Tommy Stewart v. State

COURT OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-06-255-CR

TOMMY STEWART APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM

THE 30TH DISTRICT COURT OF WICHITA COUNTY

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OPINION

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I. Introduction

In six issues, Appellant

Tommy Stewart appeals his conviction for the felony offense of assault on a

correctional officer. We affirm.

II. Factual Background and Procedural History

This is the case of the owner

of the State Bar. Officer Billy Cook and

Sergeant Bernardo DeLuna both testified that on March 22, 2002, they were

working as corrections officers at the TDCJ Allred Unit while Stewart was an

inmate there. As Officer Cook approached

Stewart in the unit, Stewart used abusive language toward him. Sergeant DeLuna overheard this, but could not

hear the specific words. He could tell,

however, that the language was cursing and abusive. Officer Cook testified that Stewart called him

a A stupid mother-f------ n-----. @ Officer Cook asked Stewart for

his identification, which Stewart supplied.

According to Officer Cook, as he looked at the card, Stewart struck the

him in the face. Officer Cook testified

that Stewart then grabbed him around the waist, picked him up and shoved him

against a wall, cracking a rib. Officer Cook testified that he unsnapped his

holster holding his COP (carry on person) spray, but was unable to pull it out

because Stewart had his arms around the officer = s waist. Sergeant DeLuna

witnessed the struggle. Officer Cook

finally got Stewart onto the ground, and after Sergeant Hale arrived, Stewart

was handcuffed. Once the officer = s hands were free, Stewart was already on the floor and there was no

need for the spray. Officer Cook

testified that both he and Stewart went to the infirmary.

Sergeant DeLuna testified that

he was uncertain whether Officer Cook ever discharged the spray, although at

one point, he assumed the spray was used, but he did not know that for a

fact. It was the State = s position that Officer Cook was lawfully discharging his duty when

Stewart struck him in the eye.

Stewart testified that on the

day of the incident Officer Cook was A up in the tower opening the doors @ and kept closing the door in his (Stewart = s) face. He told the jury it

was actually Officer Jackson who was working the floor with Stewart, not

Officer Cook. Officer Cook came down out

of the tower, with his COP spray in hand and asked Stewart for his

identification card. When Stewart gave

Officer Cook his card, the officer began spraying him, according to

Stewart. Stewart testified that he grabbed

the officer = s hand to

keep from being sprayed and the two of them wrestled. Officer Cook never called for help, and two

other officers stood by and watched.

Officer Cook got some spray on his own hand and then wiped his eyes,

causing redness to his face. Stewart

agreed that both he and Officer Cook went to the infirmary.

Stewart said he had never had

any trouble with Officer Jackson or Officer Cook before that day. Stewart did explain, however, that there was

a conspiracy against him because he was a graduate of the Texas A&M college

of law, a state judge on leave from the county, and in prison as part of an

undercover assignment. Stewart also

claimed to own the State Bar. [1] Stewart = s general defense was that Officer Cook acted unlawfully in

discharging his duty.

At trial, the jury found

Stewart guilty, and the judge sentenced him to twenty years = confinement, to run consecutively with Stewart = s prior sentence in cause no. 13,488, assessed on March 4, 1982.

III. Disregarding A Line of Questioning

In his first issue, Stewart

complains that the trial court improperly failed to instruct the jury to

disregard a line of questioning proffered by the State. This testimony was as follows:

[STATE]:

And then when you go into these units, have you ever been spit upon?

[OFFICER

COOKE]: Yes, sir.

[STATE]:

Have you ever had urine thrown on you?

. . . .

[DEFENSE]:

Objection. That = s

irrelevant.

THE

COURT: Sustained.

[DEFENSE]:

I would request the jury be instructed to disregard this line.

THE

COURT: That = s

overruled. Go ahead.

[STATE]:

Is it generally considered a pleasant place to work?

[COOK]:

No, sir.

Analogizing the standard of

review to that for reviewing the denial of a motion for mistrial and the

admission or exclusion of evidence, Wead v. State , 129 S.W.3d 126, 129

(Tex. Crim. App. 2004) (denial of a mistrial standard) and Rodriguez v.

