# Edwin Figueroa v. the State of Texas

> Texas Court of Appeals, 1st District (Houston) · June 15, 2023

URL: https://www.frixlaw.com/law-library/cases/9402935

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** June 15, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9402935

## How later opinions describe it (automated extraction)

- noting that “core concept” of sudden passion defense is that “a person’s mental state has rendered him incapable of rational thought and collected action”

## Opinion text

Opinion issued June 15, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00179-CR
———————————
EDWIN FIGUEROA, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1627794

MEMORANDUM OPINION

A jury found appellant, Edwin Figueroa, guilty of the first-degree felony

offense of murder.1 After making a negative finding on a sudden passion special

issue, the jury assessed Figueroa’s punishment at thirty-seven years’ confinement.

1
See TEX. PENAL CODE § 19.02(b)(1)–(2).
In two issues, Figueroa contends that (1) legally and factually insufficient

evidence supports the jury’s negative finding on the sudden passion special issue;

and (2) the trial court erred by including surplus language in the punishment-phase

charge relating to parole. We affirm.

Background

Former high school sweethearts Edwin Figueroa and Lisbeth Cabrera are

common-law married and have two young children together. They also worked

together as owners and operators of a roofing business in Houston. The complainant,

Raphael Serrano Nunez, was one of their employees. More than just an employee,

however, Nunez was also Figueroa’s friend. When Nunez started to slide off a roof

on a cold, wet day, Figueroa managed to grab him and take the brunt of the fall

himself. He also helped Nunez when Nunez had an encounter with Immigration and

Customs Enforcement. Figueroa helped Nunez because “[h]e was family. You look

out for family.”

One night, Figueroa and Nunez went to a bar together, and Figueroa started

talking to a woman. Nunez gave Figueroa’s phone number to the woman, and she

and Figueroa started texting. This progressed to Figueroa taking the woman to

Nunez’s apartment—at Nunez’s suggestion—and having sex with her.

Unbeknownst to Figueroa at the time, Nunez told Cabrera about Figueroa’s affair.

2
When Cabrera found out about Figueroa’s infidelity, she kicked him out of

their house, and they separated. Figueroa then moved in with Nunez and stayed at

his apartment. Again unbeknownst to Figueroa, Nunez and Cabrera started dating.

Figueroa knew that Nunez was seeing a woman because Nunez had a habit of telling

Figueroa what he would do with this woman, but Figueroa did not know that the

woman Nunez was describing was Cabrera. Nunez and Cabrera dated for

approximately two months.

On April 10, 2019, Figueroa, Nunez, and several other employees of

Figueroa’s roofing company were working at a construction site on the far north side

of Houston. They arrived at the site around 7:00 a.m. Throughout the day, Figueroa

kept texting Cabrera. He had grown suspicious about how Cabrera had learned of

his extramarital affair, and he finally asked her if she was “talking to” Nunez.

Cabrera denied it, but Figueroa remained unconvinced.

Immediately after this text exchange with Figueroa, Cabrera sent Nunez a text

message informing him of Figueroa’s suspicions. She instructed Nunez to deny that

they were having an affair if Figueroa asked. At this time, Nunez was working, but

his phone was playing music for the workers. Figueroa looked at Nunez’s phone and

saw Cabrera’s message. This message did not state that it was from Cabrera; instead,

Nunez had Cabrera listed in his phone as “my queen” in Spanish. Figueroa saw this

message around 5:00 or 5:30 p.m.

3
Angry and crying, Figueroa called Cabrera and demanded to know whether

she was having an affair with Nunez. According to Figueroa, Cabrera again denied

having an affair, so he decided to confront Nunez. Nunez also denied having an affair

with Cabrera, saying that “it wasn’t what [Figueroa] thought it was.” Enraged,

Figueroa started punching Nunez, hitting him several times in the face and head. The

argument and physical fight lasted for approximately ten minutes before Figueroa

fired Nunez and ordered him to leave the construction site.

Nunez complied and called Cabrera, who called a ride-sharing service to pick

Nunez up from the site. Although Nunez wanted to see Cabrera, she was afraid of

what might happen if Figueroa saw them together. Nunez decided to go back to his

apartment and take a shower.

