Affirmed; Opinion Filed October 10, 2019




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-18-00942-CR

                           ALEXANDER ABRAHAM, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 195th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. F17-76956-N

                            MEMORANDUM OPINION
               Before Chief Justice Burns, Justice Whitehill, and Justice Schenck
                                  Opinion by Justice Schenck
       Alexander Abraham appeals his conviction for aggravated robbery. In a single issue, he

complains the trial court improperly instructed the jury regarding parole eligibility in the

punishment charge. We affirm the judgment. Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

                                        BACKGROUND

       In late December 2017, appellant was admitted to Serenity Crisis Residential Center where

he was diagnosed with bipolar disorder and major depression. When appellant was released from

Serenity, he met Victor Leos, who was also released from the center that morning. Both men were

given bus passes, but Leos was unfamiliar with the bus system and had no other means of

transportation. Leos asked appellant to show him how to get to Leos’s home in Rowlett, and

appellant agreed to do so. Appellant and Leos took the bus to downtown Dallas where they
purchased and used some marijuana from appellant’s dealer. The two men then panhandled at a

store and a restaurant before eventually arriving at a hotel at about 10 p.m. to get in out of the cold.

When they got to the hotel room, appellant looked at Facebook on his cell phone, and Leos watched

television. After about an hour and a half, appellant wanted to go outside to panhandle again, but

Leos did not want to go out into the cold again. Appellant put on his jacket and gloves and acted

as if he were going to leave when he turned to Leos and stabbed him in the chest and leg. Appellant

then demanded Leos’s cell phone, which Leos gave him, and appellant left the room. Leos

managed to walk down stairs and ask a man at the front desk of the hotel to call 9-1-1. After a

police officer arrived and obtained a description of appellant from Leos, an ambulance took Leos

to the hospital where his injuries were treated.

       Appellant was later arrested and indicted for aggravated robbery with a deadly weapon.

The indictment contained an enhancement paragraph alleging a prior conviction of a federal felony

offense. Appellant pleaded not guilty, and the case proceeded to trial before a jury. The jury found

appellant guilty of the lesser-included offense of aggravated assault “as alleged in the indictment,”

and the trial court made a deadly-weapon finding. After a punishment hearing, the jury found the

enhancement paragraph to be true and sentenced appellant to seventeen years’ confinement and

assessed a fine of $250.

                                              ANALYSIS

       In his sole issue on appeal, appellant argues the trial court erred by omitting language from

the punishment charge regarding his eligibility for parole.

       We review purported error in a jury charge under a two-pronged test. Kirsch v. State, 357

S.W.3d 645, 649 (Tex. Crim. App. 2012) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984)). First, we determine whether error exists. Id. Second, if error occurred, then

we must analyze that error for harm. Id.
           In this case, appellant elected to have the jury assess his punishment. Therefore, the trial

court was required to instruct the jury on the law of parole and how this law would be applied to

appellant.1 The jury should have been charged as follows:

           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.
           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 might be applied to this
           defendant if sentenced to a term of imprisonment, because the application of that
           law will depend on decisions made by parole authorities.

           You may consider the existence of the parole law. You are not to consider the
           manner in which the parole law may be applied to this particular defendant.

TEX. CRIM. PROC. CODE ANN. art. 37.07, § 4(a).

           Instead, the jury was charged, in pertinent part:

           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
           equals one-half of the sentence imposed or 30 years, whichever is less, without
           consideration of any good conduct time he may earn. Eligibility for parole does
           not guarantee that parole will be granted.

           It cannot be accurately predicted how the parole law and good conduct time might
           be applied to this defendant if he is sentenced to a term of imprisonment, because
           the application of these laws will depend on decisions made by prison and parole
           authorities.

           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.

           This instruction failed to inform the jury that if appellant were sentenced to a term of less

than four years he must serve at least two years before he is eligible for parole and, thus, was

erroneous. Appellant did not object to the erroneous charge, however. Therefore, the error


      1
        The statutory instruction is constitutional and mandatory, and the precise language of article 37.07 is prohibited from alteration. See Luquis
v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002).
supports reversal only if it is shown to be egregious and to have created such harm that appellant

was deprived of a fair and impartial trial. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.

App. 2009).

       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. Villarreal v. State, 453 S.W.3d

429, 433 (Tex. Crim. App. 2015). Egregious harm is a high and difficult standard to meet, and

such a determination must be borne out by the trial record. Id. (citations omitted). On appeal,

neither party bears the burden of showing harm or a lack thereof under this standard. Id. We will

not reverse a conviction unless the defendant has suffered actual rather than theoretical harm. Id.

