The opinion
WOODLEY, Judge
(dissenting).
The motion for new trial alleged that during the jury’s *343 deliberation on the punishment to be assessed, a statement was made by one or more of the jurors “that if the defendant received a sentence of five years in the penitentiary he would be eligible for parole and his freedom at the end of one year and three months.”
In support of this allegation the affidavits of two jurors were attached.
The affidavit of the Juror Carter stated that during the jury’s deliberation “it was mentioned by one or two jurors that the defendant would become eligible for a parole in one year and three months if given a five year sentence.”
The second affidavit was that of the Juror Johnson which stated that during such deliberation “there was a discussion among the jurors as to the length of time that the defendant would have to serve in the penitentiary if given a five year sentence. This discussion involved whether he would have to serve one year, or a year and a half or some comparable time.”
If there be jury misconduct which entitles appellant to a reversal of his conviction, it must be found in the allegations of his motion for new trial supported by affidavit of the jurors Carter or Johnson. I find none.
We have here simply a discussion of the commonly known fact that the punishment assessed by the jury is the maximum time he may be required to serve; that prisoners are given credit for time for good behavior and overtime work, and that a prisoner is eligible for parole after serving a certain portion of the time assessed against him.
One or more jurors mentioned a year and three months as the time in which appellant could become eligible for parole. This goes nothing like as far as the discussion in Montello v. State, 160 Texas Cr. Rep. 98 , 267 S.W. 2d 557 , regarding a life sentence, wherein it was said that the average served was eight years before a pardon was granted.
There is a vast difference in one becoming eligible for parole and in serving a sentence. Here there is nothing in the affidavits or testimony to suggest that any juror was led to believe that a five year sentence would be served in a year and three months.
The majority opinion points out that under Art. 781d *344 V.A.C.C.P. a prisoner under a five year sentence becomes eligible for parole when he has served one year and eight months.
This of course does not mean calendar time. The majority opinion overlooks credit which a prisoner is entitled to receive for overtime (Art. 6166x and 6166x-l V.C.S.) ; for good conduct (Art. 61841 and Art. 6166v V.C.S.) ; extra meritorious conduct (Art. 6166v V.C.S.).
It is not at all unlikely that the juror who suggested that appellant could become eligible for parole in one year and three months was more correct in his calculations than those who suggested that it would take him about a year and a half to become eligible.
The trial court did not abuse his discretion in overruling the motion for new trial.