Meanwhile, Figueroa remained at the construction site for approximately two

more hours. Although he tried to continue working, he “was thinking of how

everything happened.” Worried that Cabrera was going to take their kids and leave

with Nunez, Figueroa repeatedly called and texted her, but she would not answer

him. Figueroa also called Cabrera’s mother and sisters to “find answers.”

Finally, around 7:30 p.m., Figueroa left the construction site and started

driving around in his car. He stopped at a nearby gas station and bought a six-pack

of beer, which he drank in an effort to “make the pain go away.” Figueroa continued

thinking “[a]bout all the things [Nunez] was telling [Figueroa] he was doing with

4
the female, but in reality that was [Figueroa’s] wife he was describing.” Eventually,

he decided to go to the neighborhood where he had grown up to purchase a gun.

The drive to his old neighborhood took Figueroa approximately one hour, so

it was around 8:30 p.m. when he purchased the gun. Figueroa repeatedly testified

that he did not have a plan to kill Nunez, but he wanted to make Nunez hurt, so he

decided to shoot Nunez in the genitals.

Figueroa drove to the apartment that he had been sharing with Nunez.

Although he had a key, he could not enter through the front door because Nunez had

dead-bolted the door. He could not enter through the sliding door on the back patio

because that door only opened from the inside, so Figueroa had to enter the

apartment through a window off the patio. Figueroa “really wanted to stop, but the

voices in [his] mind were telling [him] to just keep going.” He then consumed some

cocaine that was on Nunez’s kitchen counter and searched for Nunez in the

apartment. Nunez was not in his bedroom, but the shower was running, so Figueroa

assumed that Nunez was in the shower. Once inside the bathroom, Figueroa shot

twice in the direction of the shower. When he tried to shoot a third time, the gun

jammed.

Bullets struck Nunez in the chest and left hand, but he was able to get out of

the shower. Both men ran out of the apartment. Nunez made it to the parking lot,

where he collapsed, unclothed and bleeding. A resident of the apartment complex

5
called 911 at 9:11 p.m., and paramedics transported Nunez to the hospital. On the

way, Nunez was able to tell medical personnel that “his boss” shot him. Nunez went

into cardiac arrest several times at the hospital, and he passed away early on April

11, 2019.

After leaving Nunez’s apartment, Figueroa called Cabrera and told her that he

had tried to shoot Nunez. They met up at a local Wal-Mart, and Figueroa requested

that they drive to San Marcos with their children. They spent the night in a hotel near

San Marcos. The next day, they both learned that Nunez had died from his injuries.

At Cabrera’s request, Figueroa agreed to return to Houston, and he turned himself

in to police. He also turned over the clothes he had been wearing during the shooting,

as well as the gun he had purchased. During his custodial interview, Figueroa

admitted to shooting Nunez.

The jury found Figueroa guilty of the offense of murder. During the

punishment phase, Figueroa raised the special issue of sudden passion, arguing that

he caused Nunez’s death “under the immediate influence of sudden passion arising

from an adequate cause,” entitling him to a reduction of the offense from a first-

degree felony to a second-degree felony. In the punishment-phase charge, the trial

court submitted the sudden passion special issue to the jury. The charge also included

two instructions that informed the jury that it could not consider how the law of

parole might be applied to Figueroa or how much of his sentence he would have to

6
serve because such decisions were within the exclusive jurisdiction of parole

authorities.

The jury made a negative finding on the sudden passion special issue, finding

that Figueroa did not cause Nunez’s death “under the immediate influence of sudden

passion arising from an adequate cause.” The jury assessed Figueroa’s punishment

at thirty-seven years’ confinement. This appeal followed.

Sufficiency of the Evidence

In his first issue, Figueroa contends that legally and factually insufficient

evidence supports the jury’s negative finding on the sudden passion special issue.

A. Standard of Review and Governing Law

At the punishment phase of a murder trial, the defendant may raise whether

he caused the death under the immediate influence of sudden passion arising from

an adequate cause. TEX. PENAL CODE § 19.02(d); Beltran v. State, 472 S.W.3d 283,

293 (Tex. Crim. App. 2015) (“Sudden passion is a mitigating circumstance that is

relevant to determining the appropriate punishment of a defendant.”). If the

defendant proves this issue “in the affirmative by a preponderance of the evidence,”

the offense is reduced from a first-degree felony to a second-degree felony. TEX.

