Wilson, Herbert Ray ( 2015 )

PD-0568-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 18, 2015 Transmitted 6/17/2015 3:38:05 PM
Accepted 6/18/2015 2:21:12 PM
NO. PD-0568-15 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN
NO. 14-14-00015-CR
IN THE COURT OF APPEALS FOR THE
FOURTEENTH DISTRICT OF TEXAS
AT HOUSTON
HERBERT RAY WILSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Danny K. Easterling
Easterling & Easterling, PC
Texas Bar No. 06362100
1018 Preston, 6,h Floor
Houston, TX 77002
(713)228-4441
E-mail: eaepc@swbell.net
Counsel for Appellant
ORAL ARGUMENT REQUESTED.
STATEMENT REGARDING ORAL ARGUMENT
The appellant requests oral argument because important constitutional issues
are presented.
LIST OF INTERESTED PARTIES
Herbert Ray Wilson Appellant, Defendant in trial court
Danny K. Easterling Appellant's counsel at trial and on
1018 Preston, Suite 600 appeal
Houston, TX 77002
Devon Anderson Harris County District Attorney
1201 Franklin, Suite 600
Houston, TX 77002
Bridget Holloway Assistant District Attorney
Hon. Ruben Guerrero Judge, 174th district Court
Harris County, Texas
TABLE OF CONTENTS
Statement Regarding Oral Argument I
List of Interested Parties I
List of Authorities iv
Statement of the Case 1
Statement of Procedural History 3
Questions Presented 3
(1) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did
not violate U.S. CONST. Amend. VIII?
(2) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did
not violate TEX. CONST. Art. I, §13?
(3) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did
not violate the due process clause ofU.S. CONST. Amend. XIV?
(4) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did
not violate the due course of law provision ofTEX. CONST. Art.
I, §19?
Argument 4
Reasons for Review of Question One 4
A. Core Eighth Amendment Principles 4
u
(1) Evolving Standards 5
(2) The Importance of Having a Punishment Factfinder
Consider Mitigating Factors 6
B. From Roper to Graham to Miller 1
C. The Flawed Texas Response to Miller 8
D. The Illusory Benefit of Parole in Forty Years 10
Reasons for Review of Question Two 11
Reasons for Review of Questions Three and Four 13
A. The Due Process "Right to Be Heard" 13
B. The Texas Counterpart to Due Process 13
C. The Court of Appeals' Error 15
Prayer for Relief 17
Certificate of Compliance 17
Certificate of Service 18
Appendix: Court of Appeals' Memorandum Opinion and Judgment
in
LIST OF AUTHORITIES
Cases Page
Armstrong v Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965) 14
Bell v. Burson, 402 U.S. 535,91 S. Ct. 1586,29 L. Ed. 2d 90 (1970) 14-16
California v. Brown, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987) 6
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997) 12
Cleveland Board ofEducation v. Loudermill, 470 U.S. 532,
105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) 16
Eddings v. Oklahoma, 455 U.S. 104,102 S. Ct. 869, 71 L. Ed. 2d 1(1982) 6
Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587,
298S.W.2d93,96(1957) 12
Fleming v. State, 376 S.W.3d 854 (Tex. App. - Fort Worth 2012) 15
Graham v. Florida, 560 U.S. _, 130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010) 5, 7-8, 10, 16
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
115L.Ed.2d836(1991) 8
Heitman v. State, 815 S.W.2d681 (Tex. Crim. App. 1991) 11
Joint AntiFascist Comm. v. McGrath, 341 U.S. 123, 71 S. Ct. 624,
95 L. Ed. 2d 817 (1951 )(Frankfurter, J., concurring) 13
Lewis v. State, 448 S.W.3d 138 (Tex. App. - Houston [14th Dist.]
