Jonathan Keith Gardner v. State

NUMBER 13-07-446-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JONATHAN KEITH GARDNER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 163rd District Court
of Orange County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Vela

A jury found appellant, Jonathan Keith Gardner, guilty of aggravated robbery1 and

assessed his punishment at twelve years in prison, plus a $10,000 fine. In five issues,

1
See T EX . P EN AL C OD E A N N . §§ 29.02, 29.03(a)(2) (Vernon 2003).
Gardner challenges the legal and factual sufficiency of the evidence to support his

conviction and complains of charge error. We affirm.

I. Factual Background

A. State’s Evidence

On the morning of November 2, 2006, Rosemary Pollard went to the home of

Ronald Mills, Jr., in Orange, Texas, and told Horace Lesiene she wanted to talk to Mills.

Lesiene told Pollard that Mills did not want to talk to her. After Lesiene left Mills’s house,

Mills saw Pollard in his garage. She told Mills she had left her purse in his house. Mills

let her inside, and while they looked for the purse, Gardner and Steven Lewis came into

Mills’s kitchen. When Mills saw them in the kitchen, both told him, “‘This is a robbery,

fool.’” Gardner tried to knock Mills out by hitting him with pots and pans. He also wanted

to tie up Mills with a phone cord. While Mills fought Lewis, Gardner took knives from the

kitchen table, and both men tried to stab Mills with the knives. Gardner told Mills, “‘Give

us your money. We’re going to kill you.’” Lewis grabbed a butcher knife from the kitchen

sink and plunged it into Mills’s stomach. Mills testified that because he “was losing so

much blood” he stopped fighting. When the prosecutor asked him, “So what did they take

out of the kitchen?”, he said, “[J]ust laptop computers.” He said that money was also

taken.

Mills underwent surgery to repair the stab wound to his stomach. He spent about

three and one-half weeks in the hospital. Mills did not give any of the three permission to

come into his house and steal his property.

At the time of the robbery, Ronald Preston, who was in a parked vehicle, saw an

Explorer park near his vehicle. Three individuals, Gardner, another man, and a woman,

got out of the Explorer and went into a house. A short time later, Preston saw two of them,
2
“Mr. Lewis” and “Ms. Rosemary,” leave the house and get in the Explorer. He did not see

Gardner get into the Explorer. After the Explorer left, the police arrived at the scene.

When Officer Kelli Griffin arrived at Mills’s home, Mills told her that “Rosemary

knocked on his door . . . . [H]e answered the door, [and] she started asking him questions

about where a house was. Mills said while he was trying to explain where this house was,

two other males entered the residence.” Mills told Officer Griffin that he had been

attacked. Officer Griffin, a former paramedic, testified that because of the amount of blood

she saw at the scene, she felt Mills’s injury could have been life threatening. She saw a

bloody butcher knife inside Mills’s garage, and she found a steak knife on his driveway.

When the prosecutor asked Officer Griffin, “[D]o you believe that if this [butcher] knife were

thrust into someone’s abdomen, that it could cause serious bodily injury or possibly

death?”, she replied, “Yes.” When the prosecutor asked her, “So, in your opinion, would

this [butcher] knife be considered a deadly weapon?”, she replied, “Yes, in my opinion, I

do.” On cross-examination, Officer Griffin said that Mills did not tell her that Rosemary

Pollard had said anything about leaving her purse at his house.

Gardner, Lewis, and Pollard gave Detective Sarah Jefferson-Simon statements

about their involvement in the incident. During the guilt-innocence stage, she read the

statements to the jury. In his statement, Gardner said he had picked up Pollard and Lewis

and that Pollard wanted to go to Mills’s house to get “dope.” Upon arrival, Pollard went to

Mills’s garage. About ten minutes later, she waved for Gardner and Lewis to come to the

garage. Lewis got out and told Gardner that he was “going to get some dope.” Gardner

drove around the block a couple of times, went to Mills’s door, and saw Mills “swinging at

Bobo [Lewis] because Bobo had a knife in one hand and a screwdriver in the other.” Lewis

was asking Mills where the dope was. Gardner went into the house, asked Mills where the
3
drugs were, and hit Mills with his fist. After they left Mills’s house, Pollard gave Gardner

$300. He said Lewis told him that he had stabbed Mills.

Pollard’s statement reflects that she, Gardner, and Lewis went to Mills’s house to

buy marihuana and that Gardner and Lewis attacked Mills, hitting him with their fists.

Lewis asked Mills where the money was. Mills told him he had $300 and that they could

take it. Pollard grabbed the money and took a camera. She said Gardner took Mills’s

laptop computer. She saw Gardner hit Mills twice with a steel pot. When they got in the

truck, Lewis said that he had “cut Mr. Mills.”

In his statement, Lewis stated that he, Pollard, and Gardner went to Mills’s house

to buy marihuana. When Lewis gave Mills five dollars, Mills “went to tripping and swung

off from me, and I swung back at him, and the fight ensued.” Mills grabbed a knife, and

during the fight, Mills “some kind of way” “got stabbed, and once that happened, everybody

left the house, because Ronald [Mills] was hollering.” Lewis said that he left on foot and

that the others left in the truck. He later met with Pollard and Gardner at which time Pollard

gave them each $100.

