Terrell Delone Maxwell v. State ( 2015 )


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  •                                                                                  ACCEPTED
    03-14-00586-CR
    7174343
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    9/30/2015 4:24:26 PM
    JEFFREY D. KYLE
    CLERK
    NO. 03-14-00586-CR
    IN THE COURT OF APPEALS
    THIRD DISTRICT                   FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS                 AUSTIN, TEXAS
    9/30/2015 4:24:26 PM
    TERRELL MAXWELL,               JEFFREY D. KYLE
    APPELLANT                         Clerk
    VS.
    THE STATE OF TEXAS,
    APPELLEE
    APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
    TRAVIS COUNTY, TEXAS
    CAUSE NUMBER D-1-DC-08-300490
    HON. DAVID CRAIN, PRESIDING
    STATE’S BRIEF
    ROSEMARY LEHMBERG
    DISTRICT ATTORNEY
    TRAVIS COUNTY, TEXAS
    M. SCOTT TALIAFERRO
    TEXAS BAR NO. 00785584
    ASSISTANT DISTRICT ATTORNEY
    DIRECTOR, APPELLATE DIVISION
    DISTRICT ATTORNEY’S OFFICE
    P.O. BOX 1748
    AUSTIN, TEXAS 78767
    PHONE: 512.854.3626 FAX: 512.854.4810
    EMAIL: scott.taliaferro@traviscountytx.gov
    AND AppellateTCDA@traviscountytx.gov
    THE STATE CONDITIONALLY REQUESTS ORAL ARGUMENT
    i
    TABLE OF CONTENTS
    TABLE OF CONTENTS....................................................................................... ii
    TABLE OF AUTHORITIES ................................................................................ iii
    STATEMENT REGARDING ORAL ARGUMENT ............................................. v
    STATEMENT OF THE CASE .............................................................................. v
    STATEMENT OF FACTS .................................................................................... 3
    SUMMARY OF THE ARGUMENTS................................................................... 4
    THE STATE’S REPLY TO THE FIRST POINT OF ERROR............................... 5
    THE PUNISHMENT SCHEME UNDERLYING THE APPELLANT ’S LIFE
    SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT............................... 5
    1.      Nature of the appellant’s claim .................................................... 5
    2.      The applicable statutory scheme .................................................. 7
    a.   The 2005 version of the statute .................................................... 7
    b.   The 2013 version of the statute .................................................... 8
    c.   It is not clear which version of the statute was applied on
    remand......................................................................................... 9
    3.      Standard governing appellate review ..........................................12
    4.      The mandatory nature of the punishment scheme does not
    render it unconstitutional as applied to the appellant...................13
    5.      Miller should be applied only to sentences that literally
    preclude parole ...........................................................................17
    a.   By its terms, Miller merely applies to sentences of life
    without parole.............................................................................18
    b.   To extend Miller, this Court would be required to assess the
    probability of parole, not merely its possibility...........................19
    c.   Assessing the probability of parole is a speculative
    undertaking that should not be performed by this Court..............22
    6.      If the Court does perform a probability analysis, it should
    find that the appellant’s sentence is not a de facto sentence
    of life without parole ..................................................................28
    7.      Conclusion..................................................................................31
    PRAYER ..............................................................................................................32
    CERTIFICATE OF COMPLIANCE.....................................................................32
    CERTIFICATE OF SERVICE..............................................................................33
    ii
    TABLE OF AUTHORITIES
    Cases
    Andrade v. State, 
    700 S.W.2d 585
    (Tex. Crim. App. 1985) (Teague, J., concurring)
    ..........................................................................................................................22
    Bear Cloud v. State, 
    2014 WY 113
    , 
    334 P.3d 132
    (2014) ...............................19, 24
    Boneshirt v. United States, No. CIV 13-3008-RAL, 
    2014 U.S. Dist. LEXIS 161922
      (D.S.D. Nov. 19, 2014)......................................................................................30
    Bunch v. Smith, 
    685 F.3d 546
    (6th Cir. 2012) .......................................................19
    Commonwealth v. Batts, 
    620 Pa. 115
    , 
    66 A.3d 286
    (Pa. 2013)..............................19
    Commonwealth v. Brown, 
    466 Mass. 676
    , 
    1 N.E.3d 259
    (Mass. 2013) .................19
    Ellmaker v. State, 
    329 P.3d 1253
    (Kan. App. 2014) (not designated for publication)
    ....................................................................................................................29, 30
