In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00027-CR
ROBERT ANTHONY PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2012-401-C1, Honorable Ralph T. Strother, Presiding
November 13, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant Robert Anthony Perez appeals his convictions on three counts of
failure to stop and render aid. He pled guilty and his punishment was assessed by a
jury at fifteen years on each count. In challenging his convictions, he contends 1) the
jury charge was in error because it implied that a person can be released early without
parole supervision due to good conduct time, 2) the jury charge improperly instructed
the jury not to consider sympathy in its deliberations, and 3) the judgments are in error
because they show that appellant was convicted of a second degree felony. We modify
the judgments and, as modified, affirm them.1
Issue 1 – Jury Charge on Good Conduct Time
In his first issue, appellant claims language in the jury charge implied that he
might obtain early release on the basis of good conduct time without reference to
parole. This, according to appellant, could have caused the jury to give a longer
sentence. We overrule the issue.
The instruction alluded to is that required by article 37.07 § 4(c) of the Code of
Criminal Procedure regarding good conduct time and parole.2 A like argument was
1
This appeal being transferred from the Tenth Court of Appeals, we are obligated to apply
precedent of the latter court when addressing the issues at hand. TEX R. APP. P. 41.3 (requiring the Court
of Appeals to which a case is transferred to decide the case in accordance with the precedent of the
transferor court).
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The instruction mandated by article 37.07 Sec.4(c) reads:
Under the law applicable in this case, 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 for which the defendant will be imprisoned might
be reduced by the award of parole.
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 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.
TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(c) (West Supp. 2012).
2
expressly rejected by the Tenth Court of Appeals in Lopez v. State, No. 10-12-00282-
CR, 2013 Tex. App. LEXIS 1229, at *3-4 (Tex. App.—Waco February 7, 2013, pet.
ref’d) (not designated for publication) (overruling the issue that the jury charge should
have been supplemented to explain that good conduct time is tied to parole). We are
bound by that precedent at bar.
Issue 2 – Instruction on Sympathy
Next, appellant contends that the directive appearing in the jury charge
instructing the jury to forego the consideration of “sympathy” in its deliberations was
error. We overrule the issue for it too has been rejected by the Tenth Court of Appeals
in Wilson v. State, 267 S.W.3d 215, 219-20 (Tex. App.—Waco 2008, pet. ref’d).
Indeed, the Court of Criminal Appeals also stated that "anti-sympathy charges are
appropriate in that they properly focus the jury’s attention on those factors relating to the
moral culpability of the defendant.” Prible v. State, 175 S.W.3d 724, 737 (Tex. Crim.
App. 2005).
Issue 3 – Error in Judgments
Finally, appellant asserts that the judgments are in error because they show he
was convicted of a second degree felony as opposed to a felony of the third degree.
The State concedes the mistake, and we sustain the argument.
The offense of failing to stop and render aid is a third degree felony. TEX.
TRANSP. CODE ANN. § 550.021(C)(1) (West 2011) (stating the punishment is
imprisonment in the Department of Criminal Justice for not more than five years or
confinement in the county jail for not more than one year and a fine not to exceed
$5,000); TEX. PENAL CODE ANN. § 12.41(1) (West 2011) (stating that any conviction not
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obtained from prosecution under the Penal Code for which imprisonment in the
Department of Criminal Justice is a possibility is a felony of the third degree). However,
his punishment was enhanced to that applicable to a second degree felony due to a
prior conviction. Because a prior conviction does not increase the grade of the offense
but rather the punishment level, Ford v. State, 334 S.W.3d 230, 235 (Tex. Crim. App.
2011), reformation of the judgments is appropriate.
Accordingly, we modify the judgments to reflect that appellant was charged with
and convicted of a felony of the third degree and, as modified, affirm them.
Per Curiam
Do not publish.
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