Case Information

114745

$& a m p; Darryl Dewayne Williams \ & a m p; TDLJ-CID # 01910015 \ & a m p; Clements Unit \ & a m p; 9601 Spur 591 \ & a m p; Amarillo, Texas 79107$

Table of Contense

Table of Contense ..... I Index of Authorities ..... II Statement of the Ease ..... 1 Procedural Summary ..... 1 Statement of Pacts, and Growd for Review ..... 2 Argument ..... 3 Harm Analysis ..... 3 Prayer ..... 10 Certificate of Service ..... 10 In mate Declaration ..... 10,11

References to the Clerki Record are designated by the number of record volume, followed by "CR", followed by the page number(s). Reference to the Reporters Record are designated by the number of record volume, followed by "RR", followed by page number(s), as are designated by "TR" for Trial Record, followed by the pertinent page number(s).

*3 Index of Authorities

Cases

Almanza v State 686 S.W. 2d 157 (Tex. Crim. App. (1985)) Huizar v State 12 S.W. 3d 479 (Tex. Crim. App. 2000) Hutch v State 922 S.W. 2d 166 (Tex. Crim. App. 1996) Luguis v State 72 S.W. 3d 355 (Tex. Crim. App. 2002) Haaper v State 255 S.W. 3d 262 (Tex. App. —Lhco 2009)

Statutes

Tex. Pen. Code § 12.42 Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon) Tex. Code Crim. Proc. Ann. art 37.07 (Vernon Tex. Code. Crim. Proc. Ann. art 37.07 § 4 (c) (Vernon) Tex. Code. Crim. Proc. Ann. art 42.032 (Vernon) Tex. Gov't Code Ann. §311.026 (Vernon) Tex. Gov't Code Ann. § 508.141 (Vernon) Tex. Gov't Code Ann. § 508.145 (Vernon) Tex. Health and Safety Code Ann. § 481.112, 481.134

Rules

Tex. R. App. P. 44.2 (b)

Statement of the Case

Perisioner was indicted for delivery of cocaine in a school zone, enhanced and habituelized to punishment of twenty-five years to life in prison. Texas Health and Scfery Cod. Ann. $ 481.112, 481.134; Tex. Paul Codz. Ann. $ 12.42. CR 263. Perisioner pled "True" to the entancement allegations in the indictment. 12 RR 7.

Decedical Summary

On January 21, 2014, trial commenced in which perisioner Darryl Decayne Williams, was found guilty of Delivery of cocaine in a school zone. After entancement the punishment was of 25-Twenty-five to life in prison, the perisioner was sentomed sentenced accordingly. Cr. 269. A notice of Appeal was timely filled. CR 276. Briell for appeal No. 10-14-00030-CR were filled in the 10th District Court of Appeals in waco Texer. Court of Appeals affirmed the conviction on July 23, 2015. A motion for an extention of time was timely filed and granted there fore extending the time to file the Perition For Discretionary Review to October 23, 2015 .

*5 Statement of Parts Under cover Policeman Allovio testified that a CI referred Allovio to Peririoner who the CI said was selling "crack', cocaine" 10 RR 55-6. The CI drove to Peririoners residence with Allovio as the rear passenger and another under cover policemen as the passenger in the front seat. 10 RR 60. Peririoner came out to the car, and in a brief transaction, sold the CI $40 w o r t h o f " c r a c k " . 10 R R 65 - 6 . T h e n A l l o v i o a l s o b o u g h t$ 40 worth of "crack" from peririoner. 10 RR 67. The drugs were sent to the DPS lab for analysis and were determined to contain cocaine. 10 RR 68, 72, 111, 113, 134, 135, 139. The residence was within 1000 feet of a middle school. 10 RR 71, 115-17.

Allovio testified about a controlled buy from peririoner on another date. 10 RR 187-190, Also, Officer Starr testified about searching peririoners hotel room and finding "crack" cocaine. 10 RR 202-6.

