In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00375-CR
ADAM FELKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 73213-E, Honorable Douglas R. Woodburn, Presiding
February 12, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Following a jury trial, Adam Felker, appellant, was found guilty of the offense of
assault family violence which was enhanced to a third-degree felony by a previous assault
family violence conviction.1 At the punishment stage of trial, appellant pled true to an
enhancement for a prior felony conviction for the offense of sexual assault of a child.2
1 See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2018).
2 As enhanced, the third-degree felony offense was punishable as a felony of the second degree.
Id. § 12.42(a) (West Supp. 2018).
The jury assessed a fifteen-year prison sentence and a $2,000 fine. Appellant raises two
issues in this appeal. In his first issue, appellant contends that the trial court erred in
instructing the jury on parole law. In the second issue, appellant contends that the
prosecutor made improper comments regarding the application of parole law during
closing arguments of the punishment phase of trial. We affirm the judgment of the trial
court.
Background and Procedural History
Appellant does not challenge the sufficiency of the evidence to support his
conviction. Accordingly, we relate only those facts necessary to our disposition of
appellant’s two issues.
The indictment charging appellant with assault family violence with a previous
assault family violence conviction included an enhancement paragraph alleging a prior
felony conviction for the offense of sexual assault of a child. After the jury returned a
guilty verdict in the instant case, appellant pled true to the enhancement for a prior felony
conviction, making the potential range of punishment two to twenty years. During
punishment, the State introduced appellant’s previous judgments of conviction to which
he stipulated: a class A misdemeanor possession of marijuana, a class A misdemeanor
failure to identify, a class B misdemeanor possession of marijuana, a class A
misdemeanor unlawful carrying of a weapon, a third-degree felony possession of
controlled substance, a class B possession of marijuana, and a second-degree felony
sexual assault of a child. Appellant testified and requested the minimum sentence.
As required by statute, the jury charge on punishment provided, in relevant part:
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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 any 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 be accurately 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.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(c) (West Supp. 2018). Appellant did not
raise any objection to the court’s charge during the trial.
During closing arguments, the prosecutor argued the following on parole:
This jury charge lists different things about parole. Now, you can’t
really consider what parole will do with this particular [d]efendant, but the
law does state that based on this offense, the time that you serve, plus good
time, must equal a quarter of your sentence and then you’re eligible.
Now, like I said, you can’t apply that to this particular defendant, but
if you’ve got 12, a quarter of that would be three, but that’s including good
time. Now, that’s not very long though. You can’t consider it for this
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particular defendant, but you can consider that that parole law does exist.
You have no control over that; I have no control over that.
What I’m asking you to do -- as far as the fine goes, I don’t care. If
you want to send a message to the citizens of Potter County that, you know
what, domestic violence is something that we will no longer tolerate, you
can give him a fine. If you choose not to, that’s okay -- but we know at least
six years did not work. What I’m asking you to do is to let him stay in long
enough, number one, to learn his lesson; number two, protect the next
woman that he comes in contact with . . . and, number three, make sure it’s
long enough that if he does screw up, he’s going to be there a while.
I’m asking you to give him at least 12; if you want more than that,
fine. . . . He keeps doing the same things over and over; he keeps trying to
control the people around him; and his resume says I’ve earned it. So that’s
what I’m going to ask you to do; somewhere over 12. I’m going to ask you
to go back there, talk it over, and if he does what he’s supposed to, great.
He’s learned his lesson. But if he doesn’t, we want to make sure that the
next [victim] is protected and doesn’t wind up like the girl in those pictures.
In response, the defense argued:
I’m requesting -- [appellant] and I are requesting that you give him a
minimum sentence. And one of the things that the Jury Charge says is that
you can’t consider the application of parole on his sentence. You can’t say,
if we give him 12, he’s only going to get three. We don’t know. We don’t
know because—we do not know. So you can’t divide your sentence like
that and say, well, if we give him 12, he’s only going to get three. That’s not
proper; don’t do that.
We’re asking that you give him the minimum time.
Appellant did not make any objection to the jury argument. Although appellant
filed a motion for new trial, he did not mention any purported error in the charge or the
State’s argument.
Issue 1: The parole-law instruction
In his first issue, appellant claims that the inclusion of the standard parole-law
instruction in his punishment charge violated his right to due process under the United
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States Constitution and the Texas Constitution. Appellant contends that additional
information concerning parole law found in section 508.149(b) of the Government Code3
should be included in the standard punishment charge. According to appellant, the
standard charge warns jurors that their determination of the appropriate period of
punishment might be undermined by good conduct time and parole considerations and
that the jury should also be provided with information that the sentence might be carried
out in full due to restrictions on parole found in section 508.149(b).
Appellate review of purported error in a jury charge involves a two-step process.
Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994). First, we determine whether error exists. Kirsch
v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Middleton, 125 S.W.3d at 453.
Second, if error is found, the appellate court should analyze that error for harm. Kirsch,
357 S.W.3d at 649; Middleton, 125 S.W.3d at 455. Error preservation does not become
an issue until harm is assessed because the degree of harm necessary for reversal
depends upon whether the error was preserved. Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005).
Section 4 of article 37.07 of the Code of Criminal Procedure provides the
instructions that trial courts are required to give juries to inform them about the law of
parole. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4. The jury charge in this case
correctly set forth the parole instruction, including the instruction’s references to good
3 Section 508.149(b) states: “An inmate may not be released to mandatory supervision if a parole
panel determines that: (1) the inmate’s accrued good conduct time is not an accurate reflection of the
inmate’s potential for rehabilitation; and (2) the inmate’s release would endanger the public.” T EX. GOV’T
CODE ANN. § 508.149(b) (West Supp. 2018).
