Opinion filed August 14, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-12-00250-CR
                                    __________

                  EDGAR MADRID OLMOS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                               Ector County, Texas
                         Trial Court Cause No. C-38,889


                      MEMORANDUM OPINION
      Edgar Madrid Olmos entered an open plea of “guilty” to the offense of
burglary of a habitation. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The
jury assessed Appellant’s punishment at confinement in the Institutional Division
of the Texas Department of Criminal Justice for a term of twenty years. In a single
issue on appeal, Appellant challenges the order of the verdict forms attached to the
punishment charge submitted to the jury. We affirm.
        Appellant contends that the placement of the verdict forms providing for his
incarceration before those providing for community supervision constituted an
implied comment on which punishments were more favorable to the trial court.
We note at the outset that the jury charge on punishment contained in the clerk’s
record does not reflect that the verdict forms were ordered in the manner that
Appellant protests on appeal. However, the record reflects that Appellant objected
to the order of the verdict forms at trial. 1 For the purposes of our analysis, we will
assume that the verdict forms were presented to the jury in the order Appellant
claims they were presented.
        Where an appellant has properly preserved an issue related to the jury charge
for review, we must ascertain if error actually occurred. See Posey v. State, 966
S.W.2d 57, 60 (Tex. Crim. App. 1998).                      If error occurred and was properly
preserved, reversal is required if the error was calculated to injure the rights of the
defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In
other words, an error that has been properly preserved will require reversal if the
error caused some harm to the defendant. Id. We evaluate the issue of harm “in
light of the entire jury charge, the state of the evidence, including the contested
issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Id.
        The court’s charge on punishment instructed the jurors that they had the
option to recommend that Appellant be granted “probation” if they assessed a
punishment that did not exceed ten years and if they found that Appellant had
never been convicted of a felony. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4
(West Supp. 2013). Furthermore, the court’s charge included verdict forms that
afforded the jury the opportunity to recommend that Appellant be granted

        1
         Appellant cited no authority for his objection at trial, but he argued that the forms with the most
favorable options should be placed first. The trial court overruled Appellant’s objection.

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probation. Absent evidence indicating otherwise, we presume the jurors followed
the trial court’s instructions and considered the full range of punishment. See
Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). (stating that “we
generally presume that a jury will follow the judge’s instructions”).
      The Dallas Court of Appeals recently rejected a contention that the trial
court’s decision to place the verdict form with the harshest possible punishment
first was a comment on the evidence and a statement as to which punishment the
court preferred. Estelle v. State, No. 05-11-00353-CR, 2013 WL 222268, at *4
(Tex. App.—Dallas Jan. 16, 2013, no pet.) (mem. op., not designated for
publication). The court based its decision on the fact that the court’s charge
correctly instructed the jurors on the full range of punishment. The Amarillo and
Tyler Courts of Appeals, as well as the First Court of Appeals in Houston, have
also rejected similar claims premised on the order of the verdict forms contained in
the court’s charge. See Cook v. State, No. 07-11-00390-CR, 2013 WL 5782915, at
*7 (Tex. App.—Amarillo Oct. 23, 2013, pet. refused) (mem. op., not designated
for publication) (holding that trial court’s decision to place “guilty” verdict form
before “not guilty” verdict form did not influence the jury to ignore the detailed
written instructions of the trial court in the court’s charge); Vertiz v. State, No. 12-
11-00136-CR, 2012 WL 690398, at * 4 (Tex. App.—Tyler Feb. 29, 2012, no pet.)
(mem. op., not designated for publication) (holding that trial court’s decision to
place “guilty” verdict form before “not guilty” verdict form did not influence the
jury to find appellant guilty when it would not have otherwise done so); Hallman v.
State, No. 01-85-0720-CR, 1986 WL 10188, at *1 (Tex. App.—Houston [1st Dist.]
Aug. 28, 1986, no pet.) (not designated for publication) (rejecting claim that
court’s decision to place “guilty” verdict form before “not guilty” verdict form was
a comment on the weight of the evidence).


                                           3
      We agree with the reasoning of our sister courts that the particular order of
the verdict forms does not constitute an impermissible comment on which verdicts
were purportedly more favorable when the jurors are correctly instructed on the
full range of punishment. Accordingly, the trial court did not err by submitting the
verdict forms recommending probation after those providing for Appellant’s
incarceration. We overrule Appellant’s sole issue.
                                   This Court’s Ruling
      The judgment of the trial court is affirmed.




                                                     JOHN M. BAILEY
                                                     JUSTICE


August 14, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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