Consund for Review The Court of Appeals erroned by Poling to apply the egregious harm standard to the erroneous jory instruction which violated the substantial rights of the accused.

Argument

The jury-charge instruction on the effect of good conduct time improperly implied that a person may be released from prison early and without supervision solely due to accruing good-conduct time. This is a folte implication, and the District court errored in not supplementing the instruction to avoid any confusion. The tarch District Court of Appeals, then errored in finding that the jury charge was adequate in accordance with Tex. Code of Crim. Proc. art 37.07 to prevent such confusion and the "egregious harm" caused by such error did not violate the positioners substantial rights per Tex R. App R. 44.2(b).

The standard instructions from the statute on good-conduct time and parole bus, falsely implies that a person may be released from prison early without the benefit of parole supervision if good-conduct time has been accentiated. This folte impression might cause a juror to give a longer sentence because the juror erroneously believes there might be no parole supervision. Thus the standard instructions should be supplemented to avoid the misleading implication.

In the charge for the penalty phase, the trial court included the required instruction in article 37.07, section 46) of the Code of Criminal Procedure, Tex Code Crim. Proc. Ann art. 37.07$ 4(c)(person); CR 258-9; 12 RR 51-3. The instruction informs the jury, inter alia, about the existence of good-conduct time and parole and generally how they

*7 apply to the case. Under the law applicable to the case, the defendant, if sentenced to a term of imprisonment, may earn time of 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 assign masts, and attempts at rehabititation. IP 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 defandant will be imprisioned might be reduced by the reward of parole. Under the law applicable to the case, the defendant will not become eligible for parole until the actual time served plus any good conduct time earned, equals one-fourth of the sentence imposed or 15 years, whichever is less. 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, because the application of those 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. Such matters come within the exclusive jurisdiction of the parolen and parole division of the Texas Department of Criminal Justice

*8 and the Governor of Texas. CR.259-9;12.RR.51-3. Although defence counsel did not object, the instruction about good-conduct time is mishading and incomplete. We where in the instructions is good-conduct time tied to parble. Therefore a juror could infer that a person could get early release without any supervision based simply on accrued good-conduct time, which is not true.

A person sentenced to the Fexos Department of Criminal Justice may be released on parole before serving his sentence if a parale panel follows certain guidelines. Tex. Gov't Code Ann &; SO9.141 (Vernon). The possible release date for parale may be determined in part by the accumulation of good-conduct time. Tex. Gov't Code Ann &; 503.145 (Vernon). There is no provision for early release from a sentence imposed solely by a excumulating good-conduct time, i.e., early release without parale. Good-conduct time is always tied to parale. This is the difference from being incarceration in a casery jail on a misdemeanor. Since there is no parale from misdimmors the sheriff may award good-conduct time and actually release a person early from the sentence imposed. Tex. Code Crim. Poce. Ann. art. 42.032 .

Although coming from the sterture, the instruction used in the present case, creates a misleading implication, i.e., that Williams could be released early without the supervision of parale if he accumulated good-conduct time. The mistaken belief could result in a longer sentence by a juror concerned about unsupervised early release.

*9 The predicament we are left with is that, under article 36.14 of the Code of Criminal Procedure, the judge is required to charge the jury"sering forth the law applicable to the case." Tex. Code Crin. Proc. Am. art. 36.14 (Vernon). Presumably that includes not giving the jury mistending and incomplete instructions. However, art. 37.07, sec. 4 directs the judge to do just that. Therefore there is a conflict between the two articles.

When two statutes (articles) conflict, the Code Construction Act provides guidance on how to proceed. Section 311.026 of the Government Code (Errorly codified as Tex. Rev. Civa Stat. Am. art. 5429b-2, $$ 306$ ) reads: "(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both. (b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevails." Tax Gov't Code Ann. § 311.026 (Vernon). Applied to the present case, because the statutory provision is special, the judge should give the instruction verbatim. But that alone would not solve the problemb. Therefore" (c)" above should be applied, and the two statutes should be read together. The result would be to give the staryory instruction with an additional sentence to clearly the mistading

*10 implication. That would comply with art. 37.0784 (c), by including all the language in the statute, as well as with art. 36.14 by "setting Earth the law applicable to the case." Thus, the instructions about good-conduct time are misleading and should have been supplemented to prevent the error.

