NO. 0283-00








Cochran, J., delivered the opinion of the Court., joined by Keller, P.J., Meyers, Keasler, Hervey, and Holcomb, JJ. Price and womack, JJ., concurred in the judgment. Johnson, J., filed a concurring opinion.


Appellant challenges the trial court's submission of the statutorily-required parole law instruction at the punishment stage. Appellant argues that, because he is not eligible for release on mandatory supervision, the trial judge erred in giving the jury the instruction concerning "good conduct time." Moreover, because this portion of the charge does not apply to him, appellant contends that informing the jury about "good conduct time" violated his due process rights. Finally, he asks what harm analysis applies-the standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), or Rule 44.2(a) of the Texas Rules of Appellate Procedure concerning constitutional error-in the event giving the instruction on "good conduct time" is erroneous or unconstitutional. We conclude that the parole law charge is not unconstitutional as applied to him, and thus it was not error for the trial court to include this legislatively-mandated instruction in its punishment charge. (1) Therefore, we affirm the decision of the Ninth Court of Appeals, which had rejected these same contentions. Luquis v. State, 997 S.W.2d 442 (Tex. App. - Beaumont 1999).


Appellant was convicted of murdering a fellow prison inmate by repeatedly stabbing him with a steel rod or "shank." Appellant described the murder in his written confession:

I'm guilty. I stabbed the man. I was in the 7 AB dayroom around 3:00 or 4:00 p.m. with Xavier Guerrero. We were just talking about home and the world. Pablo Nunez came in and started talking s*** to me. There was about 15 people in the dayroom looking at me like, Are you going to let him talk to you that way? He had been messing with me for about two weeks. I went to my house which is 7-AB 35 cell and got two shanks. One was a big one and one was a small one. The big one was crooked on one end and the other one was made out of part of a bucket. I gave Xavier the big shank and asked him to help me. Pablo was in the dayroom and did not know we had the shanks. I told Pablo, Let's take care of business. He wanted to go to the second row shower, but the picket boss could see us. We went to 3 Row to the shower and Xavier was following me. Pablo told Xavier to stay out of it and go downstairs. I started swinging and stabbed him in the side. I tried to stab him in the leg, but I had all that hate inside me and I just went crazy. He got away and ran downstairs to the door to get out, and I grabbed him and started stabbing him. Xavier was stabbing him, also. I looked over and the boss told me or motioned for me to get on the floor. We both dropped our shanks and got on the floor. If the door had been open, it would have turned out different than it did.

The medical examiner testified that the victim died of multiple stab wounds, four of which punctured his left lung. Several prison guards testified that they viewed, through the plexiglass dayroom door, much of the stabbing, which occurred just four to five feet from them. However, they could not enter the locked dayroom, or let the wounded inmate out, until security back-up arrived. By that time the victim was dead, and appellant, smiling at the officers, threw the shank away and finally obeyed the commands to lie down.

At the punishment phase, the State offered evidence of appellant's four prior burglary of a habitation convictions, for which he had been sentenced to thirty years imprisonment. The defense called no witnesses at either stage of the trial.

During the punishment charge conference, appellant's counsel objected to the inclusion of the statutorily-required parole law instruction, (2) and submitted a proposed alternative instruction. (3) The trial judge rejected appellant's proposed instruction and gave the statutorily-required parole instruction.

Appellant referenced the parole charge during punishment closing arguments, stating:

The parole instruction in the jury charge says the person doesn't become eligible for parole until they've served half, 50 percent, or 30 years, whichever is less. 30 years is a long, long time in anybody's life. I'm asking for you to show mercy because you can because he has a 30-year sentence already and any sentence you give him today, he will not begin to serve until his 30-year sentence ceases to operate.

The State, in return, requested a life sentence and obliquely referred to the parole charge by saying: "I'm not asking you to give Edgar Luquis 30 years. That was in response to the part of the charge that says he'll have to serve half or thirty years, whichever is less." The jury returned a life sentence after deliberating slightly more than one hour.

The Beaumont Court of Appeals rejected appellant's claims that: 1) the trial court erred in giving the statutorily required parole instruction because it included language concerning good conduct time, although good conduct time would not count toward appellant's parole eligibility date; and 2) the trial court erred in denying appellant's request that the jury charge include a definition and description of parole. Luquis, 997 S.W.2d at 444. We granted appellant's five grounds for review.


The statutory parole charge instructs a jury in very general terms about the existence and possible grant of parole. It explicitly informs the jury that persons such as appellant are ineligible for release on parole until they have served one-half of their sentence or thirty years, whichever is less. The instruction also refers to the concept of "good conduct time" and states that a person sentenced to prison might earn some reduction in his period of incarceration (though not a reduction of his sentence) through the discretionary award of good conduct time. (4) The final two paragraphs of the instruction clearly warn the jury that neither they, nor anyone else, can accurately predict how the concepts of "good conduct time" or parole might be applied to any particular person and thus they may not consider how those concepts might apply to the defendant. Thus, the over-all purpose of the instruction is to inform jurors of these concepts as a general proposition, but to prohibit the jury from using its notions of parole or "good conduct time" in any calculus in assessing the appropriate punishment.