B. Defense Evidence

Gardner testified that at the time in question, he, Lewis, and Pollard went to Mills’s

house for the purpose of getting some blunts (marihuana rolled up in a cigar). Upon

arrival, Pollard went into the house and then returned, telling them Mills did not have any

marihuana. Lewis decided to ask Mills himself and went into the house. About two

minutes later, he and Pollard went to the house and saw Mills and Lewis “tussling.” Mills

was “swinging his hands” and Lewis “was going at him like this with a knife.” Gardner

testified that “When I stepped in, Mr. Mills, he seen me, and he hit me upside my head,

4
and out of reflex, I struck him out. I admit, I did hit the man.” Gardner left after he saw

what was going on. He denied any involvement in the robbery. He said that he and

Pollard left in the vehicle and that Pollard gave him about $300. Gardner testified that after

the incident, he “hauled tail” and went to Beaumont.

Gardner testified that he had two felony convictions, one for delivery of a controlled

substance and the other for unauthorized use of a motor vehicle.

Neither Lewis nor Pollard testified at trial.

II. Discussion

A. Sufficiency of the Evidence

In his first issue, Gardner challenges the legal and factual sufficiency of the

evidence to support his conviction. In reviewing the legal sufficiency of the evidence, we

view all the evidence in the light most favorable to the verdict in order to determine whether

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hampton v. State, 165

S.W.3d 691, 693 (Tex. Crim. App. 2005). This standard gives full play to the responsibility

of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. The

trier of fact is the sole judge of the weight and credibility of the evidence. TEX . CODE CRIM .

PROC . ANN . art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim.

App. 2000). Thus, when performing a legal-sufficiency review, we may not re-evaluate the

weight and credibility of the evidence and substitute our judgment for that of the fact-finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any

inconsistencies in the evidence in favor of the judgment. Curry v. State, 30 S.W.3d 394,

5
406 (Tex. Crim. App. 2000).

In reviewing a factual sufficiency claim, we review the evidence in a neutral light

rather than the light most favorable to the verdict. Neal v. State, 256 S.W.3d 264, 275

(Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007)

(citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)). Evidence is factually

insufficient if the evidence supporting the verdict is so weak that the verdict seems clearly

wrong and manifestly unjust, or if the supporting evidence is outweighed by the great

weight and preponderance of the contrary evidence so as to render the verdict clearly

wrong and manifestly unjust. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing

Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). We do not reverse for

factual insufficiency if the greater weight and preponderance of the evidence actually

favors conviction. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing Watson,

204 S.W.3d at 417).

1. The Charge

In this case, the jury could convict Gardner of aggravated robbery if they believed

from the evidence beyond a reasonable doubt that on or about November 2, 2006, in

Orange County, Texas either:

STEVEN CURTIS LEWIS, did then and there, while in the course of
committing theft and with intent to obtain and maintain control of property of
Ronald Mills, Jr., without the effective consent of the said Ronald Mills, Jr.,
and with intent to deprive the said Ronald Mills, Jr., of said property, did then
and there by using or exhibiting a deadly weapon, to wit: a knife, that in the
manner of its use and intended use is capable of causing serious bodily
injury or death, intentionally or knowingly cause bodily injury to Ronald Mills,
Jr., by stabbing the said Ronald Mills, Jr., with said knife, and JONATHAN
KEITH GARDNER, acting with the intent to promote or assist in the
commission of the offense of aggravated robbery, aided or attempted to aid
STEVEN CURTIS LEWIS to commit the offense of aggravated robbery;

6
 OR

JONATHAN KEITH GARDNER entered into a conspiracy with STEVEN
CURTIS LEWIS to commit the felony offense of robbery, and attempted to
carry out that conspiracy, and in such attempt the felony of aggravated
robbery was committed, and you further find the offense of aggravated
robbery was committed in furtherance of the unlawful purpose of committing
robbery, and you further find the offense of aggravated robbery should have
been anticipated as a result of the carrying out of the conspiracy[.]

2. Elements of Aggravated Robbery

Section 29.02(a)(2) of the penal code defines robbery as follows: “A person

commits an offense if, in the course of committing theft . . . and with intent to obtain or

maintain control of the property, he . . . intentionally or knowingly threatens or places

another in fear or imminent bodily injury or death.” TEX . PENAL CODE ANN . § 29.02(a)(2)

(Vernon 2003). The offense becomes aggravated if the person “uses or exhibits a deadly

weapon.” Id. § 29.03(a)(2). The phrase, “‘In the course of committing theft’” is defined as

“conduct that occurs in an attempt to commit, during the commission, or in immediate flight

after the attempt or commission of theft.” Id. § 29.01(1). A person is guilty of an attempted

offense “if, with specific intent to commit an offense, he does an act amounting to more

than mere preparation that tends but fails to effect the commission of the offense

intended.” Id. § 15.01(a).

3. Knife as a Deadly Weapon

Section 1.07(a)(17)(B) of the penal code defines deadly weapon as: “anything that

in the manner of its use or intended use is capable of causing death or serious bodily

injury.” TEX . PENAL CODE ANN . § 1.07(a)(17)(B) (Vernon Supp. 2008). Regarding this

section’s meaning, the court of criminal appeals has stated: “The provision's plain

language does not require that the actor actually intend death or serious bodily injury; an

7
object is a deadly weapon if the actor intends a use of the object in which it would be

capable of causing death or serious bodily injury.” Bailey v. State, 38 S.W.3d 157, 159

(Tex. Crim. App. 2001) (quoting McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.

2000)).

A knife is not a deadly weapon per se,2 and in this case, the jury was instructed that

a deadly weapon is “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” See TEX . PENAL CODE ANN . § 1.07(a)(17)(B)

(defining a deadly weapon); McCain, 22 S.W.3d at 503 (holding that “the mere carrying of

a butcher knife during such a violent attack as occurred in . . . [that] case was legally

sufficient for a factfinder to conclude that the ‘intended use’ for the knife was that it be

capable of causing death or serious bodily injury”). Factors to consider in determining

whether a knife was capable of causing death or serious bodily injury include (1) the knife’s

dimensions, (2) the nature of the wounds it inflected, (3) the manner of its use, (4)

testimony of its life-threatening capabilities, (5) the physical proximity between the victim

and the knife; and (6) the words spoken by the defendant. See, e.g., Thomas v. State, 821

S.W.2d 616, 619 (Tex. Crim. App. 1991); Tisdale v. State, 686 S.W.2d 110, 115 (Tex.

