Timothy Lewis v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00082-CR
__________________

TIMOTHY LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 19-33025
__________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Timothy Lewis for aggravated robbery by

using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code Ann.

§ 29.03(a)(2). Lewis pleaded “not guilty” to the crime charged, but a jury found

Lewis guilty as charged. Lewis pleaded “true” to four enhancements, and the jury

assessed punishment at fifty years’ confinement. Lewis appeals his conviction,

raising nine issues. We affirm.

1
 Evidence at Trial

Testimony of Anton 1

Anton testified that on July 22, 2019, he lived in a townhouse with his

girlfriend Donna and her two children, but her children were not present that night.

According to Anton, the number of the unit he lived in was 1205. Anton recalled

that during the day of July 22, he talked with Jordan Spiller two or three times about

some marijuana and edible candies that Anton was selling, and that Jordan was “on

the phone and texting…as he was taking pictures of the marijuana and the edible

candies.” According to Anton, Jordan also knew Donna. Anton also recalled that he

had seen a little gray Mazda circling around near his home three or four times that

day.

Anton testified that he got home at about 9:00 or 10:00 that night, and he

noticed the Mazda outside his home. According to Anton, when he got out of his

truck, he grabbed a Crown Royal bag that contained about $500 or $1000 from sales

he had made that day. Anton testified that as he approached the front door, he heard

noise, some people ran towards him and told him to “give it up[,]” he dropped the

bag, and the people dug in his pocket and took off his jewelry. Anton also testified

that there were four people, they wore black ski masks, they all held guns to him,

1
We use pseudonyms to refer to the alleged victims. See Tex. Const. art. I,
§ 30 (granting crime victims “the right to be treated with fairness and with respect
for the victim’s dignity and privacy throughout the criminal justice process[]”).
2
they opened the door, and then they held him on the living room floor. According to

Anton, the people were digging through his things and looking for his girlfriend.

Anton testified that two people went upstairs and two stayed downstairs, one person

wanted to shoot him, and they wanted to take his truck. Anton recalled that at some

point, one of the people opened the front door and quickly shut it, which led Anton

to believe that the police were outside. Anton testified that three of the people ran

out the back door, but the fourth person was still upstairs. According to Anton, the

fourth person came downstairs asking where his partners were, Anton told him they

left, and when the man opened the front door, the police entered, the man dropped

the guns, and the police took the man’s mask off.

Anton testified that after the police arrived, he saw that his money was gone,

but everything else was “intact[]” except that things had been strewn about, and

Donna’s computer was left on the lawn. Anton further testified that his girlfriend

had been hiding in the bathtub “on the phone with the dispatcher[]” the whole time.

Anton was not able to identify any of the four people because they wore masks.

Anton testified that he did not know Timothy Lewis, but he recognized his face

because he had seen him riding around in the Mazda that day. Photographs of the

inside and outside of Anton’s home that night were admitted into evidence.

3
Testimony of Donna

Donna testified that in July 2019, she and her two children lived with Anton.

She also testified that she knew Jordan through her family, and she had seen him

around, but he had not been to her home and there was no reason he would know

where she was living. Donna testified that she left her children with their

grandmother on July 22, she got home around 7:30 or 8:00, and Anton got home

around “9 something.” According to Donna, she heard Anton’s truck when he drove

up, she heard the truck door close, and before Anton got to the front door, she heard

Anton say “Hey, man, take everything. You got it. Go ahead. You can take

everything[.]” Donna testified that she ran to the bathroom, hid in the tub, and called

911 for help. Donna recalled that she could hear people enter and run through the

house, one of the people made Anton get on the ground. At one point, Donna heard

the front door open, and she heard the police say “get on the ground.” Donna also

heard what sounded like two people run out the back door. Donna testified that once

the police had arrived, she left the bathroom and told them that Anton was her

boyfriend and he was “supposed to be here[.]” Donna also testified that the home

had been ransacked, and it appeared the people had taken her laptop and left it in the

bushes. Donna agreed that the people had not been invited to her home, and there

was no reason for them to be at her home that night except for the robbery. Donna

testified that she did not see any of the people except for the one person the police

4
caught at the front door, but she remembered hearing “about four[]” voices that

night.

