947 F.2d 189
Jesus MENDEZ, Jr., Petitioner-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee.
No. 91-2054.
United States Court of Appeals,Fifth Circuit.
Nov. 18, 1991.

Jesus Mendez, Jr., pro se.
Elizabeth Elleson, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, SMITH, and DUHE, Circuit Judges.
PER CURIAM:


1
The sole issue presented in this appeal is whether the trial court's instruction to the jury pertaining to good time credit and parole eligibility infected the sentencing phase of petitioner's trial.


2
The jury charge at issue instructed the jury that:


3
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through an 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.


4
The charge continued with an instruction on parole and concluded:


5
You may consider the existence of 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.


6
The jury sentenced the defendant to a term of incarceration of sixty (60) years.


7
In a post-conviction state habeas proceeding, petitioner submitted the affidavits of two jurors in which they declare that "[b]ecause the jury was instructed on the existence of the parole law, said jury discussed and determined that Mr. Mendez should serve twenty (20) years or one third ( 1/3) of his sentence before becoming eligible for parole."   The state courts denied him relief, following which, he pursued this collateral attack.   The district court below, following the recommendation of the United States Magistrate Judge, held that the instructions did not amount to a constitutional violation.


8
In Day v. Collins, (5th Cir. June 19, 1991) [936 F.2d 569 (Table) ] (per curiam) (unpublished opinion), we held that the instruction at issue in this case, pertaining specifically to parole, is not a constitutionally infirm instruction.  Slip op. at 3-5 (citing California v. Ramos, 463 U.S. 992, 1004-05, 103 S.Ct. 3446, 3455-56, 77 L.Ed.2d 1171 (1982) (death penalty case) and Applewhite v. Lynaugh, No. 88-2968, slip op. at 2 (5th Cir. July 5, 1989) [880 F.2d 411 (Table) ] (Smith, J.)  (unpublished opinion)).   We believe that Day controls the instant appeal.   See also King v. Lynaugh, 850 F.2d 1055, 1061 (5th Cir.1988) (en banc) (commenting that the Supreme Court in California v. Ramos determined "that a jury instruction on a capital defendant's eligibility for parole or commutation of sentence does not raise a constitutional issue").


9
The juror affidavits indicate that the parole portion, not the good time credit aspect of the charge affected the verdict.   We find no merit, therefore, in petitioner's claim that the good time credit instruction, held by the Texas Court of Criminal Appeals to be an "erroneous and misleading" instruction, Rose v. State, 752 S.W.2d 529, 534 n. 6 (Tex.Cr.App.1987), adversely affected petitioner's sentence.   See id. at 537 and n. 10 (applying a harmless error analysis).


10
The judgment below is AFFIRMED.