State , 203 S.W.3d 837, 841 (Tex. Crim. App. 2006) (admission of evidence

standard), we review the evidence under the abuse of discretion standard. However, even assuming the trial court abused

its discretion, we hold that the trial court = s failure to instruct the jury to disregard was harmless.

Assuming error, we must

conduct a harm analysis to determine whether the error calls for reversal of

the judgment. Tex. R. App. P. 44.2.

If the error is constitutional, we apply rule 44.2(a) and reverse unless

we determine beyond a reasonable doubt that the error did not contribute to

appellant = s conviction

or punishment. Tex. R. App. P. 44.2(a).

Otherwise, we apply rule 44.2(b) and disregard the error if it did not

affect appellant = s

substantial rights. Tex. R. App. P. 44.2(b); see Mosley

v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh = g), cert. denied , 526 U.S. 1070 (1999); Coggeshall v. State ,

961 S.W.2d 639 , 642 B 43 (Tex.

App. C Fort Worth 1998, pet. ref = d).

Trial court error regarding

the admission of evidence is generally nonconstitutional error. See Soloman v. State , 49 S.W.3d

356, 364 (Tex. Crim. App. 2001). Because

the trial court denied Stewart = s request for an instruction to disregard an improper line of

questioning, we conclude that the trial court = s error, in any, was nonconstitutional. Therefore, rule 44.2(b) is applicable. Tex.

R. App. P. 44.2(b). A substantial

right is affected when the error had a substantial and injurious effect or

influence in determining the jury = s verdict. King v. State ,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United

States , 328 U.S. 750, 776 , 66 S. Ct. 1239, 1253 (1946)); Coggeshall,

961 S.W.2d at 643 . In making this

determination, we review the record as a whole. See Johnson v. State , 967 S.W.2d 410, 417

(Tex. Crim. App. 1998).

The first question the

prosecutor asked Officer Cook about Stewart was eighteen questions after the

previously recounted exchange. That

exchange did not mention Stewart or implicate Stewart as the urine

thrower. Further, the gap between the

exchange and the first question about Stewart does not tie Stewart to the

irrelevant exchange.

We conclude that, in the

context of the entire case against Stewart, the trial court = s assumed error in failing to instruct the jury to disregard did not

have a substantial or injurious effect on the jury = s verdict and did not affect Stewart = s substantial rights. See

King , 953 S.W.2d at 271 . Thus, we

disregard the error. See Tex. R. App. P. 44.2(b). We overrule Stewart = s first issue.

IV. State = s Exhibit Number Three

In his second issue, Stewart

asserts error on the part of the trial court in admitting State = s Exhibit 3, a A Criminal

Case Voluntary Statement @ by Sergeant

DeLuna, an eye witness to the Stewart-Cooke confrontation.

The standard of review for a

trial court = s

evidentiary ruling is abuse of discretion.

Sauceda v. State , 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)

(citing Angleton v. State , 971 S.W.2d 65, 67 (Tex. Crim. App.

1998)). If the ruling was correct under

any theory of law applicable to the case, in light of what was before the trial

court at the time the ruling was made, then the ruling must be upheld. Sauceda , 129 S.W.3d at 120 (citing State

v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)); Weatherred v. State ,

15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Romero v. State , 800 S.W.2d

539 , 543 B 44 (Tex. Crim. App. 1990). Even

if it was error to admit the evidence, the error is cured if the same facts are

proved by other unobjected-to evidence. Ethington

v. State , 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Purtell v. State ,

761 S.W.2d 360, 376 (Tex. Crim. App. 1988), cert. denied , 490 U.S. 1059

(1989).

During the direct examination

of Sergeant DeLuna by the State, testimony was elicited that Officer Cooke

pulled out his COP during the scuffle with Stewart, but Sergeant DeLuna did not

see him spray Stewart and could not tell weather Stewart was sprayed or

not. Later, during cross-examination,

defense counsel showed a portion of State = s Exhibit 3, which had been highlighted, to Sergeant DeLuna wherein he

had stated that Officer Cooke had sprayed Stewart in the face. Defense counsel also elicited testimony from

Sergeant DeLuna that the statement was made about two hours after the confrontation

when the events were fresh in his mind.