Historically, Texas courts held that it would violate the separation of powers clause for a jury to consider when the Board of Pardons and Paroles might release an inmate on parole because it would constitute a judicial encroachment upon an executive function. (5) Nonetheless, in 1985, the Legislature added Section 4 to Article 37.07, (6) which required trial courts to instruct juries in non-capital felony trials about the law of parole generally. Two years later, this Court declared that legislative enactment unconstitutional because it violated the separation of powers and due course of law doctrines. (7)

In 1989, presumably in reaction to this Court's decision in Rose v. State, Texas citizens voted to amend Article IV, Section 11(a) of the Texas Constitution to provide:

The Legislature shall by the law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense. (8)

This amendment explicitly authorized the Texas Legislature to enact statutory language to fulfill its mandate, (9) and the Legislature re-enacted article 37.07, section 4(a) in 1989. This Court determined that the re-enacted statute did not violate a defendant's due course of law rights under the Texas Constitution, (10) while in other cases, this Court determined that article 37.07, section 4(a)'s parole instruction did not violate the federal constitution's due process clause. (11)

When the Legislature first enacted article 37.07, section 4(a) in 1985, the parole law and "good conduct time" instruction was both legally accurate and applicable to inmates such as appellant. (12) At that time, all non-capital felony convicts, except those whose convictions contained a deadly weapon finding, were eligible for release on mandatory supervision. (13)

In 1987, however, even before it re-enacted the parole law instruction, the Texas Legislature revised the mandatory supervision law (14) to make release on mandatory supervision unavailable to offenders who, like appellant, have been convicted of murder or other designated first or second degree felonies. (15) Thus, appellant is not eligible for release on mandatory supervision, regardless of how much good time he might accrue, nor does his "good conduct time" make him eligible for parole any sooner than he would be without "good conduct time" credits. His parole eligibility is set at the lesser of one-half of his actual sentence or thirty years. Period. The Legislature has not, in the past fourteen years, amended article 37.07, section 4(a) to reflect these changes in the mandatory supervision law. Thus, the portions of the parole law instruction discussing "good conduct time" now only marginally apply to one in appellant's position. (16)


Appellant's core complaint is that the parole law instruction language concerning "good conduct time" is misleading and erroneous as applied to him and to those similarly situated because he is not, in fact, eligible for release on mandatory supervision. Appellant does not explain how a jury will be misled by this instruction or what it might do as a consequence. We assume that the danger appellant fears is that a jury might increase his sentence to compensate for what it could perceive as the possibility that he might otherwise be released from prison too soon due to "good conduct time."

To those who are familiar with the Texas mandatory supervision law and its potential to lesson the actual amount of time an inmate spends in prison, this language is somewhat misleading. The jury, however, is told nothing about the existence of the mandatory supervision law or how that law might reduce the actual prison time of any prisoner. To those closely conversant with the Texas parole system, the term "good conduct time" conjures up not mere visions of an institutional reward system-the carrot for good conduct--but its mathematical connection to possible release on mandatory supervision for those who are eligible. There is, however, 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.

Appellant's first ground for review contends that the trial judge in this case committed error because he included the legislatively-mandated words contained in article 37.07, section 4(a) in the punishment charge.

The Texas Legislature enacted legislation that requires the trial judge to instruct the jury in the precise wording that 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. (17) 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.

Trial judges, then, are faced with a dilemma. If they do not give the statutorily mandated instruction, they violate the Legislature's law. (18) If they do give the instruction, defendants such as appellant and those similarly situated may claim that portions of the instruction might be misleading and inapplicable to them. 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. (19) Therefore, because the trial judge in this case instructed the jury according to the legislative dictate expressed in article 37.07, section 4(a), he did not commit error. (20) Therefore, we overrule appellant's first point of error.

Next, appellant argues that the "jury instruction on good conduct time is unconstitutional under both the federal and State constitutions because it is a misstatement of the law and affirmatively misleads the jury." Appellant makes no distinction between his rights under the Texas and federal constitutions. Therefore we will treat them as being the same in this context. (21)

The legislatively mandated instruction informs the jury about parole and good conduct time generally, but it also explicitly tells them not to consider the manner in which the parole law or good conduct time might be applied to this particular defendant. (22) Appellant, however, argues that the statutory language is unconstitutional

because it affirmatively misleads the jury by stating that Appellant may earn time off the period of incarceration by earning good conduct time, when in fact good conduct time is irrelevant to the amount of time Appellant will serve on his sentence.