In other cases the tenth court has overruled this issue. However, that court has never analyzed the precise issue raised, which is one of statutory construction. The Tenth Court has followed Luyvis v State, 72 S.W. 3d 355, 366 (Tes Crim App 2002). But the issue is not foreclosed by Luyvis. There the issue was whether the trial judge should have given a version of the instruction that was altered from the language in the statute. Peritioner does not contend that the judge should have changed the language, but rather that the judge should have simply added language to ensure the overall effect of the instruction was not mistaking. That is not contrary to the holdings in Luyvis, which requires that the statutory language be given verbatim. Nothing in the statute or in Luyvis forbids adding language to clarify to the jury how good-conduct time may work in the case.

The error is not caved by the charge instruction "not to consider the extent to which good-conduct time may be awarded to or forfeited by this particular defendant," and "not to consider the manner in which the parole law may be applied to this particular defendant." The jurors are told in effect not to try and guess how

*11 much time the defendant will actually serve. But the jurors should still be given accurate instructions about how good-conduct time and parade operate together in the hypothetical. While jurors are presumed to follow the instructions they are given (Laym v State, 72, S.W. 3d 355,366 (Tex. Crim. App. 2002; Hooper v State, 255 S.w. 3d 262, 271 (Tex. App. Who 2008, pet. ref'd)), these instructions do not address whether the defendant might be released without supervision due to good-conduct time. And as a matter of common sense, we know that jurors will think about these matters. "Egregious Harm" Amlysis Because there was no objection, "harm" is analyzed under the "egregious harm" standard. Huizarr v State, 12 S.W. 3 d 479, 484-85 (Tex. Crim. App. 2000); Almanza v State 686 S.W 2 d 157, 171 (Tex. Crim. App 1985, Op's on ref'g). Errors that result in "egregious harm" are those which affect "the very basis of the case," deprive the defandor of a "valuable right," or "vitally affect a defensive theory." Hutch v State, 922 S.w. 2 d 166, 171 (Tex. Crim. App. 1996)(Citing Almanza, 686 S.W. 2d at 172). In deciding whether there is egregious harm, the reviewing court looks to (1) the charge itself, (2) the state of the evidence, including what issues were composed, and weight of the probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. Hutch, 922 S. w. 2 d (2) 171 (citing Billy v. State 867 S.w. 2d 42, 43 (Tex. Crim. App. 1993))(citing

*12 Almanza). D. The earlier yery change? Working also in the charge clarifies the error. DThe evidence produced at total, coneressed issues, and weight of probative evidence? The yery sent a note asking whether a sentence of less than "life," if followed by parole, would be followed by supervision for the rest of the perisioner's life. 12 RR 74. This shows the jury was discussing the issue of the effect of parole, even though instructed not to. Furthermore because jury deliberations are secret, we cannot expect the record to show exactly what the jury discussed, considered, or tried to apply concerning how good-conduct time and parole interact with each other concerning how much time in prison perisioner might serve. 3) Attorney's arguments: The state did not address parole or good-conduct time. 7RR 16-20. But that also includes the state not addressing the question of whether perisioner could be released early without supervision based solely on good-conduct time. Defines counsel did not refer to parole and good-conduct times 12 RR 62-74. 4) Any other relevant information revealed by the record of the trial as a whole: The jury assessed punishment at the maximum, life in prison. So any small beniRs from the clarification about parole and good-conduct time could have been helpful.

Applying Hutch, the jury impliedly told by the judge that perisioner might be released early without the beniRs of supervision (parole) if he accumulated good-conduct time. Some jurors may be concerned

*13

about early release without supervision. This error affected the petitioners valuable right that the jury determine punishment armed with the truerth about the ramifications of a particular sentence. That is "egregious harm" requiring reversal and remunding the case for further proceedings.