Thereafter, the State offered

the exhibit itself into evidence under the Rule of Optional Completeness, Texas

Rules of Evidence. Tex. R. Evid. 107. The State = s reason for seeking such introduction was to show that also in that

report Sergeant DeLuna stated he was unsure whether Officer Cook had sprayed

the COP spray. Defense counsel objected

that he had never offered the written document itself into evidence and further

that it was inadmissible A under

608--603 as extraneous documentary evidence, under [s]ubpart C, Texas Rules of

Evidence, 613, [s]ubpart C. @ The objection was overruled

and the document admitted. Rule 603 is

entitled A Oath or

Affirmation @ and was

apparently a misstatement by counsel. Tex. R. Evid. 603. Rule 608 contains the phrase A extrinsic evidence @ as opposed to A extraneous

evidence @ and refers to the fact that specific instances of the conduct of a

witness, offered for the purpose of attacking or supporting a witness = s credibility, may be not proven by extrinsic evidence. Tex.

R. Evid. 608(b). The exact nature

of and reliance on this rule is not made clear in the record from the trial court. Rule 613(c) provides that the prior statement

of a witness which is consistent with the testimony of the witness is generally

inadmissible unless the prior statement is consistent with his testimony and is

offered to rebut an express or implied charge of recent fabrication. Tex.

R. Evid. 613(c). This rule would

be a reason to support the State = s offering of the document, not an objection thereto. Therefore, we will construe the initial part

of counsel = s objection

as an objection to the State = s offer of the document under the Rule of Optional Completeness.

The Rule of Optional

Completeness reads as follows:

When

part of an act, declaration, conversation, writing or recorded statement is

given in evidence by one party, the whole on the same subject may be inquired

into by the other, and any other act, declaration, writing or recorded

statement which is necessary to make it fully understood or to explain the same

may also be given in evidence, as when a letter is read, all letters on the

same subject between the same parties may be given. A Writing or recorded statement @

includes depositions.

Tex. R. Evid. 107.

Under the Rule of Optional

Completeness, when only a portion of an act, declaration, conversation,

writing, or recorded statement is introduced, the adverse party is entitled to

introduce into evidence the remaining parts or any related act, declaration,

writing, or recorded statement necessary to a full understanding of the

evidence, or to explain that evidence. Id. Rule 107 is one of admissibility and

permits the introduction of otherwise inadmissible evidence when that evidence

is necessary to fully and fairly explain a matter A opened up @ by the

adverse party. See Johnson v. State ,

747 S.W.2d 451 , 453 B 54 (Tex.

App. C Houston [14th Dist.] 1988, pet. ref = d). A The so‑called

rule of optional completeness takes effect when other evidence has already been

introduced but is incomplete and misleading. @ Jones v. State , 963

S.W.2d 177, 182 (Tex. App. C Fort Worth 1998, pet. ref = d). A Once an evidentiary door has been opened by one side, this rule serves

to allow the other side to complete the picture. @ West v. State , 121

S.W.3d 95, 103 (Tex. App. C Fort Worth

2003, pet. ref = d).

In common practice, this rule

is used when a portion of a document is read into evidence and opposing counsel

wants other portions of the document read into evidence. When a document, or part thereof is itself

offered, Rule 106 is applicable. That

rule reads:

When

a writing or recorded statement or part thereof is introduced by a party, an

adverse party may at that time introduce any other part or any other writing or

recorded statement which ought in fairness to be considered contemporaneously

with it. A Writing

or recorded statement @

includes depositions.

Tex. R. Evid. 106.

In the factual scenario

presented here, however, a portion of a document was initially only read, and

then the document itself was subsequently offered by opposing counsel. A close examination of Rule 107 indicates

that when a part of a writing is A given in evidence @ the whole writing on the same subject may be A inquired into by the other @ party. Tex. R. Evid. 107. The

rule does not define the term A inquired into. @ The rule does state that any other writing

necessary to fully understand or explain the initial offering A may also be given in evidence, as when a letter is read, all letters

on the same subject . . . may be given. @ Id. This language indicates that if a portion of

a document is read into evidence, then other portions or other writings may only

be read into evidence. In other words,

if one party simply reads from a document, the party does not open the door for

the opposing party to admit the document into evidence.