Testimony of Sergeant Shannon Meaux

Sergeant Shannon Meaux, a patrol sergeant with the Port Arthur Police

Department, testified that on the evening of July 22, 2019, he was dispatched to a

burglary in progress that “ended up ultimately being an aggravated robbery, home

invasion robbery.” Meaux recalled that as he approached the townhouse, he noticed

a screen off a window at one of the townhomes and someone wearing dark clothing

exit unit 1205, and the person started running away when he saw Meaux. Meaux

testified that he chased after the man, but he did not catch him, and after other

officers caught the man, he was detained and placed in hand restraints. According to

Meaux, he went back to the townhome to check on the residents, and before he could

knock on the door, the door opened, and a man said “Awe, sh*t.” Meaux testified

that he told the man to lie on the ground and comply, and Meaux saw two pistols on

the ground. Meaux agreed that one of the weapons turned out to have been stolen.

According to Meaux, the suspect on the ground was talking with Anton, and Meaux

thought the suspect “had known where the victim was and what he was doing during

the day prior to this.” Meaux agreed the home was in “disarray[.]”

5
 Meaux agreed he was wearing a body camera that night, and he agreed that

the video in State’s Exhibit 42 was a fair and accurate depiction of what happened

that night. The video from Meaux’s body cam was published to the jury.

Testimony of Officer Terry Tran

Officer Terry Tran, a patrol officer with the Port Arthur Police Department,

testified that on the night of July 22, 2019, he heard a call on the radio reporting a

home invasion burglary, and he went to the location to assist other officers. Tran

testified that another officer had told him a suspect was fleeing at high speed in a

gray Mazda. Tran intercepted that vehicle, stopped it, and told the suspect to keep

his hands up. Tran testified that when he looked inside the Mazda, he saw a silver

revolver on the floorboard. According to Tran, the suspect in the Mazda’s last name

was Spiller.

Testimony of Detective George Clark

Detective George Clark testified that on July 22, 2019, he was a patrol officer

on the evening shift with the Port Arthur Police Department, and he responded to a

call at a townhome. Clark recalled that as he approached the home in question, he

was told that someone was running west through the area, and he saw the man run

straight toward him. Clark testified that he and another officer told the man to stop,

the man turned and ran the other way, and Clark pursued him. According to Clark,

he did not catch the man, but he caught up with a car that was speeding out of the

6
complex, and he chased after the car and notified dispatch. Clark testified that

Officer Tran stopped the vehicle and Clark assisted Tran in taking the suspect into

custody. Clark recalled seeing a handgun on the floor of the car. According to Clark,

the driver of the car was identified as Jordan Spiller. Clark agreed he was wearing a

body camera that night, and the video from the body camera was admitted into

evidence and published to the jury.

Testimony of Malaurie Cruz

Malaurie Cruz, a forensic specialist with the Port Arthur Police Department,

testified that she was called to a scene of an aggravated robbery on July 22, 2019, to

take photographs and collect evidence. Cruz testified that State’s Exhibits 17, 19,

43, and 44 were photographs of ski masks found at the scene, and she identified

Exhibits 18 and 23 as black ski masks found at the scene. Cruz also testified that she

found gloves at the scene that the residents said did not belong to them. Cruz agreed

that she also collected ammunition and firearms from the scene. On cross-

examination, Cruz agreed that she dusted for fingerprints at the home, and she did

not find any of Lewis’s prints inside the home.

Testimony of Officer Isaiah Seltzer

Officer Isaiah Seltzer, a patrol officer with the Port Arthur Police Department,

testified that on July 22, 2019, he was called out to a home invasion. As he entered

the townhome complex, he encountered another officer chasing a man running west,

7
and Seltzer also started running after the man. Seltzer testified that when he caught

up with the man, the man did not put up a struggle, and Seltzer took him into custody.