Crim. App. 1984) (op. on reh'g); Lowe v. State, 211 S.W.3d 821, 828 (Tex.

App.–Texarkana 2006, pet. ref’d).

4. Law of Parties

The charge authorized Gardner’s conviction as a party to aggravated robbery

pursuant to penal code section 7.02(a)(2) or (b).

a. Section 7.02(a)(2)

2
See Thomas v. State, 821 S.W .2d 616, 620 (Tex. Crim . App. 1991).

8
 Section 7.02(a)(2) states that: “(a) A person is criminally responsible for an offense

committed by the conduct of another if: . . . “(2) acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense[.]” TEX . PENAL CODE ANN . § 7.02(a)(2) (Vernon 2003).

Thus, in order to convict Gardner of aggravated robbery under section 7.02(a)(2), the State

had to prove that he aided and abetted Lewis with respect to each element of the offense.

Woods v. State, 749 S.W.2d 246, 248 (Tex. App.–Fort Worth 1988, no pet.).

b. Legal & Factual Sufficiency of the Evidence to Support Conviction Under 7.02(a)(2)

“Evidence is sufficient to support a conviction under the law of parties where the

actor is physically present at the commission of the offense, and encourages the

commission of the offense either by words or other agreement.” Burdine v. State, 719

S.W.2d 309, 315 (Tex. Crim. App. 1986); Cordova v. State, 698 S.W.2d 107, 111 (Tex.

Crim. App. 1985). The evidence must show that at the time of the offense, the parties

were acting together, each contributing some part towards the execution of their common

purpose. Burdine, 719 S.W.2d at 315. In determining whether a defendant participated

in an offense as a party, the court may examine the events occurring before, during, and

after the commission of the crime and may rely on the defendant’s actions that show an

understanding and common design to commit the crime. Burdine, 719 S.W.2d at 315;

Cordova, 698 S.W.2d at 111; Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985).

c. Analysis

A rational jury could have determined the following from the evidence that: (1)

Gardner and Lewis came into Mills’s home, and both told him, “This is a robbery, fool”; (2)

Gardner tried to knock out Mills and wanted to tie him up; (3) while Mills fought Lewis,

9
Gardner found some knives, and both men tried to stab Mills; (4) Gardner asked Mills for

money and told him they were going to kill him; (5) Lewis stabbed Mills in the stomach with

a butcher knife; (6) the men took a laptop computer from Mills’s kitchen; (7) Mills did not

give Gardner, Lewis, or Pollard permission to take his property; (8) because of the amount

of blood that she saw, Officer Griffin felt that Mills’s injury could have been life threatening;

(9) Officer Griffin considered the butcher knife a deadly weapon; (10) Mills had surgery to

repair the stab wound caused by the butcher knife; and (11) Gardner, Lewis, and Pollard

fled the scene after the robbery, and Gardner went to Beaumont.

The contrary evidence showed that: (1) according to Gardner’s testimony, he had

no involvement in the robbery; (2) Gardner did not plan with anyone to rob Mills; (3) Mills

testified Pollard came to his house for her purse, but Officer Griffin testified Mills did not

say anything about Pollard coming to his house for her purse; (4) Gardner took Pollard to

Mills’s house so she could get some “dope” or “blunts”; and, (5) Gardner did not stab Mills.

Viewing the evidence in the light most favorable to the verdict, we hold there was

legally sufficient evidence to find Gardner guilty as a party under section 7.02(a)(2). The

evidence showed beyond a reasonable doubt that: (1) the butcher knife used by Lewis to

stab Mills in the stomach was, in the manner of its use and intended use, capable of

causing death or serious bodily injury and, thus, a deadly weapon; (2) that in the course

of committing theft and with the intent to obtain or maintain control of property, Lewis

intentionally or knowingly threatened or placed Mills in fear of imminent bodily injury or

death by using or exhibiting the butcher knife as a deadly weapon; and (3) that Gardner

acted with the intent to promote or assist Lewis's commission of aggravated robbery, and

he aided or attempted to aid Lewis by telling Mills they were there to rob him, trying to

10
knock him out, wanting to tie him up, trying to stab him, and taking Mills’s laptop computer.

Viewing the evidence neutrally, we conclude that the evidence is not so contrary to

the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust or that

the proof of guilt is against the great weight and preponderance of the evidence. See

Watson, 204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 11. Accordingly, we hold that

the evidence is legally and factually sufficient to support Gardner’s conviction as a party

under section 7.02(a)(2).

d. Section 7.02(b)

Under penal code section 7.02(b), a person is criminally responsible for an offense

committed by the conduct of another if:

[I]n the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators are
guilty of the felony actually committed, though having no intent to commit it,
if the offense was committed in furtherance of the unlawful purpose and was
one that should have been anticipated as a result of the carrying out of the
conspiracy.

TEX . PENAL CODE ANN . § 7.02(b) (Vernon 2003).