    Ex parte Granviel, 
    561 S.W.2d 503
    (Tex. Crim. App. 1978) ....................13, 26, 31
    Ex parte Maxwell, 
    424 S.W.3d 66
    (Tex. Crim. App. 2014)......................ix, 3, 9, 11
    Ex parte Ragston, 
    402 S.W.3d 472
    (Tex. App.—Houston [14th Dist.] 2013) .......12
    Graham v. Florida, 
    560 U.S. 48
    , 
    130 S. Ct. 2011
    , 
    176 L. Ed. 2d 825
    (2010).passim
    Hankins v. State, 
    132 S.W.3d 380
    (Tex. Crim. App. 2004) ...................................26
    Henry v. State, 
    82 So. 3d 1084
    (Fla. App. 2012) ....................................................19
    Henry v. State, No. 05-14-00197-CR, 2015 Tex. App. LEXIS 7151 (Tex. App.—
    Dallas July 10, 2015) (not designated for publication).......................................16
    LeBlanc v. Mathena, 
    2015 U.S. Dist. LEXIS 86090
    (E.D. Va. July 1, 2015) ........24
    Lewis v. State, 
    428 S.W.3d 860
    (Tex. Crim. App. 2014) ................................passim
    Lewis v. State, 
    448 S.W.3d 138
    (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
    ..........................................................................................................................15
    Leza v. State, 
    351 S.W.3d 344
    (Tex. Crim. App. 2011).........................................23
    Miller v. Alabama, 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012).......................passim
    Ouk v. State, 
    847 N.W.2d 698
    (Minn. 2014) ...................................................19, 30
    People v. Caballero, 
    55 Cal. 4th 262
    , 
    145 Cal. Rptr. 3d 286
    , 
    282 P.3d 291
    (2012)
    ....................................................................................................................23, 31
    People v. Mendez, 
    188 Cal. App. 4th 47
    (Cal. App. 2010) ....................................23
    People v. Perez, 
    214 Cal. App. 4th 49
    , 
    154 Cal. Rptr. 3d 114
    (Cal. App. 2013)...22,
    30
    Roper v. Simmons, 
    543 U.S. 551
    , 
    125 S. Ct. 1183
    , 
    161 L. Ed. 2d 1
    (2005) .......6, 22
    Santikos v. State, 
    836 S.W.2d 631
    (Tex. Crim. App. 1992)...................................12
    State ex rel. Lykos v. Fine, 
    330 S.W.3d 904
    (Tex. Crim. App. 2011) ....................13
    State v. Kersh, 
    127 S.W.3d 775
    , 777 (Tex. Crim. App. 2004) ...............................26
    State v. Null, 
    836 N.W.2d 41
    (Iowa 2013) ......................................................22, 24
    State v. Ragland, 
    836 N.W.2d 107
    (Iowa 2013) ....................................................23
    State v. Rosseau, 
    396 S.W.3d 550
    (Tex. Crim. App. 2013) ...................................12
    iii
    State v. Vang, 
    847 N.W.2d 248
    (Minn. 2014) .................................................18, 30
    Thompson v. State, 
    612 S.W.2d 925
    (Tex. Crim. App. 1981)................................23
    Turner v. State, 
    443 S.W.3d 128
    (Tex. Crim. App. 2014) (per curiam) .....15, 16, 27
    Whitehead v. State, 
    130 S.W.3d 866
    (Tex. Crim. App. 2004) ...............................23
    Wilson v. State, No. 14-14-00015-CR, 2015 Tex. App. LEXIS 3818 (Tex. App.—
    Houston [14th Dist.] Apr. 16, 2015) (not designated for publication) ................16
    Wyatt v. State, 
    23 S.W.3d 18
    (Tex. Crim. App. 2000)...........................................26
    Statutes
    Tex. Code Crim. Proc. art. 37.071.......................................................................... 8
    Tex. Code Crim. Proc. art. 42.02...........................................................................26
    Tex. Fam. Code § 51.02......................................................................................... 6
    Tex. Gov't Code § 311.032 ...................................................................................10
    Tex. Gov't Code § 498.003 ...................................................................................25
    Tex. Gov't Code § 508.145 .............................................................................17, 25
    Tex. Penal Code § 19.03 ........................................................................................ 7
    Tex. Penal Code § 12.31 ................................................................................passim
    Other Authority
    George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and
    Procedure § 55:48 (3rd ed. 2011).......................................................................23
    Rule
    Tex. R. App. P. 38.1 .............................................................................................26
    Constitutional Provision
    U.S. CONST., AMEND. VIII ..................................................................................... 5
    iv
    STATEMENT REGARDING ORAL ARGUMENT
    Undersigned counsel for the State believes that oral argument is unnecessary
    because the briefs filed by the parties adequately present the facts and legal
    arguments. However, if the Court does grant the appellant’s request for oral
    argument, the State respectfully requests that the Court also permit the State to
    provide oral argument.
