concurring.
I agree the charge the trial court gave the jury did not violate Rogers’ right to due process of law. I cannot agree, however, that it was not error for the trial court to give a charge that deviated from the statutory charge or that the deviations between the actual jury charge and the statutory charge are immaterial. Therefore, I concur only in the judgment of this Court.
The wisdom of the statutory charge has been questioned in cases, such as this, in which good conduct time the defendant earns will not accelerate his or her eligibility for release on parole or affect his or her eligibility for release to mandatory supervision. See, e.g., Luquis v. State, 72 S.W.3d 355, 362 (Tex.Crim.App.2002) (“To those who are familiar with the Texas mandatory supervision law and its potential to lesson [sic] the actual amount of time an inmate spends in prison, this language is somewhat misleading.”); Gilmore v. State, 68 S.W.3d 741, 743-44 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (Frost, J., concurring); Jimenez v. State, 992 S.W.2d 633, 637 (Tex.App.-Houston [1st Dist.] 1999), aff'd on other grounds, 32 S.W.3d 233 (Tex.Crim.App.2000), overruled, Bui v. State, 68 S.W.3d 830 (Tex.App.-Houston [1st Dist.] 2002, no pet. h.). There can be no doubt, however, that the Legislature intended the charge be given in such cases. As the Texas Court of Criminal Appeals commented recently:
The Texas Legislature enacted legislation that requires the trial judge to instruct the jury in the precise wording *784that 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.
Luquis, 72 S.W.3d at 363.
In the first appeal by this same defendant, we reversed the judgment on punishment because the trial court failed to give the statutory charge and then gave an incomplete response when the jury asked for additional information. See Rogers v. State, 38 S.W.3d 725, 729-30 (Tex.App.Texarkana 2001, pet. ref'd). The trial court in the present case again deviated from the statutory charge. This was error, even though Rogers never objected to the error at trial. As the Texas Court of Criminal Appeals commented in Luquis, “Trial judges may occasionally doubt the wisdom of a particular law, but they are not free to ignore explicit legislative directions unless those directives are clearly unconstitutional.” Luquis, 72 S.W.3d at 363.
The question then is whether the jury charge is unconstitutional. The majority correctly notes that the constitutionality of the statutory charge has been upheld by numerous courts, including most recently the Texas Court of Criminal Appeals. See id. at 361. However, we are not faced in the present case with the charge contained in the statute; rather, we are faced with the charge as modified by the trial court.
The majority concludes the differences between the statutory charge and the charge as given are immaterial and, therefore, the charge as given is not unconstitutional. However, the differences between the statutory charge and the charge as given are significant and potentially misleading.
In the first paragraph of the charge, the jury is instructed the defendant may earn time off “the sentence imposed,” rather than “the period of incarceration imposed” as provided in the first paragraph of the statutory charge. See Tex.Code Crim. ProC. Ann. art. 37.07, § 4(a) (Vernon Supp. 2002). In the third paragraph, the jury is instructed that Rogers will not become eligible for parole until the actual time served equals one half of “the sentence imposed” or thirty years, whichever is less. However, the third paragraph omits the portion of the statutory charge informing the jury that Rogers will serve this time regardless of any good conduct time he might earn. See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a).
The instruction in the first paragraph tells the jury Rogers may earn time off “the sentence imposed.” The instruction in the third paragraph tells the jury Rogers will not become eligible for parole until the actual time he serves equals the lesser of one half “the sentence imposed” or thirty years. Reading these paragraphs in conjunction, the jury could be misled into believing any good conduct time Rogers earns will reduce “the sentence imposed,” making him eligible for parole sooner. By omitting the instruction in paragraph three that good conduct time will not operate to accelerate Rogers’ eligibility for parole, the trial court failed to provide the instruction that could have corrected any misun*785derstanding caused by its previous instructions.
The majority dismisses the differences between the phrases “sentence imposed” and “period of incarceration imposed,” concluding they are substantially the same and in no way related to the actual time served. It is not the differences between these phrases that is significant; rather, it is the fact the jury is told the “sentence imposed” may be reduced by the amount of good conduct time earned, but is not told Rogers must first serve one half his sentence or thirty years before good conduct time will affect his eligibility for parole. The fact that the trial court changed the phrase “period of incarceration imposed” to “sentence imposed” in the first paragraph, making it consistent with the phrase in the third paragraph, heightens the problem.