A conspiracy exists when two or more persons as shown by words or deeds agree

to do an unlawful act. Butler v. State, 758 S.W.2d 856, 860 (Tex. App.–Houston [14th

Dist.] 1988, no pet.). An agreement may be inferred from the parties’ acts, Snow v. State,

721 S.W.2d 943, 948 (Tex. App.–Houston [1st Dist.] 1986, no pet.), and the State may

prove conspiracy by circumstantial evidence. Butler, 758 S.W.2d at 860. The agreement

must be before or contemporaneous with the criminal event. Beier v. State, 687 S.W.2d

2, 4 (Tex. Crim. App. 1985). While an agreement of the parties to act together in a

common design seldom can be proven by direct evidence; reliance, therefore, may be

placed upon the actions of parties, showing by either direct or circumstantial evidence an

11
understanding and common design to do a certain act. Rivera v. State, 990 S.W.2d 882,

887 (Tex. App.–Austin 1999, pet. ref’d), see Burdine, 719 S.W.2d at 315.

e. Legal & Factual Sufficiency of the Evidence to Support a Conviction Under 7.02(b)

Notwithstanding conflicting evidence, the jury was free to conclude Gardner

conspired with Lewis to commit the robbery of Mills. Burdine, 719 S.W.2d at 314. The

evidence established an implicit agreement between Gardner and Lewis to rob Mills. After

Gardner and Lewis entered Mills’s house, both of them told Mills, “‘This is a robbery, fool.’”

Gardner tried to knock out Mills and wanted to tie him up. Gardner grabbed knives from

the kitchen table, and both men tried to stab Mills. When neither could subdue him, Lewis

stabbed Mills in the stomach with a butcher knife. After that, Gardner helped Lewis take

Mills’s property. Gardner fled the scene and then “hauled tail” to Beaumont.

Viewing the evidence in the light most favorable to the verdict, we hold the jury could

find beyond a reasonable doubt: Gardner and Lewis entered into a conspiracy to rob Mills

and attempted to carry out that conspiracy; in such attempt, the offense of aggravated

robbery was committed in furtherance of the unlawful purpose of committing robbery; and

Gardner should have anticipated the aggravated robbery as a result of the carrying out of

the conspiracy. The jury, therefore, was free to conclude that Gardner conspired with

Lewis to commit the robbery of Mills and that each of them were “contributing some part

towards the execution of their common purpose.” See Burdine, 719 S.W.2d at 314; Snow,

721 S.W.2d at 949.

Viewing the evidence neutrally, we conclude the evidence is not so contrary to the

overwhelming weight of the evidence as to be clearly wrong or manifestly unjust or that the

proof of guilt is against the great weight and preponderance of the evidence. See Watson,

12
204 S.W.3d at 414-15, 417; Johnson, 23 S.W.3d at 11. Accordingly, we hold that the

evidence is legally and factually sufficient to support Gardner’s conviction as a party under

section 7.02(b). Issue one is overruled.

B. Jury Unanimity

In his second issue, Gardner argues the trial court, over counsel’s objection, erred

in disjunctively submitting the case to the jury without requiring the jury to unanimously

agree on which subsection—7.02(a)(2) or 7.02(b)—of the penal code was applicable to

him. The charge authorized the jury to convict Gardner of aggravated robbery if the jury

found he either assisted Lewis to commit aggravated robbery (section 7.02(a)(2)) or

conspired with Lewis, who committed aggravated robbery in furtherance of the conspiracy

(section 7.02(b)).

In reviewing the charge, we must first decide whether error exists. Middleton v.

State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we must perform a

harm analysis. Id.

The Texas Constitution includes a due course of law protection along with the

requirement that only a unanimous jury may convict a defendant charged with a felony.

See TEX . CONST . art. I, § 19, art. V, § 13; see also TEX . CODE CRIM . PROC . ANN . art.

36.29(a) (Vernon Supp. 2008). The Sixth Amendment guarantees a right to trial by jury

while the Fourteenth Amendment contains due process protections, which the Supreme

Court has determined require juries to find every element of a charged offense beyond a

reasonable doubt. See U.S. CONST . amends. VI, XIV; In re Winship, 397 U.S. 358, 364

(1970). The penal code also requires that “no person may be convicted of an offense

unless each element of the offense is proved beyond a reasonable doubt.” TEX . PENAL

13
CODE ANN . § 2.01 (Vernon 2003).

Therefore, if a person is charged with two different offenses, a jury may only convict

the person of both offenses if the jury unanimously agrees the State has proven every

element of each offense beyond a reasonable doubt. Hanson v. State, 55 S.W.3d 681,

693 (Tex. App.–Austin 2001, pet. ref’d). When a defendant is tried for two different and

separate offenses, a general jury charge including both offenses submitted in the

disjunctive would be inappropriate. Id.

This rule, however, does not apply to alternate methods or means by which an

accused is charged with committing the one-charged offense. In Hanson v. State, Hanson

was charged with the single offense of capital murder, and the charge authorized

conviction on a finding that he either assisted another to commit the offense (under section

7.02(a)(2)) or conspired with another who committed the offense in furtherance of the

conspiracy (under section 7.02(b)). Id. at 694. Like the charge in the case before this

Court, the charge in Hanson was submitted in two separate application paragraphs joined

by “or.” See id. at 693. The Hanson court stated, “The two alternate theories of party

liability were merely alternate methods or means by which [Hanson] committed the one

charged offense. Jury unanimity as to which theory of party liability applied was not

necessary, and the general verdict of guilt was proper so long as either theory was proved.”

Id. at 694. Hanson further argued that because subsections (a)(2) and (b) of penal code

section 7.02 assign criminal liability, they are offenses. And, because they do not contain

the same elements, they are different offenses. Id. The Hanson court disagreed, stating,

“Section 7.02 does not independently define criminal conduct or prescribe punishment

therefor. Instead, section 7.02 enumerates the various ways in which a person can be held

14
criminally responsible for another's criminal conduct, as that conduct is defined elsewhere

in the code.” Id. at 694-95.