    STATEMENT OF THE CASE
    On December 15, 2007—at the age of 17—the appellant shot and killed
    Fernando Santander during the course of a robbery. The appellant was charged by
    indictment with capital murder and aggravated robbery. The State did not seek the
    death penalty. On December 11, 2008, a jury found the appellant guilty of capital
    murder. 7 RR 165. On that same date, the trial court automatically assessed the
    appellant’s punishment at imprisonment for life without parole. 7 RR 168. See
    Tex. Penal Code § 12.31(a)(2).
    The instant appeal is the appellant’s second direct appeal. On his first direct
    appeal, the appellant’s conviction and sentence were affirmed by this Court. See
    Maxwell v. State, No. 03-09-00027-CR, 2010 Tex. App. LEXIS 9036 (Tex. App.—
    Austin Nov. 12, 2010) (not designated for publication). The appellant’s petition
    v
    for discretionary review was refused by the Court of Criminal Appeals, and this
    Court’s mandate was issued on June 22, 2011. 1 CR 69.
    On June 25, 2012, the U.S. Supreme Court ruled, in Miller v. Alabama, that
    “mandatory life without parole for those under the age of 18 at the time of their
    crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual
    punishments.’” Miller v. Alabama, 
    132 S. Ct. 2455
    , 2460, 
    183 L. Ed. 2d 407
    (2012).
    On October 10, 2012, the appellant sought habeas relief, citing the Miller
    ruling. 1 CR 114, 120. On March 12, 2014, the Court of Criminal Appeals
    granted habeas relief and vacated the appellant’s automatic sentence of life without
    parole. The appellant’s case was remanded to the trial court “for further
    sentencing proceedings to permit the factfinder to assess applicant’s sentence at (1)
    life with the possibility of parole (as both pre-2005 and post-2013 Texas law
    permits) or (2) life without parole after consideration of applicant’s individual
    conduct, circumstances, and character.” Ex parte Maxwell, 
    424 S.W.3d 66
    , 76
    (Tex. Crim. App. 2014); 1 CR 170.
    On August 8, 2014, the trial court assessed the appellant’s punishment at
    imprisonment for life with the possibility of parole. RR 9; 1 CR 234- 36. On
    September 11, 2014, the appellant filed a motion for new trial. 1 CR 240. The
    appellant’s notice of appeal was filed on that same date. 1 CR 243. On October
    vi
    21, 2014, the trial court certified that the appellant has the right of appeal in
    relation to the sentence assessed on remand.1 2 CR 3.
    On May 19, 2015, the State moved to dismiss this appeal for want of
    jurisdiction. As was explained in that motion, the appellant’s notice of appeal was
    untimely. It appears to undersigned counsel that this Court has not yet ruled on the
    State’s motion. The State’s motion to dismiss this appeal for want of jurisdiction is
    incorporated herein by reference and is re-urged at this time.
    1
    The trial court’s certification of the appellant’s right of appeal does not satisfy the
    requirements of Rule 25.2(d) of the Texas Rules of Appellate Procedure. That rule provides,
    inter alia, as follows:
    (d) Certification of Defendant's Right of Appeal. --If the defendant is the
    appellant, the record must include the trial court's certification of the defendant's
    right of appeal under Rule 25.2(a)(2). The certification shall include a notice that
    the defendant has been informed of his rights concerning an appeal, as well as any
    right to file a pro se petition for discretionary review. This notification shall be
    signed by the defendant, with a copy given to him. The certification should be
    part of the record when notice is filed, but may be added by timely amendment or
    supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the
    appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a
    certification that shows the defendant has the right of appeal has not been made
    part of the record under these rules.
    Tex. R. App. P. 25.2(d) (emphasis added). In the instant case, the notification does not purport
    to bear the appellant’s signature. See 2 CR 3. For that reason, the certification does not satisfy
    the requirements of Rule 25.2. Unless the appellate record is supplemented with a certification
    reflecting a signed notification, this appeal “must be dismissed.” Tex. R. App. P. 25.2(d)
    vii
    NO. 03-14-00586-CR
    IN THE COURT OF APPEALS
    THIRD DISTRICT
    AUSTIN, TEXAS
    TERRELL MAXWELL,
    APPELLANT
    VS.