PENAL CODE § 19.02(d); Rankin v. State, 617 S.W.3d 169, 184 (Tex. App.—Houston

[1st Dist.] 2020, pet. ref’d); Moncivais v. State, 425 S.W.3d 403, 406 (Tex. App.—

Houston [1st Dist.] 2011, pet. ref’d).

7
“Sudden passion” means “passion directly caused by and arising out of

provocation by the individual killed . . . which passion arises at the time of the

offense and is not solely the result of former provocation.” TEX. PENAL CODE

§ 19.02(a)(2). “Adequate cause” is “cause that would commonly produce a degree

of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to

render the mind incapable of cool reflection.” Id. § 19.02(a)(1). Neither ordinary

anger nor fear alone raises an issue of sudden passion. Moncivais, 425 S.W.3d at

407. A defendant may not rely on a cause of his own making—such as precipitating

a confrontation—to support his argument that he acted out of sudden passion arising

from adequate cause. Smith v. State, 355 S.W.3d 138, 149 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d).

A defendant must prove that the killing occurred “while the passion still

existed and before there was reasonable opportunity for the passion to cool.”

Moncivais, 425 S.W.3d at 407; see McKinney v. State, 179 S.W.3d 565, 569 (Tex.

Crim. App. 2005); Herrera v. State, 513 S.W.3d 223, 228 (Tex. App.—San Antonio

2016, no pet.) (“Sudden passion requires the circumstances be such as to give rise to

an immediate influence of sudden passion.”) (internal quotations omitted).

“Anticipation of an event and preparation of a response indicates a defendant had

time to deliberate over an action and did not act under the immediate influence of

sudden passion.” Moncivais, 425 S.W.3d at 407. The “core concept” of the sudden

8
passion defense is that “a person’s mental state has rendered him incapable of

rational thought and collected action.” Swearingen v. State, 270 S.W.3d 804, 820

(Tex. App.—Austin 2008, pet. ref’d).

Because sudden passion is an issue on which the defendant bears the burden

of proof by a preponderance of the evidence, in reviewing the jury’s negative finding

on this issue, we apply the legal sufficiency standard of review used in civil cases. 2

Moncivais, 425 S.W.3d at 407; Smith, 355 S.W.3d at 147–48. We first examine the

record for any evidence that supports the jury’s negative finding on sudden passion

and ignore all evidence to the contrary. Moncivais, 425 S.W.3d at 407. If no evidence

supports the negative finding, we then examine the entire record to determine

whether the evidence establishes the sudden passion issue as a matter of law. Id. We

2
Ordinarily, in reviewing the sufficiency of the evidence to support a defendant’s
conviction, we apply the standard of review set out by the United States Supreme
Court in Jackson v. Virginia: we view the evidence in the light most favorable to
the verdict and determine whether any rational factfinder could have found the
essential elements of the offense beyond a reasonable doubt. See Matlock v. State,
392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing 443 U.S. 307, 319 (1979)).
This standard does not, however, apply to elements of an affirmative defense that
the defendant must prove by a preponderance of the evidence. Id. When reviewing
a jury’s rejection of an affirmative defense, we use the standards of review
traditionally used in civil cases, including reviewing a negative finding for factual
sufficiency. Id. This remains so even though the Court of Criminal Appeals has held
that we no longer apply a separate “factual sufficiency” standard when reviewing
the sufficiency of the evidence to support a conviction. See id. Although sudden
passion is a punishment issue, and not a traditional affirmative defense, because the
defendant bears the burden to establish sudden passion by a preponderance of the
evidence, it is analogous to an affirmative defense in the sufficiency of evidence
context. See Gaona v. State, 498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet.
ref’d).
9
defer to the factfinder’s determination of the weight and credibility of the testimony

and evidence admitted at trial. Id.

With respect to the factual sufficiency of the evidence, we consider all the

evidence neutrally to determine if the negative finding on special passion is so

against the great weight and preponderance of the evidence as to be manifestly

unjust. Id. at 408; Smith, 355 S.W.3d at 148. Again, we may not intrude on the

factfinder’s role as the sole judge of the weight and credibility of the witnesses’

testimony. Moncivais, 425 S.W.3d at 409; Smith, 355 S.W.3d at 148.