Here, Gardner was charged with the single offense of aggravated robbery, and the

charge authorized conviction on a finding he either assisted Lewis to commit the offense

(under section 7.02(a)(2)) or conspired with Lewis, who committed the offense in

furtherance of the conspiracy (under section 7.02(b)). We have held the evidence is legally

and factually sufficient to establish guilt under either theory. Therefore, jury unanimity with

respect to which theory of party liability applied was not necessary, and the general verdict

of guilty was proper. See id. at 694-95, see also Goff v. State, 931 S.W.2d 537, 544-45

(Tex. Crim. App. 1996) (court held jury charge telling jury they could find defendant guilty

based on either his own actions or another’s actions (liability as a party) not erroneous);

Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991).3 The second issue is

overruled.

C. Conspiracy Instruction

In his third issue, Gardner argues the trial court erred by improperly instructing the

jury regarding the law of conspiracy. We disagree. Specifically, he complains the court’s

instruction: “An agreement constituting a conspiracy may be inferred from the acts of the

parties” constituted a comment on the weight of the evidence and is a misstatement of the

3
In Kitchens, the defendant argued that all twelve jurors had to either find he com m itted sexual assault
or robbery (or both) to convict him of capital m urder. The charge included an alternative subm ission of m urder
in the course of com m itting robbery or sexual assault; thus, each juror was allowed to vote guilty if he or she
found he com m itted or attem pted to com m it either underlying felony. Kitchens v. State, 823 S.W .2d 256, 257
(Tex. Crim . App. 1991). The court rejected his argum ent that the charge concealed a verdict that was not
unanim ous. Id. at 258. The court stated, “It is appropriate where the alternative theories of com m itting the
sam e offense are subm itted to the jury in the disjunctive for the jury to return a general verdict if the evidence
is sufficient to support a finding under any of the theories subm itted.” Id. The court continued that a jury need
not agree on the “prelim inary factual issues which underlie the verdict.” Id. (quoting Schad v. Arizona, 501
U.S. 624, 651 (1991)).

15
law.4

The trial court, in explaining the law of parties under penal code § 7.02(b), instructed

the jury as follows:

[I]n the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators are
guilty of the felony actually committed, though having no intent to commit it,
if the offense was committed in furtherance of the unlawful purpose and was
one that should have been anticipated as a result of the carrying out of the
conspiracy.

A person commits criminal conspiracy if, with intent that a felony be
committed he agrees with one or more persons that they or one or more of
them engage in conduct that would constitute the offense and he or one or
more of them performs an overt act in pursuance of the agreement.

An agreement constituting a conspiracy may be inferred from the acts
of the parties.

(Emphasis added.)

1. Comment on the Weight of the Evidence

Article 36.14 of the code of criminal procedure provides that the trial court shall

submit a charge that sets forth “the law applicable to the case; not expressing any opinion

as to the weight of the evidence, not summing up the testimony, discussing the facts or

using any argument in his charge calculated to arouse the sympathy or excite the passions

of the jury.” TEX . CODE CRIM . PROC . ANN . art. 36.14 (Vernon 2007). The charge should

state the law applicable to the case, without expressing or intimating any opinion about the

credibility of the statements made by the party accused or by the witnesses. Russell v.

State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). A comment on the weight of the

evidence occurs when the charge “assumes the truth of a controverted issue,” Whaley v.

4
Defense counsel did not object to the charge on the basis that this instruction is a m isstatem ent of
the law.

16
State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986), or appraises the credibility of a particular

witness. Russell, 749 S.W.2d at 78. Thus, when a court, in its charge, suggests certain

evidence is either true or untrue, that is a comment on the weight of the evidence. Id.

Likewise, an instruction that instructs the jury on the weight to be given certain testimony

is error. Id. In determining whether an instruction is a comment on the weight of the

evidence, courts have assessed the instruction’s probable effect on the jury in the context

in which it was given. Id. at 79.

Here, looking at the complained-of instruction by itself,5 we find it to be neutral. It

does not in and of itself instruct the jury one way or another on how to weigh the evidence,

or that certain evidence is either true or untrue, it does not appraise the credibility of a

particular witness, and it does not assume the truth of a controverted issue. Further, when

read as a part of the whole charge, including the general instruction that the jury is the

exclusive judge of the credibility of the witnesses and the weight to be given to their

testimony, and when examined in light of the evidence presented at trial, the instruction

does not single out a particular piece of evidence for special attention. See id. We hold

the instruction did not constitute a comment on the weight of the evidence. See id. at 78;

Whaley, 717 S.W.2d at 32.

2. Misstatement of the Law

In Ladd v. State, the trial court gave the same instruction complained of by Gardner.

See 3 S.W.3d 547, 565 (Tex. Crim. App. 1999). The Ladd court stated, “We discern no

error. The Penal Code provides no definition for ‘conspiracy’ as that term is used in §

7.02(b). Therefore, the trial court need not have defined the term, but it certainly did not

5
See Russell v. State, 749 S.W .2d 77, 79 (Tex. Crim . App. 1988).

17
err in instructing the jury to give the term its commonly understood meaning.” Id. (citations

omitted). Further, subsection (b) of section 15.02 of the penal code (entitled “Criminal

Conspiracy”) provides: “An agreement constituting a conspiracy may be inferred from acts

of the parties.” TEX . PENAL CODE ANN . § 15.02(b) (Vernon 2003). We hold that the

complained-of instruction is not a misstatement of the law. See id. Issue three is

overruled.