    THE STATE OF TEXAS,
    APPELLEE
    APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
    TRAVIS COUNTY, TEXAS
    CAUSE NUMBER D-1-DC-08-300490
    HON. DAVID CRAIN, PRESIDING
    STATE’S BRIEF
    TO THE HONORABLE COURT OF APPEALS:
    The State of Texas, by and through the District Attorney for Travis County,
    respectfully submits this brief in response to that of the appellant, Terrell Maxwell.
    2
    STATEMENT OF FACTS
    In its opinion remanding the instant case to the trial court for further
    sentencing proceedings, the Court of Criminal Appeals provided the following
    factual summary:
    A jury convicted applicant of the offense of capital murder. The jury
    heard evidence that, on the night of December 15, 2007, the 17-year-
    old applicant, along with Rashad Dukes and Michael Jamerson, were
    "smoking weed and watching movies" when applicant suggested
    robbing somebody. Applicant had a revolver that was "all black"
    except for a "pearl white handle"—"kind of a cowboy-looking gun."
    They drove Jamerson's car to an apartment complex chosen "because
    that is where the dope dealers and Mexicans were." When they arrived
    at the complex, they sat in the car for several minutes. Applicant
    announced that he would shoot the person they robbed if that person
    did not give them money.
    The trio then got out of the car and approached Fernando Santander,
    who was sitting in a parked van. Applicant held his gun to Mr.
    Santander's cheek and demanded that he "give him his money."
    Visibly scared, Mr. Santander "put up his hands out of shock."
    According to Dukes, "[T]hat's when [applicant] shot him."
    Immediately thereafter, applicant and his accomplices "all took off
    running at the same time." They returned to Jamerson's car and drove
    away. Applicant told the others that "he didn't mean to do it" and that
    "it was an accident." Mr. Santander's body was discovered by friends
    early the next morning, slumped across the center console of the van.
    A .44 caliber jacket fragment was recovered from the parking lot near
    the van. A "tipster" led officers to the three suspects. Dukes and
    Jamerson confessed and testified against applicant in his capital
    murder trial.
    Ex parte Maxwell, 
    424 S.W.3d 66
    , 68 (Tex. Crim. App. 2014).
    An expanded version of those facts is set forth in the opinion issued by the
    Austin Court of Appeals in relation to the appellant’s first direct appeal. See
    3
    Maxwell v. State, No. 03-09-00027-CR, 2010 Tex. App. LEXIS 9036 at *1 -*8
    (Tex. App.—Austin Nov. 12, 2010) (not designated for publication).
    SUMMARY OF THE ARGUMENTS
    In a single point of error, the appellant asserts that the statutory scheme
    underlying his sentence of life with the possibility of parole is unconstitutional as
    applied to him. The appellant’s claim is predicated upon Miller v. Alabama, 132 S.
    Ct. 2455, 
    183 L. Ed. 2d 407
    (2012), where the U.S. Supreme Court held that a
    mandatory sentence of life without parole violates the Eighth Amendment's
    prohibition on cruel and unusual punishment if the defendant was younger than age
    18 when the crime was committed.
    This Court should reject the appellant’s claim. The Court of Criminal
    Appeals has previously determined that the mandatory nature of that scheme does
    not render it unconstitutional. Further, the Miller holding need not be, and should
    not be, extended and applied to the appellant’s sentence. The statutory scheme at
    issue is entitled to a presumption of constitutionality, and the appellant has failed
    to rebut that presumption.
    4
    THE STATE’S REPLY TO THE FIRST POINT OF ERROR
    THE PUNISHMENT SCHEME UNDERLYING THE APPELLANT ’S LIFE
    SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT.
    Argument and Authorities
    In his sole point of error, the appellant challenges the punishment assessed
    by the trial court on remand.
    1. Nature of the appellant’s claim
    The appellant contends that the statutory scheme under which he was
    sentenced is unconstitutional as applied to him. The appellant’s claim is based
    upon two arguments, both of which are predicated primarily upon the holding of
    the U.S. Supreme Court in Miller v. Alabama, 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012). In Miller, the U.S. Supreme Court held that a mandatory sentence of “life
    without parole” violates the Eighth Amendment's prohibition on cruel and unusual
    punishment if the defendant was younger than age 18 when the crime was
    committed. 
    132 S. Ct. 2455
    , 2464.