2014, pet. refd) 3,9,15
Lewis andNolley v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014),
cert, denied sub nom. Nolley v. Texas, U.S. , 135 S. Ct. 256,
190 L. Ed. 2d 190 (2014) 3,9
iv
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) 6
Mathews v. Eldridge, 424 U.S. 319,96 S.Ct. 893,47 L.Ed.2d 18 (1976) 13
Miller v. Alabama, _ U.S. _, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012) 1-2,5,
11-13,16
Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988) 6
Morter v. State, 551 S.W.2d 715 (Tex. Crim. App. 1977) 12
Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975) 11
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) 5,7-8
Skipper v. South Carolina, 476 U.S. 1,106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) 6
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1971) 14-16
State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1993) 12
Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590,2 L.Ed.2d 630 (1958) 5
Wilson v. State, 348 S.W.3d 132 (Tex. App. - Houston
[14th Dist] 2011, pet. ref d), vacated and remanded,
Wilson v. Texas, _ U.S. _, 133 S. Ct. 108, 184 L. Ed. 2d 5 (2012) 2
Wilson v. State, 2012 WL 6484718 (Tex. App. -
Houston [14th Dist.], No. 14-09-01040-CR, December 13,2012) 2
Constitutional Provisions. Statutes, and Rules
TEX. CONST. Art. I, §13 2,11
TEX. CONST. Art. I, §19 3,15
TEX. GOVT. CODE §311.021 (2) 12
TEX. PENAL CODE § 12.31 2
U.S. CONST. Amend. VIII 2-8,11
U.S. CONST. Amend. XIV 3, 13-16
VI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW the appellant, Herbert Ray Wilson (hereinafter "Wilson"),
through the undersigned court-appointed counsel, and respectfully requests that this
Courtgrant discretionary reviewof the decision inthis cause by the CourtofAppeals
for the Fourteenth District of Texas, for reasons set forth as follows.
STATEMENT OF THE CASE
Wilson was indicted for Capital Murder, in violation of TEX. PENAL CODE
§19.03(CR II-6).1 A jury found Wilson guilty of Capital Murder). Because Wilson
was seventeen at the time of the offense, the only punishment available was
confinement for life in the Texas Department of Criminal Justice, Correctional
Institutions Division, without the possibility of parole. The district court judge
immediately assessed that punishment without conducting any evidentiary hearing on
punishment. Wilson appealed, alleging inter alia that the mandatory, and thus
automatic, sentence of life without parole violated U.S. CONST. Amend. VIII. The
Court ofAppeals affirmed the judgment, and this Court refused discretionary review.
Wilson v. State, 348 S.W.3d 132 (Tex. App. - Houston [14th Dist.] 2011, pet. refd).
Following the decision in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 183
L. Ed. 2d 407 (2012)(which had not been available at the time this Court refused
discretionary review), the Supreme Court granted a writ of certiorari, vacated the
1 The clerk's record, containing court documents, is designated "CR" herein. The court
reporter's record is designated "RR" with Roman numerals for volume numbers.
sentence, and remanded for further proceedings. Wilson v. Texas, U.S. , 133
S. Ct. 108,184 L. Ed. 2d 5 (2012). The Court of Appeals then remanded this cause to
the district court for a new punishment determination. Wilson v. State, 2012 WL
6484718 (Tex. App. - Houston [14lh Dist.], No. 14-09-01040-CR, December
13,2012).
While this cause was pending in the state district court, the Texas Legislature
addressed the need for revision ofTEX. PENAL CODE § 12.31 in the wake ofMiller
v. Alabama. In the regular session a bill promoted by the governor proposed that
there be a mandatory (and thus automatic) sentence of life imprisonment, with the
possibility of parole after forty years. A competing proposal to provide for a range
of punishment was defeated in committee. Time ran out in the general session, and
the governor made the automatic life with parole proposal one of the items to be
included in a called special session. This time the proposal passed, and the new
statute was made applicable to all cases still pending in various stages of direct
appeal.
Meanwhile Wilson argued in the district court that an automatic sentence of
life, with the possibility of parole, still presented an Eighth Amendment problem,
given that there was no mechanism for consideration of mitigating evidence, for
individualized sentencing, or even to preserve evidence for future use in parole
proceedings. These same problems also violated TEX. CONST. Art. I, §13, Wilson
2
argued. Wilson further argued that the denial of a hearing violated the due process
clause ofU.S. CONST. Amend. XIV and the counterpart guarantee of"due course of
law" under TEX. CONST. Art. I, §19. The district court judge at least let Wilson
memorialize someofthe possible mitigating evidence ina briefhearing,butthejudge
was helpless to give such evidence any weight. As the statute required, the district
court judge to assess punishment at life imprisonment, with no possibility of parole
until at least forty years had elapsed. Wilson gave notice of appeal.