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conduct time, as set forth in article 37.07, section 4(c). Appellant acknowledges that he
did not raise any objection to the court’s parole-law instruction, and he points to no
evidence that the jury was actually confused by the parole instruction. See Luquis v.
State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002) (assuming jury followed parole
instruction as given and declining to find federal constitutional error absent conclusion
reasonable jury actually confused by charge).
The Court of Criminal Appeals has previously decided that the parole-law
instruction, reenacted after Texas voters approved a constitutional amendment
authorizing the legislature to require courts to inform juries about the effect of eligibility
for parole or good time credit on the defendant’s period of incarceration, does not violate
the federal constitution’s due process clause or the Texas constitution’s due course of
law provisions. See Muhammad v. State, 830 S.W.2d 953, 956 (Tex. Crim. App. 1992)
(en banc); Luquis, 72 S.W.3d at 364-68. In clarifying the legislature’s intent regarding the
provisions of article 37.07, the Court of Criminal Appeals explained in Luquis:
The Texas Legislature enacted legislation that requires the trial judge to
instruct the jury in the precise wording that the statute recites. Article 37.07,
section 4(a) sets out, verbatim, the words that the trial judge is to use. There
are even quotation marks around the wording of the instruction. That is at
least some indication that the Legislature did not want any creative
deviations from its chosen language. The Legislature prefaced its
instruction language with directions that “the court shall charge the jury in
writing as follows: . . . .” The use of the word “shall” generally indicates a
mandatory duty. There is no reason to think that the Legislature enacted
merely a suggested parole law jury instruction, one that trial judges should
cut and paste as they see fit.
Id. at 363.
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Although appellant urges us to revisit the constitutionality of the current standard
parole charge, we decline to do so. Under principles of stare decisis, this Court is bound
to follow the precedent established by the Court of Criminal Appeals. Adams v. State,
502 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
Having determined that the trial court did not err by including the parole-law
instruction mandated by Code of Criminal Procedure article 37.07, section 4(c), we
overrule appellant’s first issue.4
Issue 2: Jury argument on parole law and good conduct time
In his second issue, appellant complains that the prosecutor made improper
reference to the application of parole law in his closing arguments which invited the jury
to consider specific calculations of parole and good conduct time in jury deliberations.
Appellant acknowledges that he did not object to the jury argument.
The Texas Court of Criminal Appeals has made clear that a defendant’s failure to
object to a jury argument or to pursue his objection to an adverse ruling forfeits the right
to complain about the argument on appeal. See Threadgill v. State, 146 S.W.3d 654, 667
(Tex. Crim. App. 2004) (en banc); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996) (en banc); see also TEX. R. APP. P. 33.1. Accordingly, we conclude appellant has
waived this complaint.
4 Because we have determined that the trial court did not err by including the parole-law instruction
in appellant’s punishment charge, we need not address the second prong of a charge-error analysis—
whether sufficient harm resulted from the error to require reversal. See, e.g., Middleton, 125 S.W.3d at 453
(setting forth two-pronged charge error analysis); Jackson v. State, No. 02-14-00346-CR, 2015 Tex. App.
LEXIS 9071, at *5 (Tex. App.—Fort Worth Aug. 27, 2015, pet. ref’d) (mem. op., not designated for
publication).
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However, even if appellant had preserved this issue, his claim still fails. As
discussed above with appellant’s first issue, article 37.07, section 4, requires that the jury
be given certain instructions in the charge that include information about parole eligibility.
These instructions have been interpreted to allow the jury to consider the defendant’s
eligibility for parole but not whether or when the defendant will actually be released on
parole. Branch v. State, 335 S.W.3d 893, 907 (Tex. App.—Austin 2011, pet. ref’d)
(prosecutor’s statements were improper: prosecutor did not state that defendant would
be eligible for parole in a certain number of years, but rather stated that defendant would
be out of prison in that amount of time).
Here, the prosecutor’s argument focused on appellant’s parole eligibility and was
in accordance with the court’s instructions. Hawkins v. State, 135 S.W.3d 72, 84 (Tex.
Crim. App. 2004) (not improper for prosecutor to accurately restate law given in the jury
charge or to ask jury to take that law into account when assessing punishment); Taylor v.
State, 233 S.W.3d 356, 359 (Tex. Crim. App. 2007) (not improper for prosecutor to
discuss lengths of hypothetical sentences and to refer to defendant specifically rather
than referring to a hypothetical defendant).
In the case before us, the prosecutor did not convey any information beyond what
was properly contained in the charge when he explained how the parole eligibility rules
set out in the charge worked with a twelve-year sentence. The explanation simply
ensured that the jury understood the language set out in the instructions. Nothing in this
case indicates that the prosecutor’s explanations went beyond an attempt to clarify the
meaning of the jury instructions. Both sides made reference to parole law in closing
arguments and both emphasized that the jury was not to consider how parole law applied
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to appellant in assessing punishment. Consequently, even if appellant had preserved his
complaint regarding the State’s jury argument on punishment, the argument was not
improper.
Conclusion
Having overruled both of appellant’s issues on appeal, we affirm the judgment of
the trial court.
Judy C. Parker
Justice
Do not publish.
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