B. Whether Sufficient Evidence Supports the Jury’s Negative Finding on
Sudden Passion

1. Legal Sufficiency of the Evidence

With respect to his legal sufficiency challenge to the jury’s negative finding

on sudden passion, Figueroa argues that the jury heard evidence that he “was in a

constant state of emotional turmoil from the moment he learned of” his wife’s affair

with Nunez. Figueroa physically assaulted Nunez and fired him, and Figueroa’s

“emotional state did not improve” between the time of the assault and the time

Figueroa returned to the apartment he was temporarily sharing with Nunez. Figueroa

argues that, instead of hearing evidence that his “rage had subsided,” the jury heard

evidence of “his intensifying frustration as he attempted to contact his wife.” He

therefore argues that no evidence supports the conclusion that he was not acting

under the influence of sudden passion when he shot Nunez.

10
We disagree with Figueroa and conclude that some evidence supports the

jury’s negative finding on sudden passion. The jury heard evidence that almost

immediately after learning of the affair, Figueroa initiated a physical confrontation

with Nunez at the construction site, but it did not escalate beyond punching Nunez

several times. Instead, Figueroa was able to rein in his anger and feelings of betrayal

and order Nunez off the site, thus demonstrating that he was capable of “cool

reflection.” See TEX. PENAL CODE § 19.02(a)(1) (defining “adequate cause” as

“cause that would commonly produce a degree of anger, rage, resentment, or terror

in a person of ordinary temper, sufficient to render the mind incapable of cool

reflection”); Rankin, 617 S.W.3d at 185 (concluding that defendant was not

“incapable of a cool reflection period” in part because defendant defused argument

with complainant before later stabbing him).

Figueroa also had ample “time to deliberate over his actions.” See McKinney,

179 S.W.3d at 570. Over the course of several hours after the discovery of the affair,

he stayed at the construction site and tried to continue working, repeatedly attempted

to contact Cabrera and her family members, drove around the area of the site, and

drank a six-pack of beer before deciding to purchase a gun. Around this time,

approximately three hours after the discovery of the affair and the initial physical

confrontation, Figueroa developed the intention to hurt Nunez by shooting him in

the genitals. Figueroa thus anticipated a further confrontation with Nunez and

11
prepared for it by purchasing a weapon. See id. (concluding that defendant was not

entitled to jury instruction on sudden passion in part because defendant returned

home after verbal argument with his son, “sat down at his desk for a while and then

decided to retrieve his pistol,” indicating that he was “preparing himself to respond

to the altercation he was anticipating”); Moncivais, 425 S.W.3d at 408

(“Anticipation of and preparation for the fight constitutes some evidence that

Moncivais had time to deliberate regarding his actions.”).

Indeed, Figueroa did more than anticipate a further confrontation with Nunez:

he initiated the further confrontation by purchasing a gun, entering Nunez’s

apartment through a window, and shooting Nunez while he was in the shower.

Precipitating a confrontation cannot support an argument that a defendant acted out

of sudden passion arising from adequate cause. See Smith, 355 S.W.3d at 149; Nance

v. State, 807 S.W.2d 855, 861 (Tex. App.—Corpus Christi–Edinburg 1991, pet.

ref’d) (stating that charge on voluntary manslaughter—predecessor to sudden

passion special issue—was not required “when a defendant creates the

circumstances which instigate the inflaming of that defendant’s passions,

particularly when a defendant is an aggressor, the precipitator of a confrontation, or

[is] attempting to commit a crime when allegedly inflamed by another’s response”).

To establish the sudden passion defense, a defendant must prove that the

killing occurred “while the passion still existed and before there was reasonable

12
opportunity for the passion to cool.” Moncivais, 425 S.W.3d at 407. There was some

evidence in the record from which the jury could conclude that a “reasonable

opportunity” existed “for the passion to cool” and that Figueroa was no longer under

the immediate influence of sudden passion at the time he shot Nunez, more than

three hours after learning of Nunez and Cabrera’s affair. See id.; Herrera, 513

S.W.3d at 228 (“Sudden passion requires the circumstances be such as to give rise

to an immediate influence of sudden passion.”) (emphasis added).