The Court of Appeals affirmed the judgment and sentence in a memorandum
opinion. The Court of Appeals considered the result to be dictated by this Court's
decision in Lewis andNolley v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014), cert,
deniedsubnom. Nolleyv. Texas, _\J.S._, 135 S. Ct. 256,190 L. Ed. 2d 190(2014)
and by the Court ofAppeals' decision in Lewis v. State, 448 S.W.3d 138 (Tex. App.
- Houston [14,h Dist.] 2014, pet. refd).2
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals rendered its decision and delivered its memorandum
opinion on April 16,2015. No motion for rehearing was filed. This Court extended
the time for filing a petition for discretionary review until June 17,2015.
QUESTIONS FOR REVIEW
2 A petition for writ of certiorari was filed by Jor'dan Lewis in May, 2015. It is pending
as Number 1407-14 in the Supreme Court.
This petition presents four questions for review:
(1) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligility in forty years, did not
violate U.S. CONST. Amend. VIII?
(2) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate TEX. CONST. Art. I, §13?
(3) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate the due process clause of U.S. CONST. Amend. XIV?
(4) Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate the due course of law provision of TEX. CONST. Art. I, §19?
ARGUMENT
REASONS FOR REVIEW OF QUESTION ONE
Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate U.S. CONST. Amend. VIII?
A. Core Eighth Amendment Principles
The Eighth Amendment to the United States Constitution states:
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
The "cruel and unusual punishments" clause applies to state court cases through the
due process clause of U.S. CONST. Amend. XIV. Interpretation of the Eighth
Amendment has been guided by some key principles developed in case law, including
two which are particularly relevant here: (1) the "evolving standards" doctrine, and
(2) the importance of having a punishment factfinder consider mitigating evidence.
(1) Evolving Standards
Application ofthe Eighth Amendment is guided by "the evolving standards of
decency which mark the progress ofa maturing society." Trop v. Dulles, 356 U.S. 86,
101,78 S.Ct. 590,598,2 L.Ed.2d 596 (1958). Three concurringjustices in Graham
v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) observed:
Society changes. Knowledge accumulates. We learn, sometimes, from
our mistakes. Punishments that did not seem cruel and unusual at one
time may, in the light of reason and experience, be found cruel and
unusual at a later time ...
Graham demonstrated that evolving standards may be expressed in the
expansion of concepts from one application to another. In Graham a body of
scientific knowledge concerning how juveniles differed from adults was extended
from a case where a juvenile was given the death penalty, i.e. Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), to a case where a sentence of life
imprisonment without parole was assessed. That same body of scholarship then
contributed to an extension of Graham, a non-homicide case, to a homicide case in
Miller v. Alabama. The next stepwhichWilson advocates is reallyjust an application
of the lessons of Miller.
(2) The Importance of Having a Punishment
Factfinder Consider Mitigating Factors
The Supreme Court has recognized, in the context ofdeath-penalty cases, that
a jury must have a vehicle for consideration of mitigating circumstances. Smith v.
Spisak, 558 U.S. 139, 130 S. Ct. 676, 175 L. Ed. 2d 595 (2010), considering the
application of Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384
(1988) to an Ohio death-penalty case, commented:
The rule the Court set forth in Mills is based on two well-established
principles. First, the Constitution forbids imposition ofthe death penalty
if the sentencing judge or jury is "precluded from considering, as a
mitigating factor, any aspect of a defendant's character and any
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." 486 U.S., at 374, 108 S. Ct. 1860 [quoting
Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 71 L. Ed. 2d 1
(1982), in turn quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct.
2954, 57 L. Ed. 2d 973 (1978) (plurality opinion)]. Second, the
sentencing judge or jury "may not refuse to consider or be precluded
from considering 'any relevant mitigating evidence.'" Mills, 486 U.S.,
at 374-3 75,108 S. Ct. 1860 [quoting Skipper v. South Carolina, 476 U.S.
1,4, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), in turn quoting Eddings,
supra, at \\4, 102 S. Ct. 869.]
The concept of individualized mitigating evidence was articulated in Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989):
Underlying Lockett and Eddingsis the principle that punishment should
be directly related to the personal culpability of the criminal defendant.