A reasonable jury could read this charge and conclude Rogers may become eligible for parole when he has served one half of the sentence the jury imposed less any good conduct time Rogers earned. This is not an accurate statement of the law governing Rogers’ eligibility for parole. Therefore, the charge is potentially misleading.
I do not believe, however, that the charge, when read as a whole, violated Rogers’ right to due process of law. In addressing a similar challenge to the charge contained in Article 37.07, § 4(a), the Texas Court of Criminal Appeals held the appellant had the burden of showing a reasonable likelihood that the jury was misled by the charge or that it assessed a higher sentence based on any misconstruction of the charge. Luquis, 72 S.W.3d at 367-68. This Rogers cannot do.
In Luquis, the court noted there was “no evidence or even a plausible argument that this jury connected ‘good conduct time’ with release on mandatory supervision, a legal concept about which the jury was told nothing.” Id. at 362-63. Despite the differences between the charge given in the present case and the statutory charge given in Luquis, the same conclusion applies in the present case because here, as in Luquis, the jury was not informed about the existence of mandatory supervision.
As mentioned previously, the charge as given is misleading with respect to the possible impact of good conduct time on Rogers’ eligibility for parole. Still, the jury was informed that Rogers “may” earn time off “the sentence imposed” through good conduct time, not that he necessarily would earn such time off. In addition, the jury was instructed not to consider the extent to which good conduct time may be awarded to or forfeited by Rogers and not to consider the manner in which the parole law might be applied to Rogers. Assuming the jury followed the instruction as a whole, it would not have based the punishment it assessed on the possibility that good conduct time might make Rogers eligible for parole sooner, as the language of the charge would mislead it to believe.
Rogers contends his sixty-year sentence is indicative of the jury’s intent to make him eligible for parole as late as possible in an effort to mitigate the impact good conduct time would have on the length of his incarceration. However, there is no indication the sentence reflects a misunderstanding of the impact good conduct time will have on his sentence. In fact, Rogers’ sentence arguably reflects the contrary proposition.
The jury was told Rogers would serve the lesser of one half of “the sentence imposed” or thirty years before he would be eligible for parole. One half of a sixty-year sentence is thirty years, meaning that, under the instruction the jury was *786given, if Rogers earned any good conduct time, he would be eligible for parole before he served thirty years. If the jury were concerned that good conduct time would make Rogers eligible for parole earlier than thirty years, then it would have assessed a punishment that, even if it were reduced by good conduct time, would not have made Rogers eligible for parole before thirty years. For example, if the jury assessed a ninety-nine-year sentence, then Rogers would have to earn over thirty-nine years of good conduct time to have reduced “the sentence imposed” to a level half of which would be less than thirty years.
Arguably, the sentence reflects that the jury assessed a punishment calculated to make Rogers eligible for parole on the latest date possible without consideration of the amount of good conduct time he could earn. If that is the case, then the sentence would be improper insofar as it was based, not on the punishment Rogers deserved for his crime, but on the jury’s desire to influence when Rogers would be eligible for parole.
For example, if the jury believed Rogers deserved a thirty-year sentence, but assessed a sixty-year sentence to ensure he served thirty years, then the sentence would be improper because Rogers could end up serving more time in jail than he deserved for his crime. In short, the sentence would reflect the jury’s assumption that Rogers would receive parole once he was eligible, a consideration that, under either Article 37.07, § 4(a) or the instruction it was given, the jury was not entitled to make.
Rogers never makes this contention on appeal. Further, there is no indication in the record the jury considered anything other than the sentence Rogers deserved for his crime. To conclude otherwise would be to say the jury could not assess a punishment that would also make a defendant eligible for parole on the latest date possible under the law. I also agree with the majority that, if the jury did improperly consider when Rogers would be eligible for parole, Rogers encouraged the jury to make this error in his closing argument and should not be heard to complain on appeal.
For these reasons, I concur in the judgment of this Court.