Stewart v. State

JACK CARTER, Justice,

concurring.

This case is different from Hill9 and Taylor10 in a very significant respect. Both Hill and Taylor involved a faulty instruction regarding the effect of “good conduct time.” In both cases, the jury was instructed that good conduct time would be considered in determining eligibility for parole in situations where good conduct time was not authorized. “Good conduct time” is a phrase that would be difficult to directly apply to a punishment assessment.

*865In this case, a more important mistake was made. The jury was also told that Stewart would be eligible for consideration of parole when he served one-fourth of his sentence or thirty years, when he actually must serve one-half of his sentence or thirty years. While the nebulous concept of good conduct time and its applicability may be unfamiliar to a jury, whether one must serve only one-fourth rather than one-half of the sentence is not ambiguous. The Legislature has mandated that such an instruction be given together with an instruction that the jury should not attempt to apply parole eligibility to the defendant. But what is the effect of such an instruction? This is not a general instruction that a parole law exists, but gives actual numbers that are easily converted into a term of years.

The jury was instructed that Stewart would be eligible for parole when he served twenty-five percent of his sentence when he actually must serve at least fifty percent. It is one thing to generally instruct a jury about parole; instructions about good conduct time may not cause egregious error, but it is much more important that the numbers given in the instruction be correct. I would find that the error deprived Stewart of the valuable right to have the jury properly instructed as to the percentage of the sentence legally required to be served before parole eligibility. In my opinion, egregious harm has been established. But we have the precedent of the Texas Court of Criminal Appeals opinion in Igo.11

In Igo, the Texas Court of Criminal Appeals upheld the court of appeals’ finding that no egregious harm was shown when a jury was similarly misinformed, (one-fourth instead of one-half). The court specifically emphasized that the subject of parole law was not mentioned in closing argument and the punishment evidence was extremely strong. Here, a jury found that Stewart was guilty of sexually assaulting a minor numerous times; that evidence alone is powerful in assessing punishment. In Igo the defendant was assessed the maximum punishment, which did not occur here. That only leaves the fact that the attorneys referred to the instruction in this case, whereas they did comment on it in Igo. I do not believe the comments by counsel in this case are significant enough to distinguish Igo on that basis.

Without the binding precedent of Igo, I would hold that such a flagrantly incorrect statement of the law given to the jury produced egregious harm. Since we are bound by the Igo precedent, I concur in this result.

. Hill v. State, 30 S.W.3d 505 (Tex.App.-Texarkana 2000, no pet.).

. Taylor v. State, 146 S.W.3d 801 (Tex.App.-Texarkana 2004, pet. ref'd).

. Igo v. State, 210 S.W.3d 645 (Tex.Crim. App.2006).