COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-214-CR
BRIAN TERRELL NORWOOD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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In a single point, appellant Brian Terrell Norwood argues that the trial
court erred during the punishment phase of trial by omitting from the jury
instructions a portion of the statutorily required instruction regarding parole and
that this error harmed him. We will affirm.
The jury found Norwood guilty of murder. During the punishment phase,
the trial court read its charge on punishment to the jury. Although the specific
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… See Tex. R. App. P. 47.4.
language of the jury charge is mandated by article 37.07 of the Texas Code of
Criminal Procedure, the court omitted one phrase in its parole instruction. See
Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2008). Norwood
did not object to this omission. The jury then assessed Norwood’s punishment
at the maximum, ninety-nine years’ imprisonment and a $10,000 fine. The trial
court sentenced Norwood accordingly.
The code of criminal procedure requires a specific jury charge to be given
when a defendant like Norwood has been found guilty of murder, part of which
reads:
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.
Id. (emphasis added).
Here, the trial court’s instructions to the jury omitted the phrase “without
consideration of any good conduct time he may earn.” Id. Norwood argues
that without this phrase, a rational juror would believe that good conduct would
be taken into account in calculating his parole and that, therefore, he could
receive parole sooner. Consequently, Norwood contends that the jurors
assessed a higher sentence for Norwood than they would have had they
received the proper instruction.
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Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we
must determine whether error occurred. If it did, we must then evaluate
whether sufficient harm resulted from the error to require reversal. Id. at
731–32.
If there is error in the court’s charge but the appellant did not preserve it
at trial, we must decide whether the error was so egregious and created such
harm that appellant did not have a fair and impartial trial—in short, that
“egregious harm” has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19
(Vernon 2007); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008);
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm
is the type and level of harm that affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory. Allen,
253 S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex.
Crim. App. 2006); Almanza, 686 S.W.2d at 172.
In making an egregious harm determination, “the actual degree of harm
must be assayed 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
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as a whole.” Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d
at 172–74. The purpose of this review is to illuminate the actual, not just
theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious
harm is a difficult standard to prove and must be determined on a case-by-case
basis. Ellison v. State, 86 S.W .3d 226, 227 (Tex. Crim. App. 2002); Hutch,
922 S.W.2d at 171.
The State agrees that the trial court committed error by excluding the
above-mentioned mandatory language in its parole instruction. Thus, because
Norwood failed to preserve error, the issue on appeal is whether he suffered
egregious harm. See Almanza, 686 S.W.2d at 171.
The jury charge on punishment instructed the jury that parole eligibility
will be based on “actual time served.” It also instructed the jury “not to
consider the extent to which good conduct time may be awarded to or forfeited
by this particular defendant” and “not to consider the manner in which the
parole law may be applied to this particular defendant.” During closing
argument, Norwood’s defense counsel explained to the jury how the parole
instruction works,
“In your Jury Charge, let’s talk about Instruction No. 2, what they
call the parole law instruction. Whatever sentence you decide
upon, at least half of that would be served day per day. Now, ten
years he’d have to serve at least five years, day for day, before
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he’s even eligible for parole. Twenty years, he will get 10 years
day per day. That’s when he becomes eligible.”
Defense counsel also reiterated the fact that the jury is “not to consider the
extent to which [parole] is to be awarded.”
Absent evidence that the jury did not follow the court’s instructions in the
charge, we presume the jury did follow the instructions and therefore did not
consider parole in assessing punishment. Lamberto v. State, No. 02-07-00070-
CR, 2008 WL 2168122, at *4 (Tex. App.—Fort Worth May 22, 2008, pet.
ref’d) (not designated for publication) (citing Hooper v. State, 255 S.W.3d 262,
271 (Tex. App.—Waco 2008, pet. ref’d) (holding that when there are no
indications to the contrary, the presumption that the jury followed the trial
court’s instructions prevails)).
In his brief, Norwood illustrates the theoretical harm that he could have
suffered by describing what the jurors could have thought regarding parole and
argues that a reasonable juror could have assessed a higher sentence to
compensate for any good conduct time he may receive. But he does not
demonstrate that he incurred any actual harm. See Almanza, 686 S.W.2d at
174 (requiring a review of the actual, not just theoretical, harm to the accused);
see also Shavers v. State, 985 S.W.2d 284, 292 (Tex. App.—Beaumont 1999,
pet. ref’d) (finding no egregious harm when nothing in the record indicated that
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the jury considered parole in assessing punishment). Norwood received the
maximum sentence, but this fact alone does not establish that he suffered
egregious harm. See Hooper, 255 S.W.3d at 272 (noting that “[c]ourts
generally agree that the parole instruction was designed to favor the State and
to increase sentences”).
After reviewing the record, we hold that the trial court’s error in the jury
charge was not egregious. See Almanza, 686 S.W.2d at 171. We overrule
Norwood’s sole point and affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 23, 2009
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