Therefore, we hold under the

plain language of Rule 107 that it was error to admit State = s Exhibit 3 into evidence when a portion thereof had only been read

into evidence. See id. However, an examination of State = s Exhibit 3 shows that the pertinent portion of the exhibit, that is,

where Sergeant DeLuna stated that Officer Cooke sprayed Stewart in the face,

but also indicated that he could not tell whether the spray was discharged, was

evidence that had already been admitted without objection through the testimony

of Sergeant DeLuna. Hence, the trial

court = s error in admitting the document was harmless. See Reyes v. State , 84 S.W.3d 633, 638

(Tex. Crim. App. 2002) (finding any error in admission of evidence harmless if

cumulative of evidence admitted elsewhere without objection). We overrule Stewart = s second issue.

V. Closing Argument

In his third issue, Stewart

asserts error on the part of the trial court in overruling his objection to a

portion of the State = s closing

argument.

To be permissible, the State = s jury argument

must fall within one of the following four general areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of

opposing counsel; or (4) plea for law enforcement. Felder v. State , 848 S.W.2d 85 , 94 B 95 (Tex. Crim.

App. 1992), cert. denied , 510 U.S. 829 (1993); Alejandro v. State ,

493 S.W.2d 230, 231 (Tex. Crim. App. 1973).

During closing argument, the

prosecutor in the case told the jury

You = re

instructed that a public servant C it = s the

second paragraph [paragraph 11 of the jury charge] C acting

under the power of his office or employment commits an offense if he

intentionally subjects another to mistreatment.

Okay. Now, that sounds awfully

broad. That sounds like if you even look

at him cross-eyed you committed a crime.

Obviously that = s not

what it seems to say because other parts of this Charge tell you under what

condition it actually becomes a crime.

First of all, he has to know that his conduct is unlawful. In prison situations sometimes you have to

mistreat offenders because they just won = t do what they = re

told. They won = t

cooperate.

Defense counsel objected A That = s a

misstatement of the law. There is no

constitution or legal right to mistreat. @ This objection was overruled.

The prosecutor continued with

examples of prison life and stated, A That = s life in a

prison system. Sometimes mistreatment

has to happen . . . you = ll think it = s mistreatment . . . . So just

because someone thinks they = ve been mistreated is not necessary so. It has to be unlawful mistreatment. @ No further objection was

made.

Assuming that the trial court

did err by overruling Stewart = s objection, we must assess whether that assumed error was

harmful. Prosecutorial misstatements of

law are not constitutional in nature. Coggeshall ,

961 S.W.2d at 643 . In conducting a harm

analysis under rule 44.2(b), we disregard nonconstitutional errors unless

appellant = s

substantial rights are affected. As

previously noted, a substantial right is affected when error has a substantial

and injurious effect or influence on the jury = s verdict. King , 953

S.W.2d at 271 . In making this

determination, we review the record as a whole. See Johnson , 967 S.W.2d at 417 .

Section 9.53 of the Texas

Penal Code provides that

An

officer or employee of a correctional facility is justified in using force

against a person in custody when and to the degree the officer or employee

reasonably believed the force is necessary to maintain the security of the

correctional facility, the safety or security of other persons in custody or

employed by the correctional facility, or his own safety or security.

Tex. Penal Code Ann. ' 9.53

(Vernon 2003).

A reading of the entire

closing argument shows that the A mistreatment @ language

was in the context of a discussion that under certain circumstances force is

necessary in a prison setting to maintain order and safety. When analyzed in its context, the State = s argument was basically that the use of reasonable force did not

constitute unlawful mistreatment. Furthermore,

after reviewing all the evidence, we hold the trial court = s assumed error of overruling Stewart = s objection did not have a substantial or injurious effect on the jury = s verdict and did not affect Stewart = s substantial rights. See

King , 953 S.W.2d at 271 . Thus, we

disregard the error. See Tex. R. App. P. 44.2(b). We overrule Stewart = s third issue.

VI. Arguing Outside the Record

In his fourth issue, Stewart

asserts error on the part of the trial court in overruling his objection that

the State = s argument

was outside the record.