According to Seltzer, the man was saying “Yeah, it’s 1205. It’s 1205[,]” and he said

people were still in the residence and someone was hiding in a vehicle. Seltzer

testified that the man identified himself as Timothy Lewis, and Seltzer identified the

defendant as Lewis. Seltzer agreed he was wearing a body camera that night, he

identified Exhibit 46 as his body cam video, and the video was published to the jury.

On cross-examination, Seltzer agreed he did not see Lewis in Townhouse unit 1205.

After the State rested, the defense did not offer any witnesses or evidence.

Issues

Appellant’s first three issues challenge the sufficiency of the evidence to

support his conviction. In his first issue, Appellant argues that the evidence is not

sufficient because he did not actively participate in any activity at Anton’s home and

he remained outside. In his second and third issues, Appellant argues that the

evidence is legally and factually insufficient that he used or knew that firearms

would be used at Anton’s home. 2 Appellant’s next four issues (four through seven)

argue that the trial court erred by not including a specific instruction in the jury

2
Issue two challenges the legal sufficiency that Lewis used or knew that
firearms would be used at Anton’s home, and issue three challenges the factual
sufficiency thereof. When an appellant challenges the sufficiency of the evidence in
a criminal case, we review the evidence under the standard for legal sufficiency only.
See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
8
charge on whether a deadly weapon was used. Appellant’s last two issues argue that

the trial court committed reversible error in the jury charge during the punishment

phase because it misstated the law. Specifically, Appellant argues that the jury

charge included an instruction on “good conduct time” in violation of article 37.07,

section 4(a) of the Texas Code of Criminal Procedure.

Sufficiency of the Evidence

In three issues, Appellant argues that the evidence was not sufficient to sustain

his conviction. According to Appellant, there was no evidence that he was ever

inside Anton’s home, no evidence that he “actively participated” in the robbery, and

no evidence that he used a firearm or deadly weapon. Appellant also argues that the

evidence is insufficient because, although he rode to Anton’s townhome with Spiller

and another man, Lewis stayed inside the car while Spiller and the other man got out

of the car and entered Anton’s townhome. Appellant acknowledges this last

argument relies on evidence outside the record. We may not consider matters outside

the appellate record. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App.

2004) (“An appellate court may not consider factual assertions that are outside the

record[.]”).

In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

9
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We give deference to the factfinder’s responsibility to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record

contains conflicting inferences, we must presume that the factfinder resolved such

facts in favor of the verdict and defer to that resolution. Brooks v. State, 323 S.W.3d

893, 899 n.13 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). While a jury is permitted to draw reasonable inferences from the

evidence, it is not permitted to draw conclusions based on speculation or factually

unsupported inferences or presumptions. See Hooper, 214 S.W.3d at 15. The jury as

factfinder is the sole judge of the weight of the evidence and credibility of the

witnesses, and it may believe all, some, or none of the testimony presented by the

parties. See Metcalf v. State, 597 S.W.3d 847, 865 (Tex. Crim. App. 2020) (citing

Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Heiselbetz v. State,

906 S.W.2d 500, 504 (Tex. Crim. App. 1995)). The appellate court does not reweigh

the evidence or determine the credibility of the evidence, nor does it substitute its

own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007).

We “‘determine whether the necessary inferences are reasonable based upon

the combined and cumulative force of all the evidence when viewed in the light most

10
favorable to the verdict.’” Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d

at 16-17). “Direct and circumstantial evidence are treated equally: ‘Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.’” Id. (quoting

Hooper, 214 S.W.3d at 13). Each fact need not point directly and independently to

the guilt of the defendant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction. Temple v. State, 390 S.W.3d

341, 359 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13; Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993).

A person commits robbery if, in the course of committing theft, he

intentionally, knowingly, or recklessly causes bodily injury to another or

intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death. See Tex. Penal Code Ann. § 29.02(a). A person commits aggravated

robbery if he commits robbery and causes serious bodily injury, uses or exhibits a

deadly weapon, or causes serious bodily injury or threatens or places the victim in

fear of imminent bodily injury or death if the victim is sixty-five years of age or

older or disabled. Id. § 29.03(a).