We conclude that the record contains some evidence to support the jury’s

negative finding on sudden passion. See Moncivais, 425 S.W.3d at 407; Smith, 355

S.W.3d at 148. We need not address whether Figueroa proved sudden passion as a

matter of law, because that part of the analysis only applies in the absence of any

evidence to support the jury’s negative finding. See Moncivais, 425 S.W.3d at 408.

We hold that legally sufficient evidence supports the jury’s negative finding on

sudden passion. We therefore turn to whether factually sufficient evidence supports

the jury’s negative finding.

2. Factual Sufficiency of the Evidence

With respect to his factual sufficiency challenge, Figueroa argues that his

statements during his custodial interview and his testimony at trial provided

evidence that he “was so angry and miserable that he was unable to think clearly”

and was therefore incapable of cool reflection. He argues that the State did not offer

13
any contradictory evidence concerning his mental state, nor did the State argue that

Figueroa was not “emotionally disturbed” following his discovery of the affair.

Figueroa contends that the State—in arguing that the influence of the discovery was

not immediate because hours passed between the discovery of the affair and the

killing of Nunez—interprets the word “immediate” too narrowly and does not take

into account the possibility that Figueroa’s anger at Nunez was “rekindled” when he

saw Nunez in the apartment.

Figueroa testified that he was sad, angry, disappointed, and “broken” when he

learned that Nunez, whom he considered to be family, had been having an affair with

Cabrera. He repeatedly testified that he could not think clearly after this discovery

and his “mind was wandering” as he tried on numerous occasions to call Cabrera3

and he thought about what Cabrera and Nunez had done together. He felt

manipulated and betrayed by Nunez, who had encouraged Figueroa to have an affair

with a woman he met at a bar and then reported Figueroa’s infidelity to Cabrera,

leading to Figueroa and Cabrera’s separation.

After initially confronting Nunez and trying to continue working, Figueroa

bought a six-pack of beer at a gas station near the construction site because he “just

wanted to make the pain go away” and he did not want to keep thinking about Nunez

3
Cabrera testified that when she spoke to Figueroa after he learned of the affair, he
was crying and his emotional state was “different.” She agreed that “[i]t hurt him”
when she did not return further calls from him.
14
and Cabrera together. When Figueroa then decided to buy a gun, he “didn’t feel like

[himself],” and he “had many different thoughts in [his] mind, mainly about all the

things [Nunez] was telling [Figueroa] he was doing with a female, but all them things

he was doing to [Figueroa’s] wife.” After purchasing the gun, he “just kept driving”

and “was not really thinking.” He eventually realized that he “was already at

[Nunez’s] apartment.”

Figueroa also testified that he decided to go to Nunez’s apartment because he

“still wanted to find answers.” Figueroa was “sad and mad” at the time, “[b]ut more

than anything,” he felt “like a joke, because [Nunez] was telling [Figueroa]

something, but [Nunez] was doing—he was doing something else.” When he was

inside Nunez’s apartment, Figueroa testified that he “had the gun in [his] hand, but

[he] really wanted to stop, but the voices in [his] mind were telling [him] to just keep

going.” He decided to consume some cocaine that was on Nunez’s kitchen counter

to “[t]ry to get the strength to walk away.” Instead of walking away, however, he

searched the apartment for Nunez.

Figueroa stated that he did not have a plan as he searched Nunez’s apartment.

He also testified that while he did not want to kill Nunez, he did want to hurt Nunez

by shooting him in the genitals. Because the shower was running, Figueroa assumed

that Nunez was in the shower, and Figueroa fired the gun twice in that direction. The

15
gunshots hit Nunez, “so [Nunez] got out [of the shower] and tried to hold

[Figueroa].” Figueroa testified:

The bullet woke me up, and I was really scared. I wanted to leave, but
[Nunez] would hold me. And I pushed him and he fell. I dropped the
gun. I ran. But then I came back for the gun and then he went through
the front door and I went through the back door.

Figueroa testified that he regretted his actions, he wished he “could go back in time

and change many things,” and he missed Nunez and “wish[ed] he would come back.”