D. Submission of the Section 7.02(b) Application Paragraph

In his fourth issue, Gardner argues that the trial court erred in submitting the section

7.02(b) application paragraph because it misapplied the law to the facts, was vague and

ambiguous, failed to link the legal definitions to the application paragraph, and did not

contain the elements to sustain a conviction. Counsel did not object to the charge on these

bases.

The section 7.02(b) application paragraph stated:

JONATHAN KEITH GARDNER entered into a conspiracy with STEVEN
CURTIS LEWIS to commit the felony offense of robbery, and attempted to
carry out that conspiracy, and in such attempt the felony of aggravated
robbery was committed, and you further find the offense of aggravated
robbery was committed in furtherance of the unlawful purpose of committing
robbery, and you further find the offense of aggravated robbery should have
been anticipated as a result of the carrying out of the conspiracy;

This language tracks the language found in section 7.02(b) of the penal code. See

TEX . PENAL CODE ANN . § 7.02(b) (Vernon 2003). A jury charge that tracks the language of

a particular statute is a proper charge on the statutory issue. Riddle v. State, 888 S.W.2d

1, 8 (Tex. Crim. App. 1994). Further, the charge correctly defined conspiracy for the jury.

We hold the trial court properly charged the jury pursuant to section 7.02(b). Even if the

court committed error, the error would be harmless because, as we have already

18
determined, the evidence in the record was both legally and factually sufficient under either

subsection of section 7.02. See Hanson, 55 S.W.3d at 695 (court concluded that “even

if the district court did commit error [by submitting 7.02(a)(2) and 7.02(b) application

paragraphs disjunctively], the error would be harmless because we have already

determined that the evidence in the record was both factually and legally sufficient under

either subsection of section 7.02”). Issue four is overruled.

E. Punishment Charge

In his fifth issue, Gardner argues the trial court erred by giving a jury instruction

about good-conduct time when he was not eligible for the application of this credit to his

sentence. He contends that given the fact he is ineligible for good-conduct time, the

instruction on the application of good-conduct time was misleading and calculated to cause

an improper verdict.

The pertinent portions of the charge, which are statutorily mandated by article 37.07,

section 4(a) of the code of criminal procedure,6 are as follows:

The Defendant, if sentenced to a term of imprisonment, may earn time
off the period of incarceration imposed through the 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.

It is also possible that the length of time of which the Defendant will
be imprisoned might be reduced by the award of parole.

6
Article 37.07, section 4(a) requires the trial court to inform the jury about the effects of parole and
good conduct tim e for every noncapital felony listed under T EX . C OD E C R IM . P R O C . A N N . art. 42.12, § 3g(a)
(Vernon Supp. 2008). T EX . C OD E C R IM . P R O C . A N N . art. 37.07, § 4(a) (Vernon Supp. 2008). Giving this
instruction is a blanket requirem ent, regardless of whether the defendant is actually eligible for such tim e. Id.

19
 You will be required to answer a Special Issue[7] whether the
Defendant used or exhibited a deadly weapon during the commission of this
offense.

If you answer “we do” to the Special Issue, the Defendant will not
become eligible for parole until the actual time served equals one-half of the
sentence imposed or thirty (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.

If you answer “we do not” to the Special Issue, the defendant will not
become eligible for parole until the actual time served plus any good conduct
time earned equals one-fourth of the sentence imposed. Eligibility for parole
does not guarantee that parole will be granted.

It cannot accurately be 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.

1. Standard of Review

Counsel did not object to these instructions. An unpreserved complaint about

charge error is reviewed for “egregious harm.” Almanza v. State, 686 S.W.2d 157, 171-72

(Tex. Crim. App. 1985) (op. on reh'g). This standard applies to erroneous parole and

good-conduct instructions. Igo v. State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006);

Jimenez v. State, 32 S.W.3d 233, 235-39 (Tex. Crim. App. 2000). Egregious harm is a

difficult standard that is determined on a case-by-case basis. Ellison v. State, 86 S.W.3d

226, 227 (Tex. Crim. App.2002). Errors that result in egregious harm are those that affect

7
The special issue asked the jury, “Do you find from the evidence beyond a reasonable doubt that the
Defendant, JONATHAN KEITH GARDNER, used or exhibited a deadly weapon, to wit: a knife, in the
com m ission of the offense of Aggravated Robbery as alleged in the indictm ent?” The jury answered, “W e do
not.”

20
“the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a

defensive theory.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (citing

Almanza, 686 S.W.2d at 172). The harm to Gardner must be actual, not just theoretical.

Almanza, 686 S.W.2d at 174. In deciding whether egregious harm exists, we look at (1)

the charge itself, (2) the state of the evidence, including contested issues, (3) the

arguments of counsel, and (4) any other relevant information revealed by the record of the

trial as a whole. Hutch, 922 S.W.2d at 171.

Gardner argues that because the jury found him guilty of aggravated robbery, an

enumerated offense under article 42.12, section 3g(a)(1)(F) of the code of criminal

procedure, he does not attain parole eligibility until his “actual calendar time served, without

consideration of good conduct time, equals one-half of the sentence. . . .” TEX . GOV’T

CODE ANN . § 508.145(d) (Vernon Supp. 2008).8 He raises two complaints about the

aforementioned instructions. First, he complains the charge instructed the jury his

sentence may be reduced through the award of good-conduct time, which is false because

he will not be credited for good-conduct time in terms of calculating his parole eligibility.

