IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
Thirteenth Court of Appeals,
Harris County
Womack, J., filed a concurring opinion, in which Meyers and Price, JJ., joined.
I think the reason that there was no error in this case was given in a concurring opinion of Justice Frost of the Fourteenth Court of Appeals, (1) which was based on decisions of this court. It said, in part:
[I]n cases involving an article 37.07, section 4(a) jury instruction, the jury may base its assessment of punishment in part on consideration of a sentenced defendant's parole eligibility under the formula contained in the instruction; however, a jury may not base its assessment of punishment on speculation as to when, if ever, the defendant may be released on parole after becoming eligible for parole. See Ross [v. State], 133 S.W.3d [618 (Tex. Cr. App. 2004)] at 623-24; Turner [v. State], 87 S.W.3d [111 (Tex. Cr. App. (2002)] at 116-17; Dumesnil [v. State], (Tex. App.- Houston [14th Dist.] Jan. 17, 2002, no pet.), 2002 WL 58825, at *5-7 (indicating this construction of article 37.07, section 4(a) in determining appellant suffered egregious harm as a result of trial court's use of article 37.07, section 4(a) instruction stating that defendant would be eligible for parole after serving one-fourth of his sentence or fifteen years, whichever is less, in case in which defendant would not actually be eligible for parole until he had served one-half of his thirty-year sentence, whichever is less). Therefore, the jury instruction in article 37.07, section 4(a) that the jury is "not to consider the manner in which the parole law may be applied to this particular defendant" refers to speculation about when, if ever, this particular defendant might be released on parole. It does not refer to the jury's consideration of a sentenced defendant's parole eligibility under the formula contained in the instruction. (2)
Filed: September 12, 2007
Publish.
1. 2.