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Click here for the full text of this decision FACTS:Javier Edwuardo Villarreal was convicted by a jury for aggravated assault on his girlfriend by using a rolling pin, alleged to be a deadly weapon. See Texas Penal Code �22.02(a)(2). After the jury returned its guilty verdict and heard the evidence presented at the punishment phase, the trial court submitted to the jury a charge on punishment that omitted the mandatory parole instruction. After beginning its deliberations, the jury sent a note to the trial court that read as follows: “Is it possible to find out how many years he would actually serve compared to how many we sentence?” The trial court responded to the jury’s note as follows: “No. Such information is completely beyond our control. It is controlled entirely by the Board of Pardons and Paroles.” The record did not show that the trial court followed the required procedure under Texas Code of Criminal Procedure Article 36.27 of reading the jury’s note in open court and allowing Villarreal or his attorney the opportunity to object to the response. While Villarreal did not specifically complain of the trial court’s failure to comply with Article 36.27, he did urge two related points of error. First, he contended that the trial court erred by completely omitting the mandatory parole instruction from its charge to the jury. Second, he complained that the trial court’s response did not comply with �4 of Article 37.07 and thus caused egregious harm. HOLDING:Reversed and remanded for a new trial on punishment. Article 37.07 provides a mandatory parole instruction, which reads in part: “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.” The court first considered the original omission of the parole instruction in its charge to the jury. It also discussed the probable effect of the parole law instruction on juries: “Most courts have agreed that the parole law instruction chiefly favors the State, and an attorney could reasonably decide not to object to its omission.” Noting the severity of Villarreal’s assault on his girlfriend as a consideration supporting the jury’s assessment of the maximum sentence, the court reiterated its position on the effect of the parole law instruction and concluded that, based on the facts of the case, the omission of the parole instruction did not constitute egregious harm. The court then considered the noncomplying parole instruction in response to the jury note. When it became apparent the jury was concerned with application of the parole law, the court stated that the trial court was required to give the mandatory parole instruction pursuant to Article 37.07. The trial court’s deviation from Article 37.07 under these circumstances caused egregious harm, the court held. The severity of the assault against Villarreal’s girlfriend does lend some support to the conclusion that the erroneous instruction did not cause egregious harm, the court stated. However, the court did not conclude that this consideration overcame the other considerations weighing in favor of the conclusion that the submission of the noncomplying parole instruction caused egregious harm. The court then summarized its reasoning and conclusion: “Because the jury obviously had been considering the impact of the parole law on Villarreal’s punishment, because the record fails to demonstrate that the trial court followed the proper procedural steps in responding to this note and then failed to submit the mandatory parole law instruction in accordance with Article 37.07, and because the jury assessed the maximum punishment, we conclude the trial court’s submission of the non-complying instruction constitutes egregious harm.” OPINION:Ross, J.; Morriss, C.J., and Ross and Carter, J.J.

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