Second, he argues the charge essentially instructed the jury, that if it answers “we do not”

to the Special Issue,” he “will not become eligible for parole until the actual time served

plus any good conduct time earned equals one-fourth of the sentence imposed,” which is

8
Section 508.145(d) of the governm ent code provides that:

An inm ate serving a sentence for an offense described by Section 3g(a)(1)(A), (C,
(D), (E), (F), (G), (H), or (I), Article 42.12, Code of Crim inal Procedure, or for an offense for
which the judgm ent contains an affirm ative finding under Section 3g(a)(2) of that article, is
not eligible for release on parole until the inm ate’s actual calendar tim e served, without
consideration of good conduct tim e, equals one-half of the sentence or 30 calendar years,
whichever is less, but in no event is the inm ate eligible for release on parole in less than two
calendar years.

T EX . G O V ’T C OD E A N N . § 508.145(d) (Vernon Supp. 2008).

21
incorrect because he will not be parole eligible until he served at least one-half of his

sentence.

2. Gardner’s First Complaint

The nature of Gardner’s first complaint—that the charge erroneously states that his

sentence may be reduced through the award of good-conduct time—arises from the parole

and mandatory supervision laws. See TEX . GOV’T CODE ANN . ch. 508 (Vernon 1998 &

Supp. 2008) (entitled “Parole and Mandatory Supervision”). Gardner becomes parole

eligible when he has served the lesser of thirty years or one-half his sentence, and good-

conduct time is not to be considered in that calculation. Id. at § 508.145(d). If an inmate

is not released on parole, he or she may be released on “mandatory supervision” when the

inmate’s actual time served plus any good-conduct time equals the sentence. Id. §§

508.147, 508.149(b) (Vernon 1998 & Supp. 2008). Gardner is not eligible for mandatory

supervision because of his crime–aggravated robbery. Id. § 508.149(a)(12) (Vernon Supp.

2008). Thus, good-conduct time has no bearing on his release date under either parole

or mandatory supervision. Yet the charge instructed the jury Gardner “may earn time off

the period of incarceration through the award of good conduct time,” thereby implying that

it had some bearing on his release date regardless of how the jury answered the Special

Issue. He claims the instruction is erroneous in his case.

Courts of appeals have considered this issue and have concluded that it is not error

to give the instruction from article 37.07, section 4(a). See Alawad v. State, 57 S.W.3d 24,

26 (Tex. App.–Houston [14th Dist.] 2001, pet. ref’d); Martinez v. State, 969 S.W.2d 497,

501 (Tex. App.–Austin 1998, no pet.); Garcia v. State, 911 S.W.2d 866, 869 (Tex. App.–El

Paso 1995, no pet.). More recently, in Luquis v. State, Luquis challenged the trial court’s

22
submission of the statutorily mandated parole-law instruction at the punishment stage. 72

S.W.3d 355, 357 (Tex. Crim. App. 2002). Gardner argued that because he was not eligible

for release on mandatory supervision, the court erred in giving the instruction concerning

good-conduct time. Id. His core complaint was that the parole law instruction language

concerning good-conduct time is misleading and erroneous because he was not, in fact,

eligible for release on mandatory supervision. Id. at 362. In its analysis, the court of

criminal appeals considered: (1) the instruction in context of the entire charge; (2) whether

the record showed the jury discussed, considered, or tried to apply what they were told

about good-conduct time and parole; (3) that the record did not give any indication, such

as a jury note, that the jury was confused about the possible application of good-conduct

time in the case; and (4) the punishment the jury assessed. Id. at 366-67. The court of

criminal appeals concluded that Luquis had not shown that the instruction “was calculated

to mislead this jury or that there is a reasonable probability that it did mislead this jury.” Id.

at 367. Therefore, the trial court did not err in submitting the instruction. Id. at 368.

Application of Luquis factors

1. The Instruction in the Context of the Entire Charge

The instruction did inform the jury, in accordance with the statute, that they were not

to consider the manner in which the parole law may be applied to Gardner. We, like the

Luquis court, assume the jury followed this instruction. See id. at 366.

2. Whether the Record Showed the Jury Discussed, Considered, or Tried to Apply
What They Were Told About Good-Conduct Time & Parole

Nothing in the record suggests the jury discussed, considered, or tried to apply

(despite the judicial admonition not to apply) what it was told about good-conduct time and

parole. The prosecutor did not urge the jury to assess a greater sentence based upon any

23
potential good-conduct time credits.

3. Whether the Record Gave Any Indication the Jury Was Confused About the
Application of Good-Conduct Time

The jury did not send out any notes indicating or expressing confusion about the

possible application of good-conduct time to Gardner. Further, the record does not include

any affidavits from jurors showing they were confused about the application of good-

conduct time to him.

4. Punishment Assessed

Aggravated robbery is a first-degree felony9 punishable by five to ninety-nine years

or life in prison, plus a fine not to exceed $10,000. TEX . PENAL CODE ANN . § 12.31(a), (b)

(Vernon 2003). The prosecutor, during closing argument at the punishment stage, told the

jury, “I’m not going to sit here and ask you to send him away for life. . . . I might think that

around 20 or 25 would be a fair number.” Despite this argument, the jury assessed a

twelve-year sentence, plus a $10,000 fine. Considering the crime, Gardner’s role in it, and

his prior criminal history, the sentence falls within the low end of the punishment range.

After applying the Luquis factors, we hold the instruction was neither misleading nor

was it calculated to cause an improper verdict. See Luquis, 72 S.W.3d at 367.

3. Gardner’s Second Complaint

The nature of Gardner’s second complaint—the charge incorrectly instructed the

jury he would be parole eligible after serving one-fourth of his sentence—stems from the

required deadly weapon finding. The required deadly weapon finding mandated the court

instruct the jury that Gardner would not become parole eligible until the actual time served

equals the lesser of one-half of the sentence imposed or thirty years, without consideration

9
T EX . C OD E C R IM . P R O C . A N N . art. 29.03(b) (Vernon 2003).

24
of any good-conduct time. The erroneous charge instructed the jury that Gardner “will not

become eligible for parole until the actual time served plus any good conduct time earned

equals one-fourth of the sentence imposed.”