If the sentencer is to make an individualized assessment of the
appropriateness of the death penalty, "evidence about the defendant's
background and character is relevant because ofthe belief, long held by
society, that defendants who commit criminal acts that are attributable
to a disadvantaged background, or to emotional and mental problems,
may be less culpable than defendants who have no such excuse."
California v. Brown, 479 U.S. 538, 547, 107 S. Ct. 837, 93 L. Ed. 2d 934
(1987).
A characteristic of a mandatory sentencing scheme, which allows only one
predetermined punishment following conviction for a particular crime, is that the
punishment becomes automatic. Neither the judge nor the jury can consider further
mitigating evidence. The judge in Wilson's case on remand actually did let Wilson
make a briefrecord showing that there was potential mitigating evidence, but with or
without such evidence, the judge could do nothing except order a life sentence.
B. From Roper to Graham to Miller
Roper v. Simmons, using a "categorical" analysis, held that assessment of the
death penalty for an offender who committed a homicide when he or she was a
juvenile violated the Eighth Amendment. The categorical approach in Roper rested
largely on the conclusion that there were mitigating factors so consistently
characteristic of youth that it could be said, across the board, that juveniles were
inherently less "morally culpable" than adults, at least to the extent that the death
penalty would be an excessive punishment. See Roper, 543 U.S. at 569-570, 125
S.Ct. at 1195. Graham took the empirical concepts recognized in Roperand applied
them to a case where the death penalty did not apply, using a categorical analysis.
In Miller there was a significant shift in analysis, moving beyond a categorical
analysis to an approach whereby individualized mitigating factors also were to be
7
considered. Miller stated that life without parole, as applied to a juvenile,
"implicate^] two strands of precedent reflecting our concern with proportionate
punishment." The first "strand" consisted ofcases, such as Roper and Graham, which
"adopted categorical bans on sentencing practices based on mismatches between the
culpability of a class of offenders and the severity of the penalty." The second
"strand" consisted of "cases [where] we have prohibited mandatory imposition of
capital punishment, requiring that sentencing authorities consider the characteristics
of a defendant and the details of his offense before sentencing him to death." That
"strand" consists of cases such as Lockett, Eddings, Penry, and Mills. It was "the
confluence of these two lines of precedent," Miller declared, that "leads to the
conclusion that mandatory life-without-parole sentences for juveniles violate the
Eighth Amendment."
This "confluence" was a major change in the Supreme Court's thinking. It
introduced the idea that consideration of mitigating factors relating to an individual
defendant was an Eighth Amendment requirement in a case where the death penalty
was not assessed (and could not be assessed, due to Roper). Miller departed from
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991),
wherein the Supreme Court declined to extend the Eighth Amendment right to
considerationofmitigatingevidenceto non-death penaltycases.The majorityopinion
in Miller found that Harmelin was distinguishable because Harmelin did not deal
8
with a child.
C. The Flawed Texas Response to Miller
As noted earlier, the Texas Legislature responded to Miller only by jettisoning
the preclusion of parole. This Court held in Lewis and Nolley that the new statute
applied to defendants in the appellate pipeline when the new statute was enacted.
Noting that Miller concerned a life sentence without the possibility of parole, this
Court rejected the view that an automatic, mandatory life sentence which made parole
a possibility only in the distant future was incompatible with Miller.
When the Court ofAppeals again took up Wilson's case, it looked to Lewis and
Nolley and to its decision in Lewis v. State, supra (Mem. Opin., pp. 3-4). The Court
of Appeals construed Miller as only barred a juvenile tried as an adult from being
sentenced to life without parole. Like this Court in Lewis andNolley, the Court of
Appeals was simply following the current statute, which is the real source of the
problem.
A focus on whether or not parole becomes available, and when that occurs,
misses the key point of the second strand of Miller. Under the current Texas law,
there is no mechanism whereby a judge or jury can hear mitigating evidence -
whether the kind of universal concerns discussed in Roper or individualized
mitigating evidence - and then take it into account to arrive at a punishment, chosen
from a punishment range, which is properly tailored to the individual defendant.
9
D. The Illusory Benefit of Parole in Forty Years
There is less to the availability ofparole, forty or more years in the future, than
meets the eye. Graham, 130 S. Ct. at 2032, observed:
Life in prison without the possibility of parole gives no chance for
fulfillment outside prison walls, no chance for reconciliation with
society, no hope. Maturity can lead to that considered reflection which
is the foundation for remorse, renewal, and rehabilitation. A young
person who knows that he or she has no chance to leave prison before
life's end has little incentive to become a responsible individual.
Graham continued:
A State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some realistic
opportunity to obtain release before the end of that term.
Id. at 2034. Other portions of Graham indicated that a juvenile must have a chance
to "demonstrate growth and maturity." Id. at 2029-2030.
In light of the foregoing concerns in Graham, a parole review in the distant
future is little better than no parole at all. There is no guarantee of parole on the first
review, the second review, or on any review before an inmate dies. Furthermore,
what type of "fulfillment outside prison walls" would be possible for someone who
had spent his entire adult life, up to that point, in prison?
Worst ofall, however, is the fact that the mere possibility of parole, forty years
inthe future, may be meaningless. Much of the evidence which might help an inmate
obtain parole will not be available forthe parole board's consideration because it was
10
not gathered at the time of trial. Examples of evidence which might no longer be
available in the distant future could include testimony from family members, friends,
teachers, coaches, ministers, and others who know a defendant. And school and
mental health records. Forty years after the trial, the likelihood of being able to
recreate such evidence as part of the parole process is very poor. Only the utilization
of a punishment hearing, at the time of trial, would make a difference.
REASONS FOR REVIEW OF QUESTION TWO
Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate TEX. CONST. Art. I, §13?
The punishment assessed also violated the Eighth Amendment's Texas
constitutional counterpart, namely TEX. CONST. Art. I, §13. The Texas Constitution
may provide greater protection than the United States Constitution. Heitman v. State,
815 S.W.2d 681 (Tex. Crim. App. 1991), citing Oregon v. Hass, 420 U.S. 714, 95
S. Ct. 1215,43 L. Ed. 2d 570 (1975), pointed out that "a state is free as a matter of its
own law to impose greater restrictions on police activity than those the Supreme
Court holds to be necessary upon federal constitutional standards."/*/, at 683. What
was said in Heitman about "police" (executive department) action also applies to
legislation.
The literal text of TEX. CONST. Art. I, §13 provides a reason for
recommending relief under Texas law, even if relief were not justified under the
11
Eighth Amendment. This article reads in pertinent part: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel or unusual punishment inflicted...."
Thus the Texas Constitution refers to "cruel or unusual" punishment, rather than
"cruel and unusual" as used in the Eighth Amendment. The use of"or" in the Texas
Constitution means a sentence may be unconstitutional if it is either cruel or unusual.
The Court of Appeals cited Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim.
App. 1997) as establishing that this Court had never found the textual
differencebetween the two constitutions to be significant (Mem. Opin., pp. 4-5). This
Court can do so now, however, by looking to statutory law concerning principles of
construction for guidance. A provision of the "Code Construction Act," found in
TEX. GOVT. CODE §311.021(2), states that: "In enacting a statute, it is presumed
that... the entire statute is intended to be effective." Furthermore, in State v. Hardy,
963 S.W.2d 516, 520 (Tex. Crim. App. 1993), this Court stated:
We generally presume that every word in a statute has been used for a
purpose and that each word, phrase, clause, and sentence should be
given effect if reasonably possible. Morter v. State, 551 S.W.2d 715,
718 (Tex. Crim. App. 1977), quoting Eddins-Walcher Butane Co. v.
Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957).
Every word of the Texas Constitution - even the simple word "or" - merits the same
respect as the words of a statute.
Most persons would believe it is "cruel" if imposition of a life sentence on a
juvenile occurred without any consideration of either the factors common to all
12
teenagers, or without any consideration of particular mitigating circumstances. A
mandatory, automatic punishment also is unusual. Texas law has only three
situations with such fixed punishments. Thus there is a sound textual basis in the
Texas Constitution for striking down the mandatory sentence.
REASONS FOR REVIEW OF QUESTIONS THREE AND FOUR
Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate the due process clause of U.S. CONST. Amend. XIV?
Did the Court of Appeals err in holding that the mandatory and
automatic life sentence, with parole eligibility in forty years, did not
violate the due course of law provision ofTEX. CONST. Art. I, §19?
The last two questions can be considered together.
A. The "Due Process Right to Be Heard"
While the Eighth Amendment was the focus in Miller, an alternative reason for
not applying the amended Texas statute can be found in the due process clause of
U.S. CONST. Amend. XIV. The Supreme Court has long recognized that, even in
civil matters where only property rights (not personal liberty) are involved, due
process requires a fair opportunity for a party to be heard. Mathews v. Eldridge, 424
U.S. 319, 96 S.Ct. 893,47 L.Ed.2d 18 (1976) stated:
The "right to be heard before being condemned to suffer grievous loss
ofany kind, even though it may not involve the stigma and hardships of
a criminal conviction, is a principle basic to our society." Joint Anti-
Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S. Ct. 624, 646, 95
L. Ed. 2d 817 (1951 )(Frankfurter, J., concurring). The fundamental
requirement of due process is the opportunity to be heard "at a
13
meaningful time and in a meaningful manner."Armstrong v Manzo, 380
U.S. 545, 552, 85 S. Ct. 1187, 1191, 14 L. Ed. 2d 62 (1965).
Mathews implies that "the stigma and hardships of a criminal conviction" would
present an even more compelling reason for assuring a "right to be heard."
The due-process requirement of a fair opportunity to be heard is particularly
applicable with respect to statutes with mandatory provisions. In Stanleyv. Illinois,
405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1971) and Bell v. Burson, 402 U.S.
535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1970), the Court held that there had to be some
mechanism whereby evidence which could justify an exception to a mandatory
regulatory provision could be presented and considered.
InStanleyan unwed father was denied an opportunity to dispute the application
of an Illinois statute which automatically made the children of unwed parents wards
ofthe state upon the death oftheir mother. That amounted to a statutory presumption
that Stanley was an unfit parent, regardless of what facts Stanley might have
provided. The Supreme Court held that due process required that Stanley be given
a hearing on the factual question ofhis fitness for a parent. The Texas sentencing law
similarly rests on a presumption that mitigating facts do not matter.
In Bell a licensed but uninsured driver in Georgia had been denied an
opportunity to contest the suspension of his license, based on a statute which made
suspension automatic for uninsured motorists after an accident, regardless ofwho was
14
at fault, or to what degree. The Supreme Court, drawing upon earlier case law,
declared that a driver was entitled to a hearing which was "meaningful" and
"appropriate to the nature of the case." 402 U.S. at 541-542.
B. The Texas Counterpart to Due Process
The Texas constitutional counterpart of Fourteenth Amendment due process
is the "due course of the law" provision in TEX. CONST. Art. I, §19. That section
provides: "No citizen of this State shall be deprived of life, liberty, property,
privileges, or immunities, or in any manner disfranchised, except by the due course
of the law of the land." Again, the wording is a little bit different, as the Texas
Constitution guarantees "the due course of the law of the land."
In Lewis, supra, the Court ofAppeals concluded that the Texas constitutional
protection is coextensive with that of the Fourteenth Amendment. Fleming v. State,
376 S.W.3d 854, 857 (Tex. App. - Fort Worth 2012) stated that "this court and the
majority ofTexas courts ofappeals" held that view. Accordingly, the finding ofdue-
process violations in Stanley and Bell are persuasive, though not mandatory, authority
for the conclusion that a mandatory statute which provides no "meaningful
opportunity" for consideration of individual mitigating circumstances would violate
Art. I, §19.
C. The Court of Appeals' Error
The Court ofAppeals echoed its earlier conclusion in Lewis, supra that Stanley
15
and Bell were distinguishable (Mem. Opin., pp. 4-5). If anything, the distinction
between civil or administrative proceedings, on the one hand, and a Capital Murder
case, on the other, cuts in favor of Wilson. In the civil realm, the scope of the "right
to be heard" focuses on whether a "pre-deprivation" hearing is required or whether
a "post-deprivation" hearing suffices. See Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 105 s.cT. 1487, 84 L. Ed. 2d 494 (1985). If the right at
issue is personal freedom, confinement in prison definitely is a "deprivation." A
punishment hearing at trial would be a "pre-deprivation" review, while a parole
hearing almost four decades later clearly is "post-deprivation."
The position taken in Stanley and Bell, based on the Fourteenth Amendment,
dovetails with the statements in Grahamand Miller, based on the Eighth Amendment,
about the need for an effective mechanism for presentation and consideration of
mitigating evidence. This is an instance in which the various constitutional rights,
like a team of strong horses, should pull together.
16
PRAYER FOR RELIEF
Wherefore the appellant prays that discretionary review be granted as to all
questions presented.
Respectfully submitted,
/s/ Danny K. Easterling
Danny K. Easterling
Easterling & Easterling, PC
Texas Bar No. 06362100
1018 Preston, 6lh Floor
Houston, TX 77002
Tel.: (713)228-4441
E-mail: eaepc@swbell.net
Counsel for Appellant
CERTIFICATE OF COMPLIANCE
I certify that this petition was prepared using Wordperfect with fourteen-point
font, and twelve-point font for footnotes, in Times New Roman typeface. Omitting
the portions not included for the word limit, this petition contains 3410 words.
Isi Dannv K. Easterling
Danny K. Easterling
17
CERTIFICATE OF SERVICE
I certify that copies of this petition have be en served on counsel for the State
at the following addresses on June 17,2015:
Harris County District Attorney's Office Hon. Lisa McMinn
Appellate Division State Prosecuting Attorney
Attention: Bridget Holloway P.O. Box 12405
1201 Franklin, Suite 600 Austin, TX 78711
Houston, TX 77002
/s/ Dannv K. Easterling
Danny K. Easterling
18
Affirmed and Memorandum Opinion filed April 16, 2015.
In The
iffnurtEentlj (ftnurt of Appeals
NO. 14-14-00015-CR
HERBERT RAY WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1133069
MEMORANDUM OPINION
Appellant Herbert Ray Wilson was convicted of capital murder and
sentenced to life in prison with the possibility of parole. He challenges his sentence
on the ground that the denial of an individualized sentencing hearing violates the
United States and Texas Constitutions. We affirm.
Factual and Procedural Background
Appellant was convicted of capital murder and sentenced to life in prison
without the possibility of parole. On original submission, appellant argued that (1)
his confession was involuntary, and (2) a mandatory sentence of life without the
possibility of parole violated the Eighth Amendment because he was a juvenile at
the time of the offense. This court affirmed appellant's conviction and sentence.
Wilson v. State, 348 S.W.3d 32, 44 (Tex. App.—Houston [14th Dist.] 2011, pet.
refd). On petition for writ of certiorari, the United States Supreme Court vacated
the judgment and remanded the case for further consideration in light of Miller v.
Alabama, 567 U.S. —, 132 S. Ct. 2455 (2012). Wilson v. Texas, — U.S. —, 133 S.
Ct. 108, 108 (2012). In view of Miller, this court remanded the case to the trial
court for a new punishment hearing. Wilson v. State, No. 14-09-01040-CR, 2012
WL 6484718, at *2 (Tex. App.—Houston [14th Dist.] Dec. 13, 2012, no pet.) (not
designated for publication). While the case was on remand, the legislature
amended Texas Penal Code section 12.31(a) to read as follows:
(a) An individual adjudged guilty of a capital felony in a case in
which the state seeks the death penalty shall be punished by
imprisonment in the Texas Department of Criminal Justice for life
without parole or by death. An individual adjudged guilty of a capital
felony in a case in which the state does not seek the death penalty
shall be punished by imprisonment in the Texas Department of
Criminal Justice for:
(1) life, if the individual committed the offense when younger than
18 years of age; or
(2) life without parole, if the individual committed the offense
when 18 years of age or older.
Tex. Penal Code Ann. § 12.31(a) (West Supp. 2014).' On December 12, 2013, the
1The 2013 Session Laws amending this section in response to Miller v. Alabama include
a savings clause making it applicable to cases pending and on appeal when the provision went
2
trial court sentenced appellant to confinement in the Institutional Division of the
Texas Department of Criminal Justice for life with the possibility of parole in 40
years. See Tex. Gov't Code Ann. § 508.145(b) (West Supp. 2014). Appellant
timely appealed.
Analysis
In four issues, appellant contends that Texas Penal Code section 12.31(a)(1)
violates both the United States and Texas Constitutions because it does not provide
for individualized sentencing hearings. We consider each issue in turn.
A. The denial of an individualized sentencing hearing did not violate the
Eighth Amendment.
In his first issue, appellant claims that under the Eighth Amendment, a
juvenile offender is entitled to an individualized sentencing hearing before being
assessed a mandatory sentence of life imprisonment with the possibility of parole.
Under Miller, a sentencing scheme for juvenile offenders that mandates life in
prison without the possibility of parole violates the Eighth Amendment. 132 S. Ct.
at 2469. Noting that Miller did not forbid mandatory sentencing schemes per se,
the Court of Criminal Appeals refused to extend the holding in Miller to situations
identical to the one presented here: a mandatory sentence for a juvenile offender of
life in prison with the possibility of parole. Lewis v. State, 428 S.W.3d 860, 863
(Tex. Crim. App. 2014); see Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim.
App. 2014) (per curiam); Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.—
Houston [14th Dist.] 2014, pet. refd). The court held that juvenile offenders
sentenced to life imprisonment with the possibility of parole are not entitled to
into effect on July 22, 2013. Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3, 2013 Tex. Gen.
Laws 5020, 5020-21; see Lewis v. State, 428 S.W.3d 860, 863 n.6 (Tex. Crim. App. 2014).
individualized sentencing hearings. Lewis, 428 S.W.3d at 864. We are bound in
criminal cases to follow decisions of the Court of Criminal Appeals. Lewis, 448
S.W.3d at 146. Appellant's first issue is overruled
B. The denial of an individualized sentencing hearing did not violate the
Due Process Clause.
In his second issue, appellant claims that under the Due Process Clause, a
juvenile sentenced to life with the possibility of parole is entitled to an
individualized sentencing hearing. A number of Texas Courts of Appeals,
including this one, have determined mandatory sentencing statutes generally do not
violate due process. Id. at 147; see e.g., Laird v. State, 933 S.W.2d 707, 715 (Tex.
App.—Houston [14th Dist.] 1996, pet. refd) (mandatory life sentence for capital
murder did not violate due process); Cardona v. State, 768 S.W.2d 823, 827 (Tex.
App.—Houston [14th Dist.] 1989, no pet.) (mandatory sentence for delivery of
cocaine did not violate due process). Because appellant offers no reason for
deviating from this line of cases, we overrule his second issue.
C. The denial of an individualized sentencing hearing did not violate the
"cruel or unusual punishment" prohibition of article I section 13 of the
Texas Constitution.
In his third issue, appellant claims that under the "cruel or unusual
punishment" prohibition of article I section 13 of the Texas Constitution, a juvenile
offender is entitled to an individualized sentencing hearing before being assessed a
mandatory sentence of life imprisonment with the possibility of parole. See Tex.
Const, art. I, § 13. Appellant asserts that rights under article I section 13 of the
Texas Constitution should be interpreted more broadly than rights under the Eighth
Amendment. In support of this proposition, appellant notes that article I section 13
prohibits "cruel or unusual punishment" while the Eighth Amendment prohibits
"cruel and unusual punishment." The Court of Criminal Appeals has rejected the
distinction appellant proposes. See Cantu v. State, 939 S.W.2d 627, 639 (Tex.
Crim. App. 1997). Therefore, an analysis of this issue under the Texas Constitution
is identical to an analysis under the United States Constitution. As we have
previously determined that appellant is not entitled to an individualized sentencing
hearing under the Eight Amendment, we overrule his third issue.
D. The denial of an individualized sentencing hearing did not violate article
I section 19's "due course of law" guarantee.
In his fourth issue, appellant claims that under Texas Constitution article I
section 19's "due course of law" guarantee, a juvenile sentenced to life with the
possibility of parole is entitled to an individualized sentencing hearing. We have
already concluded that the denial of an individualized hearing did not violate
appellant's due process rights under the Fourteenth Amendment. Texas courts
consistently have found no distinction in this context between the rights afforded
by the "due course of law" clause of article I section 19 and those afforded by the
Due Process Clause of the Fourteenth Amendment. See Lewis, 448 S.W.3d at 147.
Appellant offers no discernable reason for finding a distinction in this case.
Accordingly, we overrule this issue.
Conclusion
Having overruled each of appellant's issues on appeal, we affirm the trial
court's judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
April 16,2015
JUDGMENT
®l|c Jffnurteentlj Cnurt ai Appeals
HERBERT RAY WILSON, Appellant
NO. 14-14-00015-CR V.
THE STATE OF TEXAS, Appellee
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order this decision certified below for observance.