Prayer

Wherefore, premisis considered, Mr. Williams, prays that this court grant his petition for Discretionary Review and after carefil review of the issues, reverse and remand for a new trial.

Certificate of Service

I, Darryl Dewnyne Williams, do hearby certify that a true and correct copy of the above and foregoing petition for discretionary review has been forwarded by United States Mail, postage prepaid, First class, to the state Prosecutor, P.O. Box 13046, Austin, Texas 78711, On this the 16 day of October 2015.

Inmate Declaration

I, Darryl Dewnyne Williams, TDCJ-CID# 01910015, being

*14 presently incarcerated at the Bill elements Unit of the Texas Department of Criminal Justice - Institutional Division, in Potter County, Texas, verify and declare under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge. Executed on this the 16 day of October 2015.

David Deubyne Williams TDCJ-CID # O1910015 B:H Elements Unit 9601 Spur 591 Amarillo, Texas 79107

*15 IN THE TENTH COURT OF APPEALS

No. 10-14-00030-CR

DARRYL DEWAYNE WILLIAMS, Q

*16

informant to call Williams and arrange a purchase of cocaine. Officer Allovio and the confidential informant drove to Williams's residence, and they each purchased cocaine from Williams. The residence was located within 1000 feet of a school.

Jury Charge

In his first issue, Williams argues that the trial court erred in not supplementing the jury charge instruction on the effect of good conduct time. Article 37.07 of the Texas Code of Criminal procedure states:

Sec. 4. (a) In the penalty phase of the trial of a felony case ... the court shall charge the jury in writing as follows: "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 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 equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. 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 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

*17 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."

Tex. CODE CRIM. PRO. ANN. art. 37.07 §4(a) (West Supp. 2014). The trial court instructed the jury as required by Article 37.07 §4(a). Williams's trial counsel did not object to the charge.

Williams argues that the instruction improperly implies that a person may be released from prison early and without supervision solely due to accruing good conduct time. He contends that the trial court should have supplemented the instruction to avoid confusion.

We have previously decided this issue against Williams's position, and we are not persuaded to reconsider our ruling. See Lopez v. State, No. 10-12-00282-CR, 2013 Tex. App. LEXIS 1229 (Tex.App. - Waco Feb. 7, 2013, pet. ref'd); Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121 (Tex. App. - Waco November 1, 2012, pet. ref'd); Mathews v. State, No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at 2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at 3, (Tex. App.—Waco June 27, 2012, no pet. h.). We overrule the first issue.

In his second issue, Williams complains that the trial court erred in instructing the jury during the punishment phase of the trial not to consider "sympathy" in its deliberations. The trial court instructed the jury, "Do not let personal bias, prejudice, sympathy or resentment on your part, or any such personal emotion on your part, enter into your deliberations or affect your verdict in this case."

*18

Williams did not object to the jury charge on this basis. We have also previously decided this issue against Williams's position, and we are not persuaded to reconsider our ruling. See Lopez v. State, No. 10-12-00282-CR, 2013 Tex. App. LEXIS 1229 (Tex.App. Waco Feb. 7, 2013, pet. ref'd); Paez v. State, No. 10-12-00091-CR, 2012 Tex.App. LEXIS 9121 (Tex. App. - Waco November 1, 2012, pet. ref'd); Mathews v. State, No. 10-12-00046-CR, 2012 Tex. App. LEXIS7480 at 2 (Tex. App.—Waco Aug. 30, 2012, no pet. h.); Gaither v. State, No. 10-11-00129-CR, 2012 Tex. App. LEXIS 5252 at 4, (Tex. App.—Waco June 27, 2012, no pet. h.). We overrule the second issue.

Conclusion

We affirm the trial court's judgment.

AL SCOGGINS
Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed July 23, 2015 Do not publish [CRPM]