If a jury argument exceeds the bounds of proper argument,

the trial court = s erroneous overruling of a defendant = s objection is not

reversible error unless it affected the appellant = s substantial

rights. Id. ; Martinez v. State ,

17 S.W.3d 677 , 692 B 93 (Tex. Crim. App. 2000); Mosley v.

State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh = g), cert.

denied , 526 U.S. 1070 (1999). In

determining whether the appellant = s substantial

rights were affected, we consider: (1) the severity of the misconduct (i.e.,

the prejudicial effect of the prosecutor = s remarks), (2)

curative measures, and (3) the certainty of conviction absent the

misconduct. Martinez , 17 S.W.3d

at 692 B 93; Mosley ,

983 S.W.2d at 259 .

During closing argument, the

prosecutor told the jury that the members of legislature

aren = t

complete idiots. They know that prisons

are dangerous places and sometimes you just have to force people to do things

they don = t

want to do. But I would submit to you

that he wasn = t

abused in any way. He was taken directly

to medical after they got him handcuffed to make sure he was all right.

An objection was made and

overruled. Stewart does not favor this

court with an explanation of what portion of the aforementioned argument was

outside the record. He does cite us to

case law indicating that it is error for the State to A inject new facts harmful to the accused into the trial proceedings,

citing Mathews v. State , 635 S.W.2d 532, 539 (Tex. Crim. App. 1982), and

points out that it can be reversible error if a jury argument injects new and

harmful facts into case or is extreme or manifestly improper. @ Plummer v. State , No.

14-89-00685-CR, 1991 WL 37003 , at *6 (Tex. App. C Houston [14th Dist.] March 21,

1991, no pet.) (not designated for publication) (citing Landry v. State ,

706 S.W.2d 105, 110 (Tex. Crim. App. 1985), cert. denied , 479 U.S. 871

(1986)).

We can in no way envision how

the complained of argument injected new facts into the case or even how it was

improper. See Plummer , 1991 WL

37003 , at *6. Considering the

appropriate factors, we hold that the severity of the prosecutor = s misconduct, if any, was minimal.

See Martinez , 17 S.W.3d at 692 B 93 . Moreover, even absent the alleged misconduct,

there was a significant degree of certainty of conviction given the wealth of

evidence presented against Stewart at trial.

See id. Therefore, we hold

that even if the trial court erred by overruling Stewart = s objection, it did not affect Stewart = s substantial rights. See

Tex. R. App. P. 44.2(b) . Stewart = s fourth issue is overruled.

VII. Requested Defense Instruction

In his fifth issue, Stewart

complains that the trial court erred by not granting a requested defense

instruction regarding the lesser-included charge of misdemeanor assault.

Stewart offered the following

requested instruction which was denied by

the court:

If you find beyond a reasonable doubt that, on or

about March 22, 2002, in Wichita County, Texas, the defendant intentionally,

knowingly or recklessly caused bodily injury to Billy Cook, but you do not find

or have a reasonable doubt that Billy Cook was lawfully discharging an official

duty as a public servant, then you will find the defendant guilty of the lesser

offense of Assault.

If you should find from the evidence beyond a

reasonable doubt that the defendant is guilty of either Assault on a Public

Servant or Assault, but you have a reasonable doubt as to which offense he is

guilty, then you should resolve that doubt in the defendant = s

favor and find him guilty of the lesser offense of Assault.

If you have

a reasonable doubt as to whether the defendant is guilty of any offense, then

you should acquit the defendant and say by your verdict, A Not Guilty. @

The court instructed the jury

that if they found beyond a reasonable doubt that Stewart committed the crime

charged in the indictment that they would find him guilty as charged in the

indictment,

but

if you do not so believe, or if you have a reasonable doubt thereof, you will

acquit the defendant of Assault Against a Public Servant and next consider

whether the defendant is guilty or not of Assault.

Now if you find from the

evidence beyond a reasonable doubt that on or about [the] 22nd day of March

2002, in Wichita County, Texas, the defendant, Tommy Stewart, then and there

intentionally, knowingly, or recklessly caused bodily injury to Billy Cook by

hitting Billy Cook in the left eye then you will find the defendant, Tommy

Stewart, guilty of Assault and so say by your verdict.

Unless you so find beyond a

reasonable doubt, or if you have a reasonable doubt thereof, you will find the

defendant A Not guilty. @

Thus, it is clear that the

court did include a charge regarding the lesser-included charge of misdemeanor

assault. Stewart cites Granger v.

