Thomas v. State

• Decision Date: 17 May 2001
• Citation: 48 S.W.3d 373
• Parties: (Tex.App.-Fort Worth 2001) BILLY JAMES THOMAS, JR., APPELLANT A/K/A BILLY JAMES THOMAS v. THE STATE OF TEXAS, STATE NO. 2-00-050-CR
• Court: Texas Court of Appeals

Page 373

48 S.W.3d 373 (Tex.App.-Fort Worth 2001)

BILLY JAMES THOMAS, JR., APPELLANT A/K/A BILLY JAMES THOMAS v. THE STATE OF TEXAS, STATE

NO. 2-00-050-CR

COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH

May 17, 2001.

PANEL A: CAYCE, C.J.; DAY and DAUPHINOT, JJ.

OPINION ON REHEARING

DAY, Justice.

Upon the court's own motion we have reconsidered our prior opinion. We withdraw our opinion and judgment of February 8, 2001, and substitute the following.

Appellant Billy James Thomas, Jr. pleaded guilty to the offense of aggravated assault causing serious bodily injury. After finding that Appellant used a deadly weapon and because of a prior felony, the jury assessed an enhanced punishment of seventy-five years' confinement. In a single point on appeal, Appellant contends the trial court erred in including an instruction regarding parole and good conduct credit in the jury charge when Appellant was not eligible to receive good conduct credit for his offense. We affirm.

I. BACKGROUND

Appellant and Katy Neely dated for over a year. After Katy ended their relationship, Appellant was upset and threatened to kill himself. After the breakup, Appellant continued to pursue Katy. On one occasion, Appellant was sitting in Katy's car when she got off of work at Blockbuster Video. Appellant and Katy talked about their relationship, and Katy drove Appellant home. Appellant then asked Katy if she would come by and see him after she got off work the next day. Katy agreed.

The following day, Appellant called Katy's house to make sure Katy was still going to come by and see him after work. However, Appellant went to Katy's place of employment and was waiting for Katy when she got off work that afternoon. Appellant told Katy that he had rented a motel room and said that there were some things he wanted to show her. Katy drove Appellant to the motel and went with him to the room. Once in the room, Appellant showed Katy a photo album with pictures of the two of them and a note Katy had written him during the relationship. He asked Katy if those things meant anything to her. Katy said that they did "at one time, but they mean something different now."

Katy said that she had to go home, at which point, Appellant grabbed a razor blade and slit Katy's throat from behind. Katy fell to the floor. Appellant got on top of Katy, covering her mouth and holding her arm to the ground, and asked if Katy would lie on the bed with him. Katy nodded, and Appellant let her up. Appellant then slit his own wrists and threw the razor blade to the ground. Katy grabbed the razor blade and left the room. At the same time, Jeffrey Swanson was walking toward his truck from his room when he noticed Katy walking toward him with blood under her chin. Swanson and Katy went to his room where he called 9-1-1. While Katy was waiting for Swanson to call 9-1-1, she observed Appellant get into her car and drive off. Appellant was later apprehended slumped over the steering wheel of Katy's car.

II. JURY CHARGE ERROR

In his sole point on appeal, Appellant complains that the trial court's charge to the jury concerning the possibility of parole and good conduct time contained an incorrect statement of the law in violation of article 36.14 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp. 2001). The trial court's charge to the jury included the following instruction:

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...