IN THE
TENTH COURT OF APPEALS
No. 10-09-00307-CR
EVERETT EUGENE TURNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2009-305-C2
MEMORANDUM OPINION
Appellant Everett Eugene Turner pleaded guilty to the offenses of burglary of a
habitation and felon in possession of a firearm. See TEX. PENAL CODE ANN. §§ 30.02,
46.04 (Vernon 2011). He elected to have the jury assess his punishment and was
sentenced to twenty and five years’ imprisonment, respectively. This appeal ensued.
In his first issue, Turner contends that the trial court erred in giving the parole
law instruction required by article 37.07, section 4(a) of the Code of Criminal Procedure
in the punishment charge. Turner complains that the instruction language concerning
“good conduct time” is misleading because it improperly implies that a person may be
released from prison early without any parole solely due to accruing good conduct
time.
Because Turner did not object to the charge on this basis, error will not result in
reversal of his conviction in the absence of “egregioius harm.” Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In examining the record for
egregious harm, we consider the entire jury charge, the state of the evidence, the final
arguments of the parties, and any other relevant information revealed by the record of
the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury
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. Stuhler v. State, 218
S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006).
There is a presumption that the jury followed the charge’s instructions. See
Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002); Hooper v. State, 255 S.W.3d
262, 271 (Tex. App.—Waco 2008, pet. ref’d). Thus, we presume that the jury followed
the trial court’s instructions and did not consider parole: “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.” See Hooper, 255 S.W.3d at 271. Absent
evidence or indications to the contrary, this presumption prevails. Id. at 271-72.
Turner v. State Page 2
Turner has not demonstrated a reasonable likelihood that the jury was, in fact,
misled or that it assessed a higher sentence based upon any misconstruction of the
parole law charge. Nothing in the record suggests that the jury discussed, considered
or tried to apply (despite the judicial admonition not to apply) what they were told
about good conduct time and parole. Neither the prosecutor nor defense attorney
discussed good conduct time or parole in argument or urged the jury to assess a greater
(or lesser) sentence based upon good conduct time or parole. The jury did not send out
any notes indicating or expressing confusion about the possible application of good
conduct time or parole to Turner. Although Turner received the maximum sentence of
incarceration for the burglary offense, the jury did not assess any fines and only
assessed half the maximum sentence for the offense of felon in possession of a firearm.
See Luquis, 72 S.W.3d at 366-68; Hooper, 255 S.W.3d at 272.
Thus, assuming without deciding that the trial court erred, we conclude that any
alleged error did not result in egregious harm. We overrule Turner’s first issue.
In his second issue, Turner contends that the trial court erred by instructing the
jurors in the punishment charge that they should not let “sympathy” affect their
deliberations or verdict. We have previously decided this issue against Turner’s
position and see no occasion to revisit our ruling. See Wilson v. State, 267 S.W.3d 215,
219-20 (Tex. App.—Waco 2008, pet. ref’d) (citing Saffle v. Parks, 494 U.S. 484, 489, 110
S.Ct. 1257, 1260-61, 108 L.Ed.2d 415 (1990) (holding that jurors need not “be allowed to
base the sentencing decision upon the sympathy they feel for the defendant after
hearing his mitigating evidence”)). We overrule Turner’s second issue.
Turner v. State Page 3
Having overruled both Turner’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2011
Do not publish
[CR25]
Turner v. State Page 4
Everett Eugene Turner v. State
Combined Opinion