Although appellant is correct in concluding that good conduct time has no effect on his parole eligibility date and that he is not eligible for mandatory supervision, it does not necessarily follow that good conduct time he earns will have no effect on the time appellant actually serves in prison on his sentence. (23) Furthermore, the jury is told only that earning good conduct time "may" result in "time off the period of incarceration imposed," and not that it necessarily will. (24)

The practical import of the trial court's instruction to the jury is that "If an inmate behaves well, he will likely get out of prison sooner than if he misbehaves. However, no one can predict when he will actually get out, except that it will not be until he has served at least one-half his sentence or thirty years." This is the message that the Legislature intended to convey in section 4(a), and this is, under any fair reading of the instruction, the message that it did convey. That is a legally accurate message.

The constitutional issue before us, then, is this: Does a statute which informs the jury of the existence of good conduct time, briefly describes that concept, and explicitly tells the jury not to apply that concept to the particular defendant, violate due process if the defendant's eligibility for parole or release on mandatory supervision will not be affected by good conduct time? (25) We conclude that it does not.

First, we start with the normal presumption that the statute is constitutional and does not violate a defendant's due process rights. (26) Appellant must shoulder the burden to establish that the jury instruction required under article 37.07, section 4(a) is unconstitutional. (27)

We agree with our sister court, the Supreme Court of Texas, that the mere fact that opinions regarding a statute's constitutionality may differ is not a sufficient basis to strike down the legislation. (28) We note that many Texas intermediate courts have considered the very same issue that appellant presents and have, almost uniformly, found that the "good conduct time" instruction does not violate due process. (29) While we are not bound by either the reasoning or result of those judicial decisions, they at least indicate that many reasonable minds have examined this instruction and concluded that it does not violate due process. (30)

The United States Supreme Court has directed that, when reviewing a challenged jury instruction, "'the only question . . . is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" (31) That Court has also held that "the instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (32) We also address whether there is a "reasonable likelihood" that the jury applied the challenged instruction in a "way that violates the Constitution." (33)

Thus, a fair analysis of the parole instruction and the claim that it violates due process requires us to consider the instruction as a whole. (34) The first two paragraphs mention good conduct time and parole in a general way. The third makes it clear that appellant's eligibility for parole is one-half his actual sentence, or thirty years, whichever is less, "without consideration of any good conduct time he may earn." This sentence contains the instruction's only indicative language, unlike the rest of the instruction which is written in conditional language, replete with "may," "might," "possible," "does not guarantee," and "cannot be accurately predicted." This one factual sentence is the heart of the matter. Appellant makes no claim that this sentence is in any way misleading or erroneous. The final two paragraphs merely go on to explain that no one can predict whether (and if so, how) parole or good time might be applied to appellant.

Thus, while the jury may consider the existence of parole and good conduct time, it may not consider how good conduct time or the parole law may be applied to appellant. (35) We assume that the jury followed the instructions as given (36) and, under Supreme Court precedent, we will not find federal constitutional error unless we conclude that a reasonable jury probably was actually confused by this charge. (37)

Appellant relies upon the Ninth Circuit case, Gallego v. McDaniel, (38) for the proposition that jury instructions which are legally accurate as a general proposition may be misleading as applied to the facts in a particular case. Although we do not necessarily disagree with that proposition, appellant has failed to demonstrate that the parole law instruction in this case was calculated to mislead this jury or that there is a reasonable probability that it did mislead this jury. (39)

Nothing in this 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 in argument or urged the jury to assess a greater (or lesser) sentence based upon any potential good conduct time credit. The jury did not send out any notes indicating or expressing confusion about the possible application of good conduct time to appellant. Although appellant received the maximum sentence possible, life in prison, that is unsurprising given appellant's crime, his cavalier confession, and his abysmal prior criminal record.

Although it is theoretically possible that the jury could have been affirmatively misled in some unspecified way by the totality of the parole law instruction, appellant has not demonstrated a reasonable likelihood that it was, in fact, misled or that it assessed a higher sentence based upon any misconstruction of the parole law charge. We therefore conclude that the parole law instruction, judged as a whole, was not misleading and certainly not so misleading as to convert appellant's trial into a fundamentally unfair proceeding which denied him due process. (40) Indeed, if the jury followed the judge's clear and explicit direction to not apply the general concepts of parole or "good conduct time" in assessing appellant's sentence, there was no error, confusion, or harm. There is no showing that the jury did not follow the instruction in this case. Thus, appellant has failed to shoulder his burden to demonstrate that there is a reasonable likelihood that this jury unconstitutionally misapplied the concept of "good conduct time" to assess a higher sentence as a result of the instruction, thereby denying appellant due process or due course of law.

Because we conclude that appellant has failed to show that his due process rights were violated by the trial judge's action of instructing the jury in accordance with the statutory wording, we need not address the question of what harm analysis would apply if there were a due process violation. Therefore, appellant's fifth ground for review is dismissed as moot.

We affirm the judgment of the trial court and the Ninth Court of Appeals.

Cochran, J.

Delivered: April 10, 2002


1. We granted review on the following five grounds: