Justin Tremane Simon v. the State of Texas

In the
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                   No. 06-25-00093-CR



         JUSTIN TREMANE SIMON, Appellant

                            V.

           THE STATE OF TEXAS, Appellee




          On Appeal from the 4th District Court
                 Rusk County, Texas
              Trial Court No. CR24-286




      Before Stevens, C.J., van Cleef and Rambin, JJ.
       Memorandum Opinion by Justice van Cleef
                                         MEMORANDUM OPINION

            A Rusk County jury found Justin Tremane Simon guilty of aggravated robbery and

assessed a sentence of seventy years’ imprisonment.                              See TEX. PENAL CODE ANN.

§ 29.03(a)(3)(A). Simon appeals, arguing that (1) the State failed to prove Simon’s identity as

the perpetrator of the aggravated robbery beyond a reasonable doubt and (2) the trial court

committed reversible error by submitting a jury instruction in the punishment charge advising

jurors that Simon’s parole eligibility could be hastened by the award of good-conduct time. We

affirm the judgment below.

I.          The Evidence at Trial

            The evidence shows that a tall, masked African American man, wearing a yellow

reflective construction vest and a dark-colored hoodie, entered the Strong-Hurt Pharmacy shortly

after 7 a.m. on the morning of September 16, 2024, demanding money and drugs. The robber

brandished what appeared to be a handgun1 and aimed it at Tommy Strong, the 78-year-old

owner of the pharmacy, threatening to kill him and two other employees if they did not comply

with his demands. Fearing for their lives, Strong and the employees complied and handed over

ten stock bottles of controlled substances (hydrocodone, promethazine, and alprazolam). In

addition to the pills, the robber also took the cellphones belonging to Strong and the two

employees. The robber then fled the store, running in the direction of South Mill Street.

            When police arrived at the scene, Strong’s wife tracked her husband’s stolen cellphone to

the 100 block of South Mill Street, a neighborhood a few blocks away from the pharmacy. The


1
    The robber had stuffed a black sock with stucco, or building material, and shaped it to look like a gun.
                                                              2
cellphone pinged at various addresses on South Mill Street before becoming disabled.

Testimony at trial demonstrates that the cellphone became disabled at either 108 or 110 South

Mill Street, which are neighboring houses.

       With that information, officers searched several houses in the 100 block, including 108

South Mill Street. Some of the homes were vacant, while others were occupied by people who

did not fit the description of the robber. Aware that a person matching the robber’s description

resided at 110 South Mill Street, police obtained a search warrant and prepared to enter the

residence. The home at 110 South Mill Street was owned by Simon’s mother. When the police

arrived at her home, Simon’s mother called Simon and handed the phone to an officer standing

outside. When the officer asked about his whereabouts, Simon stated that he was out of town.

However, upon entering the residence, police found Simon and detained him. Approximately

two hours had passed between the time of the alleged offense and Simon’s arrest.

       While the police did not locate the stolen cellphones or the construction vest, they did

find ten stock bottles containing hydrocodone, promethazine, and alprazolam pills under Simon’s

mattress. At trial, the Strong-Hurt Pharmacy manager testified that stock bottles are delivered

directly to pharmacies from the manufacturer and are never given to the general public. The

manager was also able to match eight of the ten bottles found under Simon’s mattress to the

Pharmacy’s inventory list, confirming that they were taken during the robbery. Along with the

pills, a dark-colored hoodie, which was damp as if it had just been worn, was found in Simon’s

closet. The police checked the interior walls of the closet to ensure that a water leak had not



                                               3
caused the hoodie to become damp. Simon was then booked into the county jail, where a

hydrocodone pill was found in his pants pocket.

       After hearing that evidence, the jury convicted Simon of aggravated robbery.

II.    Sufficiency of the Evidence

       In his first point of error, Simon challenges the sufficiency of the State’s evidence to

prove beyond a reasonable doubt that he was guilty of aggravated robbery.

       A.      Standard of Review

       “The due process guarantee of the Fourteenth Amendment requires that a conviction be

supported by legally sufficient evidence.” Braughton v. State, 569 S.W.3d 592, 607 (Tex. Crim.

App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 315–16 (1979)). “In evaluating legal

sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to

determine whether any rational jury could have found the essential elements of the offense

beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana

2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)). “We

examine legal sufficiency under the direction of the Brooks opinion, while giving deference to

the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19; Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).

       “In our review, we consider ‘events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

                                                  4
design to do the prohibited act.’” Id. (quoting Hooper, 214 S.W.3d at 13). “It is not required

that each fact ‘point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction.’”

Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct evidence are

equally probative in establishing the guilt of a defendant, and guilt can be established by

circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.

App. 2015); Hooper, 214 S.W.3d at 13).

       “Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge.” Id. at 298 (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets

out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).

A person commits aggravated robbery if, during the commission of robbery, he:

       (1)     causes serious bodily injury to another;

       (2)     uses or exhibits a deadly weapon; or

       (3)    causes bodily injury to another person or threatens or places another
       person in fear of imminent bodily injury or death, if the other person is:

               (A)    65 years of age or older; or

               (B)    a disabled person.”




                                                5
TEX. PENAL CODE ANN. § 29.03(a).2 Here, the State alleged that

         on or about the 16th day of September, 2024 . . . [Simon] did then and there
         while in the course of committing theft of property and with intent to obtain or
         maintain control of the property, intentionally and knowingly threaten or place
         Tommy Strong, a person [sixty-five] years of age or older, in fear of imminent
         bodily injury or death[.]

         B.      Discussion

         Simon urges the Court to find that his conviction was unsupported by legally-sufficient

evidence. Highlighting the lack of physical evidence tying him to the scene of the robbery,

Simon characterizes the case against him as resting solely on the discovery of the pills in his

room. As such, he contends that the State presented only a “mere modicum” of evidence

identifying him as the robber. That does not accurately reflect all of the evidence presented at

trial.

         “The State may prove a defendant’s identity and criminal culpability by either direct or

circumstantial evidence, coupled with all reasonable inferences from that evidence.” Jenkins v.

State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Ingerson v. State, 559 S.W.3d 501,

509 (Tex. Crim. App. 2018) (“Identity may be proven by . . . circumstantial evidence[] or by

reasonable inferences from the evidence.”). When reviewing circumstantial evidence, “[e]ach

fact need not point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper, 214 S.W.3d at 13. Courts have highlighted certain circumstances that allow a jury to

2
 Aggravated robbery incorporates the elements of the lesser offense of robbery. TEX. PENAL CODE ANN. §§ 29.02,
29.03(a). A person commits a robbery “if, in the course of committing a theft . . . and with intent to obtain or
maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” TEX. PENAL
CODE ANN. § 29.02(a).
                                                         6
draw an inference of guilt, such as when a defendant is found in possession of recently stolen

property without explanation. Rollerson v. State, 227 S.W.3d 718, 725 n.18 (Tex. Crim. App.

2007). Lying to police officers also shows a “consciousness of guilt” and may be considered as

circumstantial evidence of the same. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000)

(holding that making false statements to cover up a crime is evidence indicating “consciousness

of guilt” and is admissible to prove commission of offense); Torres v. State, 794 S.W.2d 596,

598 (Tex. App.—Austin 1990, no pet.) (holding that conduct after crime indicating defendant’s

“‘consciousness of guilt’ is . . . one of the strongest kinds of evidence of guilt”).

        Taken together, the incriminating circumstances in this case amount to more than a “mere

modicum” of evidence tying Simon to the robbery. Simon, who matched the general description

of the robber, was found (1) in the same residence where the stolen cellphone’s last known

location was consistent with being present; (2) in possession of hydrocodone, promethazine, and

alprazolam pills that were uniquely attributable to the Pharmacy; (3) within hours of the robbery;

and (4) after having lied to the police about his whereabouts. Moreover, the police found an

article of clothing matching the robber’s description in Simon’s closet, which was damp as if it

had just been worn, and a hydrocodone pill in his pants pocket.

        We find that the evidence was sufficient to support a rational inference that Simon

perpetrated the aggravated robbery that occurred on September 16, 2024. We overrule Simon’s

first point of error.




                                                   7
III.   Charge Error

       In his second issue, Simon contends that the trial court committed reversible error by

submitting a jury instruction advising jurors that Simon’s parole eligibility could be hastened by

the award of good-conduct time and then inviting the jury to consider the existence of good-

conduct time when assessing Simon’s sentence.

       A.       Standard of Review

       “We employ a two-step process in our review of alleged jury-charge error.” Murrieta v.

State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determine whether error occurred and

then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32)).

       “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” Id. (alteration in original) (quoting TEX. CODE CRIM. PROC.

ANN. art. 36.13). “A trial court must submit a charge setting forth the ‘law applicable to the

case.’” Id. (quoting Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d)

(quoting TEX. CODE CRIM. PROC. ANN. art. 36.14)).

       The purpose of the jury charge . . . is to inform the jury of the applicable law and
       guide them in its application. It is not the function of the charge merely to avoid
       misleading or confusing the jury: it is the function of the charge to lead and
       prevent confusion.

Id. (quoting Lee, 415 S.W.3d at 917 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.

App. 2007))).
                                                8
       B.      The Jury Charge Incorrectly Referenced Good-Conduct Time

       The jury charge at the punishment phase read in relevant part as follows:

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

       Under the law applicable in this case, the defendant, if sentenced to a term of
       imprisonment, may earn early parole eligibility 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 prisoner.

       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 plus any good conduct time earned equals one-half of the sentence
       imposed or [thirty] years, whichever is less. Eligibility for parole does not
       guarantee that parole will be granted.

       It cannot accurately be predicted how the parole law and good conduct time might
       be applied to this defendant if sentenced to a term of imprisonment, because the
       application of these laws will depend on decisions made by prison and parole
       authorities.

       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.

(Emphasis added).

       However, under Texas law, Simon’s parole eligibility must be considered “without

consideration of good conduct time.” See TEX. GOV’T CODE ANN. § 508.145(d)(1)(A), (d)(2)

(Supp.). Further, Simon’s charged offense—aggravated robbery—is listed in Article 42A.054(a)

of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42A.054(a)(11)

(Supp.). As such, the trial court was required to give the instruction set forth in Article 37.07,

                                                9
Section 4(a) of the Texas Code of Criminal Procedure, which omits all references to good-

conduct time.3 Thus, the charge incorrectly advised the jury that Simon could earn early parole

eligibility through the award of good-conduct time and that the existence of good-conduct time

could be considered.

            Failure to give this “mandatory” charge is error. Cormier v. State, 955 S.W.2d 161, 164

(Tex. App.—Austin 1997, no pet.) (explaining that “failure to give this mandatory instruction is

charge error subject to Almanza[4] analysis”); Sanders v. State, 448 S.W.3d 546, 548 (Tex.

App.—San Antonio 2014, no pet.). Accordingly, this Court must now assess whether the error

was harmful.



3
    Article 37.07, Section 4(a) provides:

            In the penalty phase of the trial of a felony case in which the punishment phase is to be assessed
            by the jury rather than the court, if the offense of which the jury has found the defendant guilty is
            . . . an offense listed in Article 42A.054(a), . . . the court shall charge the jury in writing as
            follows:

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

            “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
            sentenced imposed or [thirty] 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. ANN. art. 37.07, § 4(a) (Supp.).
4
 See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in
Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).
                                                             10
       C.      The Erroneous Charge Did Not Result in Egregious Harm.

       “The level of harm necessary to require reversal due to jury charge error is dependent

upon whether the appellant properly objected to the error.” Murrieta, 578 S.W.3d at 555 (citing

Abdnor, 871 S.W.2d at 732).

       Here, because [Simon] did not object to the charge, we will not reverse [the
       judgment] unless the record shows the error resulted in egregious harm, Ngo v.
       State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State,
       686 S.W.2d [at 171] (op. on reh’g)), such that he did not receive a fair and
       impartial trial.

Id. (citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—

Texarkana 2008, no pet.)).

       “Jury-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. (quoting Stuhler v.

State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). “In making this determination, we review

‘the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant

information in the record as a whole.’” Id. (quoting Villarreal v. State, 205 S.W.3d 103, 106

(Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing Almanza, 686 S.W.2d at 171)).

“Direct evidence of harm is not required to establish egregious harm.” Id. (citing Hutch v. State,

922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

       Thus, when conducting the harm analysis, we review the following factors: (1) the

charge itself, “(2) the state of the evidence, including contested issues and [the] weight of [the]

probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed

by the . . . record of the trial as a whole.” Villarreal, 453 S.W.3d at 433.

                                                 11
       Under the first factor, we review the punishment charge in its entirety. As discussed

above, the jury charge contained erroneous instructions. However, even though the charge

instructed the jury that it could consider the existence of good conduct time, it then admonished

the jury that it was not to consider the extent to which “good[-]conduct time may be awarded to

or forfeited” by Simon. The Texas Court of Criminal Appeals has recognized that such curative

instructions can, in combination with other factors, cure error. See Igo v. State, 210 S.W.3d 645,

647 (Tex. Crim. App. 2006).

       Moreover, egregious harm requires actual harm, and the record does not show that the

jury changed the assessed punishment based on any future and potential good-conduct time.

Absent such a showing, we must presume that the jury followed the jury instructions. See Taylor

v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011); Murrieta, 578 S.W.3d at 556. Therefore,

the first factor weighs against a finding of egregious harm.

       The second factor requires a consideration of the evidence at trial. In the guilt-innocence

phase, the State presented sufficient evidence to support a conviction. As for the punishment

phase, the punishment range for the offense of aggravated robbery is either imprisonment for life

or for a term of not less than five years but no more than ninety-nine years. See TEX. PENAL

CODE ANN. § 12.32(a). In this case, the State sought a life sentence, and the jury assessed a

sentence of seventy years’ imprisonment. While such a sentence is on the higher end of the

punishment range for the convicted offense, the State presented compelling evidence in the

punishment phase to support that sentence. See Igo, 210 S.W.3d at 647. Specifically, the State

put on evidence of Simon’s lengthy criminal history. Simon had four prior felony convictions,

                                                12
which included possession of a controlled substance, escape while arrested/confined, evading

arrest with a vehicle, and theft from a person. With regard to the felony theft, Simon had been

indicted for aggravated robbery, in which he had both threatened serious bodily injury and used a

firearm. As such, the evidence at trial did not weigh in favor of finding egregious harm.

       The third factor examines the arguments of counsel. Although the State did not reference

“good[-]conduct time” in its arguments, the defense did—both through witness testimony and in

closing argument. In particular, Simon presented testimony from a retired parole officer, Stanley

Gaines, who testified to the mechanics of the parole system as follows:

               A.     When I looked at the statute of the aggravated cases, you have to
       do at least half of the sentence. Now, when I say you have to do half, it’s not
       really half. Because you have things what you call is “good time.” Good time
       can -- a person was convicted for ten years here. All right. Because he has good
       behavior on the unit where he’s convicted, that good time can come into play
       bringing down that ten years.

               ....

               Q.     But isn’t it true that even if a person reaches half of their time --

               A.     They have to be released.

               Q.     But it’s not guaranteed?

               A.     It’s not guaranteed. Nothing is guaranteed

               ....

               Q.      Okay. So if someone says, like, hey, if you give him [thirty] years,
       within that half year (sic) he can come up for parole, it’s no guarantee, is there?

               A.     There’s no guarantee.

       Simon’s counsel further stated in closing arguments at the punishment phase that:



                                                 13
       [The State is] asking for life. And you know it’s aggravated. And you know even
       though if you give him life, [Simon] probably doesn’t come up for parole until
       [thirty-five] years. And you heard Mr. Gaines state even if a person has good-
       time credit, it’s up to the parole board to make that decision, because somebody
       can write in and say, no, we don’t want [Simon] out. [Simon] can spend the rest
       of his time in prison for life with [the State] asking for a life sentence.

              Is this a serious charge? Yes.

              . . . . But to walk away and just . . . throw away [Simon’s] life for life,
       when the evidence only showed the pills at his house, I beg to differ.

               . . . . If you give him 25 years, I have a feeling somebody is going to write
       in every time he comes up for parole to keep him in. . . . [Simon] will do his entire
       time.

While Gaines’s testimony incorrectly conflated “good time” with Simon’s parole eligibility, the

proposition that Simon’s counsel elicited from Gaines—that even when a defendant “come[s] up

for parole,” release is not guaranteed—is a correct statement of the law. The record, therefore,

reflects a defense strategy aimed at discouraging parole speculation and urging the jury to

assume that Simon would serve the entire assessed sentence. In effect, Simon’s counsel echoed

the charge’s admonition that jurors were not to consider how parole law might apply to Simon

personally. See Hogan v. State, 440 S.W.3d 211, 218 (Tex. App.—Houston [14th Dist.] 2013,

pet. ref’d) (defense’s closing argument mentioning parole did not weigh in favor of egregious

harm finding, as it was only mentioned “to explain that the jury is not to consider the manner in

which parole law might apply to appellant”). Under these circumstances, the arguments of

counsel do not weigh in favor of egregious harm.

       The fourth factor considers any other circumstances in the record.               One such

circumstance courts often look at is whether the jury made any inquiry about good-conduct time


                                                14
or sought clarification regarding the charge. See Alaniz v. State, 648 S.W.3d 657, 664 (Tex.

App.—Eastland 2022, no pet.); Murrieta, 578 S.W.3d at 556. The record in this case reveals no

jury notes or any other indication that the jury sought further clarification regarding good-

conduct time or parole. Thus, nothing suggests that the jury was influenced or misled by the

instructions in the punishment charge.

       We conclude that all four factors weigh against a finding of egregious harm and overrule

Simon’s second issue on appeal.

IV.    Conclusion

       Accordingly, we affirm the trial court’s judgment.




                                            Charles van Cleef
                                            Justice

Date Submitted:       February 13, 2026
Date Decided:         April 27, 2026

Do Not Publish




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