The argument that egregious harm exists in this situation is that, based on the

erroneous instruction, the jury, in assessing a twelve-year sentence, thought Gardner

would have to serve at least one-fourth of the imposed sentence, or three years, but he

actually must serve at least one-half, or six years. As a result, the jury might have

assessed a greater punishment, which would mean Gardner must actually serve a longer

sentence than the jury would have assessed had the court given them the correct

instruction.

Several cases have addressed egregious harm in the context of a punishment

charge containing errors and omissions in the parole and good-conduct instructions.

Several common threads run among those cases. The first factor to consider is the

presumption the jury followed the charge's instructions. See Luquis, 72 S.W.3d at 366;

Parker v State, 119 S.W.3d 350, 357 (Tex. App.–Waco 2003, pet. ref’d); Newman v. State,

49 S.W.3d 577, 581 (Tex. App.–Beaumont 2001, pet. ref'd). Thus, we presume the jury

followed the court's instruction10 and did not consider parole. See Shavers v. State, 985

S.W.2d 284, 291 (Tex. App.–Beaumont 1999, pet. ref'd); Williams v. State, 975 S.W.2d

375, 378 (Tex. App.–Waco 1998, pet. ref'd). Absent evidence or indications to the

contrary, this presumption prevails. Shavers, 985 S.W.2d at 291; Love v. State, 909

S.W.2d 930, 935 (Tex. App.–El Paso 1995, pet. ref'd); Clayton v. State, 767 S.W.2d 504,

10
In this case, the trial court instructed the jury: ”However, you are not to consider the extent to which
good conduct tim e m ay be awarded to or forfeited by this particular defendant [Gardner]. You are not to
consider the m anner in which the parole law m ay be applied to this particular defendant.”

25
506 (Tex. App.–Amarillo 1989, pet. ref'd).

When there is a note from the jury regarding parole or good-conduct time, courts

are more prone to find egregious harm. See, e.g., Villarreal v. State, 205 S.W.3d 103,

107-10 (Tex. App.–Texarkana 2006, pet. dism'd); Rogers v. State, 38 S.W.3d 725, 728-29

(Tex. App.–Texarkana 2001, pet. ref'd); Ramos v. State, 831 S.W.2d 10, 17-18 (Tex.

App.–El Paso 1992, pet. ref'd).

Another factor is the State's emphasis in argument on the possibility of parole. See,

e.g., Rogers, 38 S.W.3d at 730. And, courts also sometimes consider the assessment of

a high or maximum sentence. See, e.g., Villarreal, 205 S.W.3d at 109-10; Rogers, 38

S.W.3d at 730.

Courts generally agree that the parole instruction was designed to favor the State

and to increase sentences. See Arnold v. State, 786 S.W.2d 295, 300 (Tex. Crim. App.

1990); Williams, 975 S.W.2d at 378; Myres v. State, 866 S.W.2d 673, 674 (Tex.

App.–Houston [1st Dist.] 1993, pet. ref'd); Grigsby v. State, 833 S.W.2d 573, 576 (Tex.

App.–Dallas 1992, pet. ref'd). But it can help the defendant because the jury could learn

that the defendant would serve longer than it expected and could be influenced to assess

less time. Williams, 975 S.W.2d at 378 (citing Myres, 866 S.W.2d at 674).

A case similar to Gardner's is Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006).

In that case, at the punishment stage of Igo’s trial for sexual assault, the court erroneously

instructed the jury that he would not become parole eligible until the actual time served,

plus good time, equaled one-fourth of the sentence imposed. Id. at 646. The court should

have instructed the jury Igo would not become parole eligible until the actual time served,

without considering good time, equaled one-half of the sentence imposed. Id. Igo did not

26
object to the charge, and he received the maximum sentence. Id. at 646-47. Finding no

egregious harm, the court of criminal appeals stated:

First, the parole instruction contained the standard curative language
admonishing the jury not to consider the extent to which the parole law might
be applied to the defendant. Second, parole was not mentioned by either
counsel during argument on punishment. And finally, the evidence relating
to punishment was exceptionally strong.

Id. at 647.

Here, there is no indication that the jury improperly considered the effect of parole

or good-conduct time. The punishment range was five to ninety-nine years or life, and the

twelve-year sentence is not extreme, given Gardner's two prior felony convictions along

with the fact that Mills received a serious stab wound during the incident. The prosecutor

did not urge the jury to calculate Gardner’s sentence from the parole instructions. There

was no indication that the jury failed to follow the instruction to not consider the extent to

which parole or good-conduct time may affect Gardner. We can acknowledge by

speculation that the jury may have calculated that Gardner would have to serve three years

before he could be released, but speculation leads only to theoretical harm, rather than

actual harm. Almanza, 686 S.W.2d at 174 (harm must be actual, not just theoretical);

Curry v. State, 222 S.W.3d 745, 753 (Tex. App.–Waco 2007, pet. ref'd).

Considering the record as a whole, we hold that the erroneous parole and good-

conduct instructions did not prevent Gardner from receiving a fair and impartial trial or

cause egregious harm. See Igo, 210 S.W.3d at 647-48; Williams, 975 S.W.2d at 378.

Issue five is overruled.

27
 III. Conclusion

Having overruled all of Gardner's issues, we affirm the trial court's judgment.

ROSE VELA
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 2nd day of October, 2008.

28