State for the principle that A an accused has the right to an instruction on any defensive

issue raised by the evidence, whether that evidence is weak or strong,

unimpeached or contradicted, and regardless of what the trial court may or may

not think about the credibility of the evidence. @ 3 S.W.3d 36, 38 (Tex. Crim.

App, 1999) (emphasis added). We

recognize that this is a correct statement of the law. However, this authority only entitled Stewart

to an instruction , not an instruction of his choosing. See id. (emphasis added).

Stewart relies on Hall v.

State for the proposition that when a public servant acts unlawfully in the

discharge of his duty he loses the special protection of the law. See Hall v. State , 158

S.W.3d 470, 471 (Tex. Crim. App. 2005).

We agree that this is a correct reading of Hall . See id. However, Hall is distinguishable from

the case at bar. In Hall the

trial court denied any jury instruction on the lesser-included offense

of misdemeanor assault. See id.

at 472 . Stewart received such a charge,

and thus we must conclude that his contention on appeal is that he did not like

the way the court laid out and worded its charge. Stewart has pointed us to no authority, nor

have we found any, that characterizes a defendant = s dissatisfaction with the wording of the jury charge as error, much

less reversible error.

Because Stewart received an

instruction of the lesser-included offense of misdemeanor assault, we find no

error and overrule his fifth issue.

VIII. Consecutive Sentencing

In his sixth issue, Stewart

asserts that the trial court erred in not including a requested instruction in

the punishment phase of the trial in the charge to the jury.

Stewart requested that the

following instruction be given to the jury:

You

are further instructed that, under the law applicable in this case, if a

defendant is sentenced for an offense committed while the defendant was an

inmate in the Institutional Division of the Texas Department of Criminal

Justice and the defendant has not completed the sentence he was serving at the

time of the offense, the judge shall order the sentence for the subsequent

offense to commence immediately on completion of the sentence for the original

offense.

The request was denied. Stewart attempts to analogize the requested

instruction to a statement in Simmons v. South Carolina , 512 U.S. 154,

156 , 114 S. Ct. 2187, 2190 (1994) (plurality opinion), which held that when A state law prohibits the defendant = s release on parole, due process requires that the sentencing jury be

informed that the defendant is parole ineligible. @ Id . at 154, 114 S. Ct.

at 2190 . Stewart acknowledges that

unlike Simmons, his is not a death penalty case but argues that the jury could

be led either directly or inadvertently to believe that an inmate litigant

needs a longer sentence because a portion of it or all of it will be eaten up

by his present sentence.

Case law does not support

Stewart = s position. In Levy v. State ,

860 S.W.2d 211, 213 (Tex. App. C Texarkana 1993, pet. ref = d), the court, in rejecting such an instruction, noted that A [i]n the absence of specific constitutional or statutory authority to

do so, the court should not instruct the jury as to the effect of the parole

laws or how long [an appellant] will be required to actually serve under a

given sentence. @ Id. Stated differently, it would be improper for a

trial court to instruct a jury on the consecutive sentencing law or to inform

it of the effect such law might have on how long a defendant might serve. See Clay v. State , 102 S.W.3d 794, 798

(Tex. App. C Texarkana

2003, no pet.). Further, Texas Code of

Criminal Procedure article 37.07, section 4(c) requires that the jury be

charged as follows, as it was in this case:

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 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. Proc.

Ann. art. 37.07, ' 4(c) (Vernon 2006).

Simply put, we agree with our

sister court = s prior

holdings that the instruction requested by Stewart is outside of constitutional

and statutory authority and thus, improper.

Furthermore, the concern expressed by Stewart as to the thought process

of the jurors is not supported by anything in the record nor was it suggested

by the prosecutor in closing argument.

Moreover, article 37.07, section 4(d) reads, A This section does not permit the introduction of evidence on the

operation of parole and good conduct time laws. @ Id . art. 37.07, ' 4(d). For all the foregoing

reasons, Stewart = s sixth

issue is overruled.

IX. Conclusion

Having overruled Stewart = s six issues, we affirm the trial court = s judgment.

BOB MCCOY

JUSTICE

PANEL F: HOLMAN, GARDNER, and MCCOY, JJ.

PUBLISH

DELIVERED:

March 29, 2007

[1] A. I own the damn state bar.

Q. You

own the state bar?

A. Yes,

I do.