concurring.
I concur with the result affirming the judgments; however, this Court should overrule Jimenez v. State, 992 S.W.2d 633 (Tex.App.—Houston [1st Dist.] 1999) (“Jimenez I ”), aff'd. on other grounds, 32 S.W.3d 233 (Tex.Crim.App.2000)(“Jimewez II ”) and hold article 37.07, section 4(a) of the Code of Criminal Procedure is constitutional.
A review of the pertinent statutes is necessary to understand whether the charge in question is erroneous to the point of constituting a denial of due process. Both parole and mandatory supervision are governed by Subchapter E of the Texas Government Code. Tex. Gov’t Code Ann. §§ 508.141-.156 (Vernon 1998 & Supp.2001).
Parole
Parole means “the discretionary and conditional release of an eligible inmate *226sentenced to the institutional division so that the inmate may serve the remainder of the inmate’s sentence under the supervision of the pardons and paroles division.” Tex. Gov’t Code ANn. § 508.001(6) (Vernon Supp.2001) (emphasis added). A parole panel “may consider for release and release on parole an inmate who: (1) has been sentenced to a term of imprisonment in the institutional division; (2) is confined ...; and (3) is eligible for release on parole.” Tex. Gov’t Code Ann. § 508.141 (Vernon 1998) (emphasis added).
An inmate serving a sentence for an offense described by Code of Criminal Procedure article 42.12, sections 3g(a)(l)(A), (C), (D), (E), (F), (G), or (H) or an offense with an affirmative finding of a deadly weapon under section 3g(a)(2) “is not eligible for release on parole until the inmate’s actual calender time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less ” Tex. Gov’t Code Ann. § 508.145(d) (Vernon Supp.2001) (emphasis added). Under section 508.145(f), except for certain aggravated offenses, “any other inmate is eligible for release on parole when the inmate’s actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” Tex.Gov’t Code Ann. § 508.145(f) (Vernon Supp.2001) (emphasis added).
Mandatory Supervision
Mandatory supervision means “the release of an eligible inmate sentenced to the institutional division so that the inmate may serve the remainder of the inmate’s sentence not on parole but under the supervision of the pardons and paroles division.” Tex. Gov’t Code Ann. § 508.001(5) (Vernon Supp.2001) (emphasis added). Section 508.147(a) provides as follows:
Except as provided by Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.
Tex. Gov’t Code Ann. § 508.147(a) (Vernon 1998) (emphasis added). Under section 508.149(a),
an inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of: (1) an offense for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure; ... [or] (7) a first degree or a second degree felony under Section 22.02, Penal Code.
Tex. Gov’t Code Ann. § 508.149(a) (Vernon Supp.2001) (emphasis added).
Appellant and similarly situated defendants are not eligible for mandatory supervision, but may become eligible for parole, after serving half their actual time in prison. After considering the statutes governing both parole and mandatory supervision, the first paragraph of the charge in question, when read in context with the third paragraph, is not erroneous to the point of amounting to a denial of due process. The third paragraph clearly states appellant will not be eligible for parole until he serves half his time in prison, and it actually tracks the language of section 508.145(d). See Tex.Gov’t Code Ann. § 508.145(d) (the statute provides, “without consideration of good conduct time”; the charge provides, “without consideration of any good conduct time he may earn”).
The simple math is clear: half of 38 is 19. The jury knew appellant would serve 19 years in prison before becoming eligible for parole. Even though appellant will not be eligible for mandatory supervision, he *227will be eligible for parole after 19 years. Also, while appellant is in prison, he may accumulate good conduct time. Good conduct time will not make him eligible for parole before the expiration of 19 years; however, a parole panel, or a member thereof, may look at appellant’s good conduct time and consider it in its or his discretion when deciding whether to award parole when appellant becomes eligible in 19 years.
Because a parole board member may consider good conduct time in awarding parole, the first paragraph of the charge in question is not erroneous to the point of amounting to a denial of due process. The first sentence of the first paragraph of the charge is erroneous if read to mean time off the period of incarceration will be “imposed” through the award of good conduct time because appellant is not eligible for mandatory supervision.1 However, it is quite clear from the preceding phrase and the very next sentence that this “may” be the case, not “will” be the case; prison authorities have discretion in awarding good conduct time, which affects the award of parole.