In examining the record to determine whether charge error has resulted in egregious harm to a

defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including

the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any

other relevant information revealed by the trial record as a whole. Id. (citing Almanza, 686 S.W.2d

at 171).

       Appellant argues that because he pleaded not true to the enhancement paragraph, the jury

could have found the allegation not true, which would have made the applicable punishment range

two to twenty years’ confinement, and thus the omitted language particularly relevant to his case.

He points out that defense counsel mentioned parole during his punishment argument and

requested appellant be sentenced to less than twenty years’ confinement. Appellant further notes

that the prosecutor did not argue for a particular sentence. The State responds that such arguments

indicate theoretical rather than actual harm. We agree and now turn to consider the following

factors to determine whether any actual egregious harm resulted as a result of this error: (1) the

entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight
of probative evidence, (3) the arguments of counsel, and (4) any other relevant information

revealed by the trial record as a whole. See Villarreal, 453 S.W.3d at 433.

       The over-arching purpose of the section 4(a) instruction is to inform the jurors of the

concepts of “good conduct time” and parole as a general proposition and to prohibit the jury from

using its notions of parole or “good conduct time” in any calculus in assessing the appropriate

punishment. See Luquis, 72 S.W.3d at 360. In keeping with this purpose, the jury here was

informed of the range of punishment, instructed to limit its deliberations, under the law and the

evidence in the case, to the question of punishment, and instructed not to consider how “good

conduct time” or parole may be applied to appellant when assessing punishment. Absent any

evidence or other record indications to the contrary, we presume the jurors understood and

followed the trial court’s instructions in the jury charge, and appellant has failed to show otherwise.

See Soza v. State, No. 05-17-00590-CR, 2018 WL 3387249, at *3 (Tex. App.—Dallas July 12,

2018, pet. ref’d). Thus, the first factor does not weight in favor of concluding appellant was

egregiously harmed by the erroneous instruction.

       With respect to the second factor, the state of the evidence, the evidence established, and

appellant admitted in his testimony, that he caused serious injury to Leos. What appellant disputed

was whether he took Leos’s cell phone. The jury presumably believed appellant and convicted

him of aggravated assault, instead of aggravated robbery. Aggravated assault is a second-degree

felony for which the punishment range was a term of two to twenty years and a possible fine not

to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.33; 22.02. A finding of true of the

enhancement paragraph meant that the offense was a first-degree felony for which the punishment

range was a term of five to ninety nine years and a possible fine not to exceed $10,000. See id. §§

12.32; 12.42. The jury sentenced him to seventeen years’ confinement and a fine of $250, which

was not in the range potentially impacted by the erroneous charge (a term of less than four years).
This second factor does not weigh in favor of concluding appellant was egregiously harmed by the

erroneous instruction. See Soza, 2018 WL 3387249, at *3.

       The third factor pertains to the arguments of counsel. In their closing arguments, both

defense counsel and the State specified the decision during the guilt and innocence phase was only

as to whether appellant committed an offense and made it clear the punishment would be

determined at a later phase if necessary. During the punishment phase, defense counsel mentioned

parole and stated, “You are not to consider the manner in which parole might be applied to a

particular defendant.” Defense counsel noted the range of punishment was from two to twenty

years unless the jury found the enhancement paragraph regarding a prior conviction true, in which

case the range was five to life. The State did not argue or suggest any specific length of punishment

and did not request that the jury consider the possibility of parole in assessing appellant’s

punishment.    Thus, the third factor does not weigh in favor of concluding appellant was

egregiously harmed by the erroneous instruction. See Soza, 2018 WL 3387249, at *3.

       As for the fourth factor of any other relevant information revealed by the record, appellant

has presented no evidence, and nothing in the record suggests, the jury discussed, considered, or

attempted to apply any aspect of parole law to appellant despite the charge’s admonition not to do

so. Further, appellant has presented no evidence showing the jury was misled by the parole law

charge actually given or increased his sentence based on the absence of the portions of

the article 37.07, section 4(a) instruction regarding a minimum of two years’ service for a two to

four year sentence. See Soza, 2018 WL 3387249, at *3. Thus, the fourth factor does not weigh in

favor of concluding appellant was egregiously harmed by the erroneous instruction.
                                         CONCLUSION

       We affirm the trial court’s judgment.




                                               /David J. Schenck/
                                               DAVID J. SCHENCK
                                               JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47
180942F.U05
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 ALEXANDER ABRAHAM, Appellant                      On Appeal from the 195th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-00942-CR         V.                     Trial Court Cause No. F17-76956-N.
                                                   Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                      Chief Justice Burns and Justice Whitehill
                                                   participating.

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


Judgment entered this 10th day of October, 2019.