The jury charge in this case included an instruction on the law of parties.

Under the law of parties, “[a] person is criminally responsible as a party to an offense

if the offense is committed by his own conduct, by the conduct of another for which

11
he is criminally responsible, or by both.” Id. § 7.01(a). Culpability under the law of

parties does not distinguish between principals or accomplices. See id. § 7.01(c).

“‘Evidence is sufficient to convict under the law of parties where the defendant is

physically present at the commission of the offense and encourages its commission

by words or other agreement.’” Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim.

App. 2005) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)).

Party participation may be shown by events occurring before, during, and after the

commission of the offense, and may be demonstrated by actions showing an

understanding and common design to do the prohibited act. Id. at 739-40.

In this case, Anton testified that four people approached him with guns

pointed at him in front of his home on the night of July 22, 2019. Anton testified that

they used his key to open the front door, and they laid him on the ground while they

went throughout the house. According to Anton, all four persons pointed their guns

at him, and at least one of them wanted to shoot him. Donna testified that she hid in

the bathtub while the intruders were in the house, and she called 911 to report the

incident. Anton testified that one of the people opened the front door and shut it

quickly, after which the police entered the house and the other intruders left through

the back door. Donna also testified that two people left the house out the back door.

Anton reported that several hundred dollars were stolen. Police chased several men

they found running from Anton’s home. One of the men police encountered told the

12
police he was Timothy Lewis. A handgun was found in a gray Mazda at the scene.

Anton testified that he had seen a gray Mazda earlier that day circling in the area,

and he recognized the defendant as the person he had seen in the Mazda. The police

found three ski masks and firearms at the scene. Videos from the body cameras of

Officers Meaux, Clark, and Seltzer were published to the jury.

On this record, we conclude the evidence of Appellant’s guilt was legally

sufficient. The jury could have made reasonable inferences from the evidence and

concluded that the evidence showed beyond a reasonable doubt that Lewis used a

firearm and, while committing theft, put Anton or Donna in fear of imminent injury

or death. The jury could have also inferred guilt from evidence that Appellant fled

from the residence and from police that night, along with Anton’s testimony that he

had seen a gray Mazda earlier that day circling in the area, and that he recognized

the defendant as the person he had seen in the Mazda. See Devoe v. State, 354 S.W.3d

457, 470 (Tex. Crim. App. 2011); Alba v. State, 905 S.W.2d 581, 586 (Tex. Crim.

App. 1995) (citing Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989));

Hill v. State, 161 S.W.3d 771, 776 (Tex. App.—Beaumont 2005, no pet.). After

reviewing all the evidence and viewing the evidence in the light most favorable to

the verdict, we conclude that a rational factfinder could have found the essential

elements beyond a reasonable doubt necessary to conclude that Appellant was

criminally responsible either as a principal or under the law of parties for the offense

13
of aggravated robbery as charged in the indictment. See Jackson, 443 U.S. at 319;

Hooper, 214 S.W.3d at 13; Salinas, 163 S.W.3d at 739-40. We reject Appellant’s

sufficiency challenge, and we overrule his first three issues.

Deadly-Weapon Finding

In four issues (four through seven), Appellant argues that the trial court

committed reversible error by not requesting a separate jury finding on the deadly-

weapon issue, and that such alleged error violated his due process rights to a fair trial

under the Sixth and Fourteenth Amendment of the U.S. Constitution, violated the

presumption of innocence under the Eighth and Fourteenth Amendments, and

violated section 2.05 of the Texas Penal Code. According to Appellant, the trial

court’s entry of a deadly-weapon finding where the jury charge did not include a

special instruction requiring a jury determination on whether a deadly weapon was

used means that the trial court improperly relied on “an implied or imputed jury

finding[.]” Appellant also argues in the absence of a separate question on deadly

weapon, the issue is “handled as a presumption[.]” Under section 2.05 of the Penal

Code, where the evidence raises a presumption, the trial court must instruct the jury

on the presumption and the facts giving rise to the presumption must be proven

beyond a reasonable doubt and that, even if such facts are proved beyond a

reasonable doubt, the jury is not bound to find the element of the offense sought to

be presumed. See Tex. Penal Code Ann. § 2.05.

14
 The defense did not object at trial that the jury charge did not request a

separate finding on whether a deadly weapon was used. Therefore, Appellant failed

to preserve this alleged error for review. See Tex. R. App. P. 33.1. According to

Appellant, the failure to give instructions pursuant to section 2.05 constitutes

fundamental error, even where no objection at trial preserved error. We find this

argument unmeritorious because we find no error.

According to Appellant, the trial court’s entry of a deadly-weapon finding

“which was not expressly directed to, or decided by, the jury[]” created “a mandatory

presumption by operation of law[,]” citing to Yates v. Evatt, 500 U.S. 391 (1991).

Presumptions and inferences are evidentiary devices that permit the factfinder to

determine the existence of an element of the crime from one or more evidentiary or

basic facts. Willis v. State, 790 S.W.2d 307, 309 (Tex. Crim. App. 1990) (citing

Ulster Cty. Court v. Allen, 442 U.S. 140, 156 (1979)). Presumptions may be

mandatory or permissive. Id. A jury charge creates a mandatory presumption if it

requires a jury to find an elemental fact based on proof of a predicate fact or if it

requires the defendant to disprove the elemental fact once the predicate fact has been

established. See id. A permissive presumption allows, but does not require, a jury to

infer the element from the predicate facts, and permissive presumptions are generally

constitutional. See Webber v. State, 29 S.W.3d 226, 231 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d) (citing Willis, 790 S.W.3d at 310). Mandatory presumptions

15
are unconstitutional because they “relieve the State of the burden of proving every

element of the offense beyond a reasonable doubt.” Garrett v. State, 220 S.W.3d

926, 930 (Tex. Crim. App. 2007).

In Yates, the trial court instructed the jury on two mandatory presumptions:

that malice is implied or presumed (1) from the willful, deliberate, and intentional

doing of an unlawful act and (2) from the use of a deadly weapon. 500 U.S. at 401.

The instructions further provided that the presumptions were not conclusive but were

rebuttable by the rest of the evidence. Id. The Supreme Court explained that although

the instructions provided that the presumptions were rebuttable, “the mandate to

apply them remained, as did their tendency to shift the burden of proof on malice

from the prosecution to petitioner.” Id. at 401-02. The Court concluded that,

considering all the evidence, the record did not provide clear evidence of the

defendant’s intent to kill and that “[t]he burden-shifting jury instructions [that were]

erroneous in this case may not be excused as harmless error.” Id. at 411.

In this case, the jury charge includes no “burden-shifting jury instructions[.]”

See id. Appellant fails to identify in his Appellate Brief any instruction that required

the jury “to find an elemental fact upon proof of a particular predicate fact or facts[]”

that “require[d] the accused to disprove the elemental fact once the predicate fact

ha[d] been established[,]” or that “eliminate[d] the State’s constitutionally required

burden of proving guilt beyond a reasonable doubt.” See Willis, 790 S.W.2d at 309.

16
Therefore, Appellant failed to establish that the trial court’s entry of a deadly-

weapon finding “created a mandatory presumption by operation of law.”

Appellant further argues that the failure to give an instruction pursuant to

section 2.05 of the Penal Code constitutes fundamental error, citing to Wilson v.

State, 658 S.W.2d 615, 617 (Tex. Crim. App. 1983) and Goswick v. State, 656

S.W.2d 68 (Tex. Crim. App. 1983). Both Wilson and Goswick concerned an

instruction that “it shall be presumed that the person was intoxicated[]” where a

chemical analysis reflected a blood alcohol level greater than 0.10. Wilson, 658

S.W.2d at 616; Goswick, 656 S.W.2d at 69. Because in Wilson and Goswick

intoxication was an element of the crime charged—driving while intoxicated—the

presumption pertained to an essential element on which the State had the burden of

proof, and the Court of Criminal Appeals concluded that the failure to give an

instruction under section 2.05 was fundamental error and required reversal, even

though the defendant had not objected to the jury charge. Wilson, 658 S.W.2d at

617-18; Goswick, 656 S.W.2d at 69-70.