We conclude that even if the jury credited Figueroa’s testimony about the

emotional turmoil he experienced after learning of the affair, the jury’s negative

finding on sudden passion is not so against the great weight and preponderance of

the evidence that the finding is manifestly unjust. Figueroa’s testimony established

the timeline of events after he learned of the affair. Over the course of approximately

three-and-a-half hours, Figueroa: had a physical confrontation with Nunez at the

construction site, but managed not to escalate the confrontation beyond throwing

several punches; fired Nunez and ordered him to leave the site; continued to try to

work at the site but kept calling Cabrera and her family members; kept thinking

about what Nunez and Cabrera had done together; left the site around two hours after

the initial confrontation to drive around; purchased and drank a six-pack of beer;

decided to purchase a gun; drove for over an hour to his old neighborhood to

purchase the gun; decided to go back to Nunez’s apartment with the intent to shoot

Nunez in the genitals; consumed cocaine in an attempt to walk away from a further
16
confrontation; and shot Nunez while Nunez was taking a shower. Figueroa thus had

time to reflect upon what he had learned and decide upon a course of action. See

Swearingen, 270 S.W.3d at 820 (noting that “core concept” of sudden passion

defense is that “a person’s mental state has rendered him incapable of rational

thought and collected action”).

Figueroa argues that despite the passage of several hours between the

discovery of the affair and the shooting of Nunez, he acted under the influence of

sudden passion because his anger was “rekindled” upon seeing Nunez in his

apartment. However, Figueroa was the one who decided to go to Nunez’s apartment

several hours after he learned of the affair, physically assaulted Nunez, purchased a

gun, and decided that he wanted to hurt Nunez by shooting him in the genitals. See

Moncivais, 425 S.W.3d at 407 (“Anticipation of an event and preparation of a

response indicates a defendant had time to deliberate over an action and did not act

under the immediate influence of sudden passion.”).

After considering all the relevant evidence in a neutral light, we hold that

factually sufficient evidence supports the jury’s negative finding on the sudden

passion special issue. See id. at 408; Smith, 355 S.W.3d at 148. The jury’s negative

finding is not so against the great weight and preponderance of the evidence as to be

manifestly unjust. See Moncivais, 425 S.W.3d at 408.

We overrule Figueroa’s first issue.

17
Parole Instruction in Jury Charge

In his second issue, Figueroa contends that the trial court erred by including

surplus language in the punishment-phase jury charge concerning his parole

eligibility.

A. Standard of Review

Code of Criminal Procedure article 36.14 requires the trial court to deliver to

the jury “a written charge distinctly setting forth the law applicable to the case.” TEX.

CODE CRIM. PROC. art. 36.14; Mendez v. State, 545 S.W.3d 548, 551–52 (Tex. Crim.

App. 2018). When analyzing a claim of jury charge error, our first step is to

determine whether error exists. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim.

App. 2022); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If there is

error in the charge, we must then determine whether the erroneous charge harmed

the defendant. Alcoser, 663 S.W.3d 165; Ngo, 175 S.W.3d at 743.

Our standard of review for jury charge error depends on whether the defendant

timely objected to the jury instructions. Marshall v. State, 479 S.W.3d 840, 843 (Tex.

Crim. App. 2016); Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).

If the defendant timely objected, then we must reverse if the error caused “some

harm” to the defendant. Marshall, 479 S.W.3d at 843. However, if, as here, the

defendant did not timely object, we will reverse “only if the error was so egregious

and created such harm that the defendant did not have a fair and impartial trial.” Id.

18
Charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Id.;

Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). In making this

determination, we consider: (1) the entirety of the jury charge itself; (2) the state of

the evidence, including contested issues and the weight of probative evidence;

(3) counsel’s arguments; and (4) any other relevant information contained within the

trial record. Marshall, 479 S.W.3d at 843; Cosio, 353 S.W.3d at 777. A

determination of egregious harm is fact-specific and is made on a case-by-case basis.

Alcoser, 663 S.W.3d at 165; Marshall, 479 S.W.3d at 843. We examine the relevant

portions of the entire record to determine whether the defendant suffered actual

harm—as opposed to theoretical harm—due to the error. Marshall, 479 S.W.3d at

843; Cosio, 353 S.W.3d at 777.

B. Whether Trial Court Erroneously Included Parole Eligibility Language

Code of Criminal Procedure Article 37.07, section 4, requires the trial court,

during the punishment phase of the trial, to give certain jury instructions concerning

the law of parole. TEX. CODE CRIM. PROC. art. 37.07, § 4; Taylor v. State, 233 S.W.3d

356, 359 (Tex. Crim. App. 2007). In this case, the trial court was required to instruct

the jury as follows:

The length of time for which a defendant is imprisoned may be reduced
by the award of parole.

