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Bui v. State

The Texas Code of Criminal Procedure Article 37.07 '4(a) reference to good conduct time does not violate state due course of law and federal due process protections when applied to defendants whose actual time in prison is affected by section 508.149(a) of the Texas Government Code.

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EN BANC OPINION

A jury found appellant, Phat Van Bui, guilty of aggravated robbery and assessed punishment at 15 years in prison with a $10,000 fine. Appellant brings five points of error and challenges the effectiveness of his trial counsel, the factual sufficiency of the evidence to support the jury’s verdict, and the admission of an extraneous offense over his objection. He further challenges the constitutionality of the parole charge to the jury, required by article 37.07 section 4(a) of the Texas Code of Criminal Procedure, as applied to criminal defendants whose actual time in prison is affected by section 508.149(a) of the Texas Government Code.

This Court has previously held that the article 37.07 section 4(a) reference to good conduct time violates state due course of law and federal due process protections when applied to defendants, like appellant, “who are not eligible for it.” Bradley v. State, 45 S.W.3d 221 (Tex. App.-Houston [1st Dist.] 2001, pet. filed); Jimenez v. State, 992 S.W.2d 633 (Tex. App.-Houston [1st Dist.] 1999) (“Jimenez I”), aff’d on other grounds, 32 S.W.3d 233 (Tex. Crim. App. 2000) (“Jimenez II”) (affirming harmless error analysis, without deciding whether statute was unconstitutional as applied).

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