Section 2.05 of the Penal Code requires a special instruction “when this code

or another penal law establishes a presumption with respect to any fact[.]” See Tex.

Penal Code Ann. § 2.05. In this case, however, the jury charge included no

instruction on any presumption (other than the presumption of innocence). The Court

of Criminal Appeals has explained that there are three ways in which a trial court

17
may make an affirmative finding of a deadly weapon when the jury is the trier of

fact: (1) when the indictment itself alleges a deadly weapon; (2) when the instrument

used is per se a deadly weapon, such as a firearm; or (3) when the jury makes an

affirmative finding through a deadly weapon special issue included in the jury

charge. Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003); see also

Crumpton v. State, 301 S.W.3d 663, 665 (Tex. Crim. App. 2009); Polk v. State, 693

S.W.2d 391, 394 (Tex. Crim. App. 1985). A deadly weapon is 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). The Penal Code also specifically defines a

firearm as a deadly weapon. See id. § 1.07(a)(17)(A); see also Ex parte Huskins, 176

S.W.3d 818, 820 (Tex. Crim. App. 2005) (“A firearm is a deadly weapon per se.”).

The indictment in this case alleged that Lewis “while in the course of

committing theft of property owned by [Anton]…and with intent to obtain and

maintain control of said property, intentionally and knowingly place[d] [Anton] in

fear of imminent bodily injury and death, by using and exhibiting a deadly weapon,

to wit: a firearm[.]” The jury charge included a definition of “deadly weapon” that

tracked the language of section 1.07(a)(17) of the Penal Code, including defining a

firearm as a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(A). The jury

charge also stated, in relevant part (with emphasis added):

Now, if you believe from the evidence beyond a reasonable doubt that
in Jefferson County, Texas, on or about July 22, 2019, the defendant
18
 Timothy Keith Lewis, individually or as a party with one or more others
as the instruction of “Parties to an Offense” is defined within these
Instructions, did then and there while in the course of committing theft
of property owned by [Anton], hereafter styled the Complainant, and
with intent to obtain or maintain control of said property, intentionally
or knowingly place [Anton] in fear of imminent bodily injury or death,
by using or exhibiting a deadly weapon, to-wit: a firearm, you shall
find the defendant GUILTY of the offense of Aggravated Robbery.

We cannot agree with Appellant that the application portion of the jury charge

did not include an instruction on deadly weapon. The instruction specifically

required that, in order to find the defendant guilty, the jury must find that he used or

exhibited a deadly weapon (among other elements of the crime). The jury found

Lewis guilty “as charged in the indictment.” Therefore, we conclude that the trial

court’s entry of an affirmative finding that Lewis used a deadly weapon, namely a

firearm, was proper. See Lafleur, 106 S.W.3d at 95.

Appellant also argues that when a conviction can only be sustained under the

law of parties, the jury’s verdict does not constitute an affirmative finding on deadly

weapon in the absence of a specific instruction to the jury on deadly weapon.3 For

this argument, Appellant cites Frazier v. State, 115 S.W.3d 743 (Tex. App.—

Beaumont 2003, no pet.). In Frazier, we stated that “the verdict did not constitute an

affirmative finding that Frazier personally used or exhibited a deadly weapon

3
Appellant raised this argument as a challenge to the sufficiency of the
evidence. We address it here because the argument challenges the lack of an
instruction requiring a specific finding on deadly weapon.
19
because her conviction can only be sustained under law of the parties.” Id. at 750.