More importantly, the final paragraph of the charge instructs the jury not to consider the extent to which good conduct time may be awarded. Also, the charge does not mention mandatory supervision, for which appellant is clearly not eligible.
Although the one-charge-fits-all approach is not artfully applied to appellant or similarly situated defendants, the Legislature did make an effort to create a charge with different portions outlining eligibility for different offenses. The result is not only that appellant and similarly situated defendants are not egregiously harmed; they do not suffer a denial of due process.
Before and after our holding in Jimenez I, a number of cases have been decided by other Texas appellate courts, including the Fourteenth Court of Appeals, reaching the opposite conclusion and further clarifying the issue. Donoho v. State, 39 S.W.3d 324 at 331-32 (Tex.App.—Fort Worth, no pet. h.); Espinosa v. State, 29 S.W.3d 257, 26162 (Tex.App.—Houston [14th Dist.] 2000, pet. filed); Cagle v. State, 23 S.W.3d 590, 594 (Tex.App.—Fort Worth 2000, pet. filed); Edwards v. State, 10 S.W.3d 699, 705 (Tex.App.—Houston [14th Dist.] 1999, pet. granted); Luquis v. State, 997 S.W.2d 442, 443-44 (Tex.App.—Beaumont 1999, pet. granted); Hyde v. State, 970 S.W.2d 81, 89-90 (Tex.App.—Austin 1998, pet. ref'd); Martinez v. State, 969 S.W.2d 497, 501-02 (Tex.App.—Austin 1998, no pet.); Garcia v. State, 911 S.W.2d 866, 868-69 (Tex.App.—El Paso 1995, no pet.).
Although the Court of Criminal Appeals declined to address the constitutionality issue in Jimenez II, Presiding Judge McCormick’s concurring opinion illuminated the issue by addressing the due process and due course of law provisions of the United States and Texas Constitutions. Jimenez II, 32 S.W.3d at 241-45. He concluded the portion of the statutory charge in question did not deprive Mr. Jimenez of his liberty without due process of law:
The Legislature had the power to enact the statute. The statute does not violate any explicit provision of either the state or federal constitutions. Appellant received that process which was due him according to the statute; that is, appellant received what state law gave him a right to expect. The statute applies to all other defendants similarly situated to appellant, and there is no evidence of *228legislative vindictiveness with respect to these defendants.
Jimenez II, 32 S.W.3d at 245 (McCormick, J., concurring) (footnotes omitted). I agree with Judge McCormick’s analysis.
I further agree with Judge McCormick that we applied the wrong standard of harm in Jimenez I and, consequently, here. Appellant does not attack the jury charge, but the constitutionality of article 37.07, section 4(a). Thus, I agree with Judge McCormick that the Almanza standard should not apply and appellant’s claim should be considered procedurally defaulted because he did not raise it at trial. Jimenez II, 32 S.W.3d at 247 (McCormick, J., concurring). We are the only appellate court to hold article 37.07, section 4(a) unconstitutional, and I believe we should revisit Jimenez I.2
Trial courts in the First and Fourteenth Courts’ districts, because of the conflicting rulings on this issue, have no authoritative guidance as to whether article 37.07, section 4(a) is constitutional, and the Court of Criminal Appeals has not offered any alternative jury charge to what is statutorily required by article 37.07, section 4(a). Therefore, we should consider the reasoning and clarification of the above-cited cases and Judge McCormick’s Jimenez II concurrence. Moreover, we should overrule Jimenez I and hold article 37.07, section 4(a) is constitutional as applied to appellant and other similarly situated defendants.
I respectfully concur in the result only.
. This sentence is not erroneous at all if read to mean the period of incarceration "imposed” by the jury may be diminished by the award of good conduct time.
. The Fourteenth Court of Appeals has held article 37.07, section 4(a) constitutional, and the Court of Criminal Appeals has not ruled on the issue.