                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00307-CR

EVERETT EUGENE TURNER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2009-305-C2


                          MEMORANDUM OPINION


      Appellant Everett Eugene Turner pleaded guilty to the offenses of burglary of a

habitation and felon in possession of a firearm. See TEX. PENAL CODE ANN. §§ 30.02,

46.04 (Vernon 2011).    He elected to have the jury assess his punishment and was

sentenced to twenty and five years’ imprisonment, respectively. This appeal ensued.

      In his first issue, Turner contends that the trial court erred in giving the parole

law instruction required by article 37.07, section 4(a) of the Code of Criminal Procedure

in the punishment charge. Turner complains that the instruction language concerning
“good conduct time” is misleading because it improperly implies that a person may be

released from prison early without any parole solely due to accruing good conduct

time.

        Because Turner did not object to the charge on this basis, error will not result in

reversal of his conviction in the absence of “egregioius harm.” Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In examining the record for

egregious harm, we consider the entire jury charge, the state of the evidence, the final

arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

        There is a presumption that the jury followed the charge’s instructions. See

Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002); Hooper v. State, 255 S.W.3d

262, 271 (Tex. App.—Waco 2008, pet. ref’d). Thus, we presume that the jury followed

the trial court’s instructions and did not consider parole: “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.”      See Hooper, 255 S.W.3d at 271.        Absent

evidence or indications to the contrary, this presumption prevails. Id. at 271-72.



Turner v. State                                                                       Page 2
        Turner has not demonstrated a reasonable likelihood that the jury was, in fact,

misled or that it assessed a higher sentence based upon any misconstruction of the

parole law charge. Nothing in the record suggests that the jury discussed, considered

or tried to apply (despite the judicial admonition not to apply) what they were told

about good conduct time and parole. Neither the prosecutor nor defense attorney

discussed good conduct time or parole in argument or urged the jury to assess a greater

(or lesser) sentence based upon good conduct time or parole. The jury did not send out

any notes indicating or expressing confusion about the possible application of good

conduct time or parole to Turner. Although Turner received the maximum sentence of

incarceration for the burglary offense, the jury did not assess any fines and only

assessed half the maximum sentence for the offense of felon in possession of a firearm.

See Luquis, 72 S.W.3d at 366-68; Hooper, 255 S.W.3d at 272.

        Thus, assuming without deciding that the trial court erred, we conclude that any

alleged error did not result in egregious harm. We overrule Turner’s first issue.

        In his second issue, Turner contends that the trial court erred by instructing the

jurors in the punishment charge that they should not let “sympathy” affect their

deliberations or verdict.    We have previously decided this issue against Turner’s

position and see no occasion to revisit our ruling. See Wilson v. State, 267 S.W.3d 215,

219-20 (Tex. App.—Waco 2008, pet. ref’d) (citing Saffle v. Parks, 494 U.S. 484, 489, 110

S.Ct. 1257, 1260-61, 108 L.Ed.2d 415 (1990) (holding that jurors need not “be allowed to

base the sentencing decision upon the sympathy they feel for the defendant after

hearing his mitigating evidence”)). We overrule Turner’s second issue.

Turner v. State                                                                     Page 3
        Having overruled both Turner’s issues, we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2011
Do not publish
[CR25]




Turner v. State                                                                    Page 4