The weapon allegedly used in Frazier was a glass beer mug, and the record included

no evidence that Frazier hit the victim with the mug. Id. at 745, 747. The glass beer

mug was not a deadly weapon per se. Id. at 749-50. However, in the instant case, the

indictment alleged the use of “a deadly weapon, to wit: a firearm[,]” and the jury

charge defined a firearm as a deadly weapon, consistent with the Penal Code. See

Tex. Penal Code Ann. § 1.07(a)(17)(A).

We find Frazier distinguishable because in this case, the indictment did not

charge Lewis solely under the law of parties, and the evidence does not reflect that

Lewis’s conviction could only be sustained under the law of parties. Although the

jury charge included an instruction on the law of parties, there is no indication that

the jury found Lewis guilty only as a party and not as a principal. Anton testified

that four people with guns confronted him outside his home and all four were inside

his home on the night of the robbery. There is no evidence in the record to support

Appellant’s assertion on appeal that he stayed in the car while others broke into

Anton’s home.

The record before us reflects that, as in Lafleur, the trial court could have

made a deadly-weapon finding (1) because the indictment alleged the use of a deadly

weapon and (2) the instrument used—a firearm—was per se a deadly weapon. See

20
Lafleur, 106 S.W.3d at 95. We find no error, and we overrule issues four through

seven.

Punishment Phase Jury Charge Error

In two issues, Appellant argues that the trial court erroneously included an

instruction that included references to “good conduct time” or “good time” contrary

to the requirements of section 4(a) of article 37.07 of the Texas Code of Criminal

Procedure.

In 2019, the Texas Legislature amended Article 37.07, Section 4, subsections

(a) through (c), of the Texas Code of Criminal Procedure. Act of May 15, 2019, 86th

Leg., R.S., ch. 260, § 3, 2019 Tex. Sess. Law Serv. 446, 446-48 (codified at Tex.

Code Crim. Proc. art. 37.07, § 4(a)-(c) (Supp)). Those amendments apply to any

defendant sentenced on or after September 1, 2019. See Act of May 15, 2019, 86th

Leg., R.S., ch. 260, § 3, 2019 Tex. Sess. Law Serv. 446, 448. See Holiness v. State,

No. 06-21-00038-CR, 2021 Tex. App. LEXIS 8050, at *15 (Tex. App.—Texarkana,

Oct. 1, 2021, pet. ref’d) (mem. op., not designated for publication) (discussing the

legislative history of the recent amendments). Lewis argues that the trial court erred

by using an outdated version of the good conduct time and parole instructions found

in Section 4(a) of Article 37.07.

The current version of Section 4(a) of Article 37.07 applies to the penalty

phase of the trial of a felony case if the judgment contains an affirmative finding

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under Article 42A.054(c) or (d). See Tex. Code Crim. Proc. Ann. art. 37.07, § (4)(b),

42A.054(c), (d) (providing that a court may not award community supervision where

the judgment includes a deadly-weapon finding). Section 4(a) states that the trial

court shall instruct the jury as follows:

The length of time for which a defendant is imprisoned may be reduced
by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a
term of imprisonment, the defendant will not become eligible for parole
until the actual time served equals one-half of the sentence imposed or
30 years, whichever is less. If the defendant is sentenced to a term of
less than four years, the defendant must serve at least two years before
the defendant is eligible for parole. Eligibility for parole does not
guarantee that parole will be granted.

It cannot accurately be predicted how the parole law might be applied
to this defendant if sentenced to a term of imprisonment, because the
application of that law will depend on decisions made by parole
authorities.

You may consider the existence of the parole law. You are not to
consider the manner in which the parole law may be applied to this
particular defendant.”

Id. art. 37.07, § 4(a). There is no reference to good conduct time in the current

version of Section 4(a). See id. The Texas Court of Criminal Appeals has

discouraged any deviations from the verbatim language dictated in Section 4(a). See

Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). The trial court included

references to good conduct time in the following portion of the jury charge:

Under the law applicable in this case, the defendant, if sentenced to a
term of imprisonment, may earn time off the period of incarceration
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 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 assignment, 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, (s)he will not become eligible for parole until
the actual time served equals one-half of the sentence imposed or 30
years, whichever is less, without consideration of any good conduct
time (s)he may earn. 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 (s)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.