19
Under the law applicable in this case, if the defendant is sentenced to a
term of imprisonment, the defendant will not become eligible for parole
until the actual time served equals one-half of the sentence imposed or
30 years, whichever is less. If the defendant is sentenced to a term of
less than four years, the defendant must serve at least two years before
the defendant is eligible for parole. Eligibility for parole does not
guarantee that parole will be granted.
It cannot accurately be predicted how the parole law might be applied
to this defendant if sentenced to a term of imprisonment, because the
application of that law will depend on decisions made by parole
authorities.
You may consider the existence of the parole law. You are not to
consider the manner in which the parole law may be applied to this
particular defendant.

TEX. CODE CRIM. PROC. art. 37.07, § 4(a); see Luquis v. State, 72 S.W.3d 355, 363

(Tex. Crim. App. 2002) (“Article 37.07, section 4(a) sets out, verbatim, the words

that the trial judge is to use.”). It is undisputed that the trial court gave this instruction

verbatim to the jury in the punishment charge.

The trial court also included the following instruction in the punishment

charge:

You are not to discuss among yourselves how long the accused would
be required to serve the sentence that you impose. Such matters come
within the exclusive jurisdiction of the Board of Pardons and Paroles
division of the Texas Department of Criminal Justice and the Governor
of the State of Texas, and must not be considered by you.

Figueroa did not object to the inclusion of this instruction in the charge. On appeal,

he argues that inclusion of this instruction was erroneous because it deviated from

the statutorily prescribed language set out in Article 37.07, section 4(a), and was

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impermissible surplusage. He does not argue that this additional instruction

misstated the law concerning parole.

We disagree with Figueroa that the trial court erred when it included the

additional parole instruction in the punishment charge. Although this instruction was

unnecessary, given that the trial court appropriately and correctly gave the jury the

instruction required by Article 37.07, section 4(a), nothing contained in the

additional parole instruction is erroneous. The first sentence to the additional

instruction—“You are not to discuss among yourselves how long the accused would

be required to serve the sentence that you impose”—emphasizes the last sentence of

the Article 37.07, section 4(a) instruction, which informs the jury that it is not “to

consider the manner in which the parole law may be applied to this particular

defendant.” See TEX. CODE CRIM. PROC. art. 37.07, § 4(a).

Similarly, the second sentence of the additional instruction states that “[s]uch

matters come within the exclusive jurisdiction of the Board of Pardons and Paroles

division of the Texas Department of Criminal Justice and the Governor of the State

of Texas, and must not be considered by you.” Although it provides slightly more

detail concerning who makes parole decisions, this sentence essentially restates the

third paragraph of the Article 37.07, section 4(a) instruction, which informs the jury

that application of parole law to the defendant “cannot accurately be predicted”

because “the application of that law will depend on decisions made by parole

21
authorities.” See id. We conclude that although the additional parole instruction was

unnecessary, it was not erroneous to include this instruction in the punishment

charge.4

We overrule Figueroa’s second issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris
Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

4
We note that, as the State points out, courts have held that instructions similar to the
additional parole instruction in this case can be “curative” of other errors made in
parole instructions. See Barrueta v. State, No. 05-12-00639, 2013 WL 3929203, at
*5 (Tex. App.—Dallas July 26, 2013, pet. ref’d) (not designated for publication)
(stating that substantially similar instruction “did not misstate the law and was not
erroneous”); Grigsby v. State, 833 S.W.2d 573, 576–77 (Tex. App.—Dallas 1992,
pet. ref’d) (stating that courts “have regarded similar instructions as curative and
mitigating factors” and that “[t]his curative instruction discourages jurors from
imposing greater sentences”). Moreover, this additional instruction informed jurors
not to discuss how long Figueroa would be required to serve the sentence imposed
because such matters fall within the exclusive jurisdiction of parole authorities. In
the absence of evidence to the contrary, we generally presume that jurors follow the
trial court’s instructions. See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App.
2011); see also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)
(“Even if the [jury] note constitutes evidence the jury discussed parole at a
preliminary point, we presume they followed the court’s instructions and thereafter
did not consider it in reaching their verdict.”).
22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9402935. Public record. Not legal advice.