT TIME

       In his second issue, appellant argues because he was ineligible for good conduct time, the

trial court erred by including a jury instruction about good conduct time.

       The complained of instruction tracks the language in article 37.07, section 4(a) of the

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code of criminal procedure. This instruction is mandated by the code of criminal procedure. See

Campbell v. State, No. 05–14–00563–CR, 2015 WL 4550678, at * 1–2 (Tex. App.—Dallas July

28, 2015, no pet), (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2014)).

The article sets out the exact language the trial courts are required to include. Id. As described

by the court of criminal appeals, the statutory parole charge instructs a jury in general terms

about the existence and possible grant of parole. Luquis v. State, 72 S.W.3d 355, 360 (Tex.

Crim. App. 2002). The instruction also refers to the concept of “good conduct time” and states

that a person sentenced to prison might earn some reduction in his period of incarceration

through the discretionary award of good-conduct time. Id. The instruction also warns the jury

that it cannot accurately predict how the concepts of good-conduct time and parole might be

applied to any particular person and thus it may not consider how those concepts might apply to

the defendant. Id. The overall purpose of the instruction is to generally inform jurors of good

conduct time and parole, but prohibit them from using the notions of these concepts in assessing

the appropriate punishment. Id.

       Appellant maintains that because he is not eligible for good-conduct time, the parole

charge was unconstitutional as applied to him. See TEX. GOV’T CODE ANN. § 508.149(a)(5)

(West Supp. 2014). In Luquis, the court of criminal appeals rejected the argument appellant

makes. Luquis, 72 S.W.3d at 365. In Luquis, and in this case, the jury was instructed not to

consider how good-conduct time or the parole law may be applied to the defendant. We assume

the jury followed these instructions, and we will not find constitutional error unless we conclude

that a reasonable jury probably was actually confused by this charge. See id. at 366–67.

       Appellant did not object to the court’s charge on punishment and thus bears the burden to

show that any error resulted in egregious harm such that he did not receive a fair and impartial

trial. See Jiminez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000); Atkinson v. State, 107

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S.W.3d 856, 859–60 (Tex. App.—Dallas 2003, no pet.). Appellant claims there is a reasonable

probability the parole charge mislead the jury. He does not elaborate on how or why the jury

was misled. As in Luquis, nothing in the record suggests the jurors discussed, considered, or

tried to apply what they were told about good-conduct time and parole. See id. at 367. For

example, the jury did not send out any notes on the subject and the prosecution did not mention

parole or good-conduct time during closing arguments.         Appellant has not demonstrated a

reasonable likelihood that the jury was in fact misled by the instruction or that it assessed a

higher punishment based on any misconstruction of the parole law charge. See id. at 368. Under

these circumstances, the parole instruction did not violate appellant’s right to due process, and

we cannot conclude that appellant suffered egregious harm. See id.; Atkinson, 107 S.W.3d at

860. We overrule appellant’s second issue.

TRIAL COURT’S JURISDICTION

       In his third issue, appellant argues Criminal District Court Number 7 lacked jurisdiction

over his case because the case was not transferred to its docket. More particularly, he claims that

the indictment was presented to Criminal District Court Number 3 and invested that court with

jurisdiction over the case. Based on the absence of a transfer order from Criminal District Court

Number 3 to Criminal District Court Number 7, appellant contends Criminal District Court

Number 7 never acquired jurisdiction.

       The failure to file a written transfer order is a procedural error, not a jurisdictional one.

Lamasurier v. State, 91 S.W.3d 897, 899 (Tex. App.—Fort Worth 2002, pet. ref'd).               This

procedural error does not render the actions of the later court void, but merely makes them

subject to a timely plea identifying the issue. Garcia v. State, 901 S.W.2d 731, 732-33 (Tex.

Crim. App. 1995). As a result, a defendant who does not file a timely plea forfeits any complaint




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about the lack of a written transfer order. Mills v. State, 742 S.W.2d 831, 835 (Tex. App.—

Dallas 1987, no pet.).

       In this case, appellant never filed a plea concerning the lack of a transfer order to the

Criminal District Court Number 7 nor in any other way challenged the competence of that court

over the indictment. In fact, he entered a plea of not guilty to the indictment in that court, and he

was tried, convicted, and sentenced in that court. By failing to raise the issue in the district court

and entering a plea and participating through counsel at trial, appellant forfeited his complaint

about the lack of a transfer order. Accordingly, appellant’s third issue as to the trial court’s

jurisdiction is without merit and is overruled.

                                           CONCLUSION

       Having resolved all of appellant’s issues against him, we affirm the trial court’s

judgment.



                                                        /David J. Schenck/
                                                        DAVID J. SCHENCK
                                                        JUSTICE




DO NOT PUBLISH
TEX. R. APP. P. 47

140413F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

VINCENT PASCO, Appellant                           On Appeal from the Criminal District Court
                                                   No. 7, Dallas County, Texas
No. 05-14-00413-CR        V.                       Trial Court Cause No. F-1259001-Y.
                                                   Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee                       Justices Lang-Miers and Brown
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 26th day of October, 2015.




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