Lewis did not object to the charge. The State acknowledges that the jury charge “did

not precisely track the language of Article 37.07[]” but the State argues that

Appellant did not suffer egregious harm. Appellant argues that the deviation from

the required statutory language constitutes reversible error.

When, as here, a defendant fails to object to the court’s charge or states he has

no objection to it, we will not reverse for jury charge error unless the record shows

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“egregious harm” to the defendant. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.

Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

Pursuant to Almanza’s egregious harm standard, the record must show a defendant

suffered actual, rather than merely theoretical, harm from the charge error. Almanza,

686 S.W.2d at 174. “Errors that result in egregious harm are those that affect ‘the

very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect

a defensive theory.’” Ngo, 175 S.W.3d at 750 (quoting Hutch v. State, 922 S.W.2d

166, 171 (Tex. Crim. App. 1996)).

In analyzing whether egregious harm resulted, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence, including

the contested issues and weight of probative evidence, the argument of counsel and

any other relevant information revealed by the record of the trial as a whole.”

Almanza, 686 S.W.2d at 171; Shavers v. State, 985 S.W.2d 284, 291 (Tex. App.—

Beaumont 1999, pet. ref’d). Factors courts consider when assessing egregious harm

in the context of an erroneous parole instruction include: (1) the presumption the

jury followed any mitigating instruction; (2) whether a jury note existed regarding

parole or good-conduct time; (3) the State’s emphasis of the possibility of parole in

argument; and (4) the severity of the defendant’s sentence. See Hooper v. State, 255

S.W.3d 262, 271-72 (Tex. App.—Waco 2008, pet. ref’d); see also Igo v. State, 210

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S.W.3d 645, 647-48 (Tex. Crim. App. 2006) (discussing various factors mitigating

against finding of egregious harm when appellant received maximum sentence).

Several factors mitigate against a finding of egregious harm in this case. See

Igo, 210 S.W.3d at 647. The jury assessed punishment at fifty years’

imprisonment—about half the maximum sentence. See Tex. Penal Code Ann.

§ 12.32(a) (first-degree felony is punishable by a term of not more than 99 years or

less than 5 years). Punishment in the middle of the allowable range does not support

a conclusion that the jury attempted to apply the parole law to Lewis, or to predict

how it might be applied to him. See Stewart v. State, 293 S.W.3d 853, 860 (Tex.

App.—Texarkana 2009, pet. ref’d). The charge contained a curative instruction

admonishing the jury that it could not consider the extent to which good conduct

time could be awarded or forfeited by this particular defendant. See id. Absent

indications to the contrary, we presume the jury followed the trial court’s curative

instruction. See Shavers, 985 S.W.2d at 292. Here, there are no indications the jury

did not follow this instruction. Further, the record does not indicate the jury sent any

notes or had any communications regarding the applicability of good conduct time

or parole. See id. The State did not mention good conduct or the possibility of parole

in its argument. See id.; see also Igo, 210 S.W.3d at 647. Finally, during the

punishment phase, Lewis pleaded “true” to four prior felony conviction

enhancements: possession of a controlled substance, second-degree robbery,

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possession with intent to deliver a controlled substance, and second-degree sexual

assault of a child. The defense offered no witnesses or evidence during the

punishment phase.

Lewis has not demonstrated a reasonable likelihood that the jury was misled

or that it assessed a higher sentence based upon any alleged misconstruction of the

parole law in the 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 nor 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 Lewis. The jury did not assess the

maximum sentence for the offense. See Luquis, 72 S.W.3d at 366-68; Hooper, 255

S.W.3d at 272. We conclude that any error in the charge on punishment did not result

in egregious harm. We overrule Lewis’s eighth and ninth issues.

Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice
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Submitted on November 12, 2021
Opinion Delivered December 29, 2021
Do Not Publish

Before Kreger, Horton and Johnson, JJ.

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