    First, the appellant challenges the mandatory nature of the statutory scheme
    under which he was sentenced. See, e.g., App. Brief at 23 (emphasizing that “any
    sentencing scheme that takes sentencing discretion away from juries and the courts
    violates the holding of Miller v. Alabama”). Specifically, he argues that the
    provision at issue, Texas Penal Code section 12.31, is unconstitutional under
    5
    Miller because it required the trial court to assess a life sentence2without requiring
    that the court first conduct an individualized sentencing hearing to consider his age
    at the time of the offense and the “‘three significant gaps between juveniles and
    adults’” identified in Miller.3 App. Brief at 23, quoting Miller v. Ala., 
    132 S. Ct. 2455
    , 2464. In Miller, the Supreme Court specified the nature of those “gaps”:
    First, children have a “‘lack of maturity and an underdeveloped sense
    of responsibility,’” leading to recklessness, impulsivity, and heedless
    risk-taking. Second, children “are more vulnerable . . . to negative
    influences and outside pressures,” including from their family and
    peers; they have limited “contro[l] over their own environment” and
    lack the ability to extricate themselves from horrific, crime-producing
    settings. And third, a child's character is not as “well formed” as an
    adult’s; his traits are “less fixed” and his actions less likely to be
    “evidence of irretrievabl[e] deprav[ity].”
    Miller v. Ala., 
    132 S. Ct. 2455
    , 2464, quoting Roper v. Simmons, 
    543 U.S. 551
    ,
    569, 570, 
    125 S. Ct. 1183
    , 
    161 L. Ed. 2d 1
    (2005).
    Second, the appellant asks this Court to extend the narrow holding of Miller
    in a way that has not been sanctioned by the U.S. Supreme Court or by any
    appellate court in Texas. Emphasizing that he will merely be “eligible for parole
    consideration after 40 calendar years,” the appellant argues that being paroled is a
    2
    As used in this brief, the phrases “life sentence” and “life with parole” are used
    interchangeably and refer to a sentence of life with the possibility of parole.
    3
    Consistent with its usage in Miller, the word “juvenile,” as used herein, indicates that
    the defendants at issue were younger than age 18 when they committed their crimes. The use of
    that word does not suggest that the offender at issue was a “child” within the meaning of the
    Texas Juvenile Justice Code, i.e., a person who was ten years of age or older but younger than 17
    years of age. See Tex. Fam. Code § 51.02(2).
    6
    “remote possibility” for him and that, as a consequence, “[t]here is effectively no
    difference between the mandatory sentencing scheme struck down in Miller v.
    Alabama and a sentencing scheme of automatic life in prison with the possibility of
    parole after 40 years.” App. Brief at 25 (emphasis in original). Thus, the appellant
    seeks to extend Miller, which literally addressed sentences of life without parole,
    to cases involving sentences that are “de facto” sentences of life without parole.
    2. The applicable statutory scheme
    The appellant was convicted of capital murder, which is a capital felony.
    See Tex. Penal Code sec. 19.03(b).
    a. The 2005 version of the statute
    When the appellant’s initial sentence of life without parole was assessed on
    December 11, 2008, section 12.31(a) provided, inter alia, as follows:
    § 12.31. Capital Felony
    (a) … 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 institutional division for life without parole.
    Tex. Penal Code § 12.31(a) (2005) (emphasis added).4 This version of section
    12.31(a) (which is referred to herein as “the 2005 version”) did not expressly
    authorize a sentence of life with the possibility of parole.
    4
    Section 12.31 was amended in 2005 by Senate Bill 60, which added the phrase “without
    parole” to the statute. See Acts 2005, 79th Leg., Ch. 787 (S.B. 60), Sec. 1, eff. September 1,
    2005. That same legislation made a similar amendment to article 37.071. See Tex. Code Crim.
    7
    b. The 2013 version of the statute
    The language of section of 12.31(a) changed significantly before August 8,
    2014, the date when the trial court, on remand, re-sentenced appellant and assessed
    the sentence of life with the possibility of parole. By that time, the sentence
    required by section 12.31(a) depended upon the age of the offender when the
    offense was committed:
    § 12.31. Capital Felony
    (a) … 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 § 12.31(a) (2013) (emphasis added). This amendment of the
    statute took effect on July 22, 2013.5 This age-based distinction was added to the
    Proc. art. 37.071 § 1 (2005) (“If a defendant is found guilty in a capital felony case in which the
    state does not seek the death penalty, the judge shall sentence the defendant to life imprisonment
    without parole”).
    5
    Section 12.31 was amended in 2013 by Senate Bill 2, which added the age-based
    distinction between the authorized sentences. See Acts 2013, 83rd Leg., 2nd C.S., ch. 2 (S.B. 2),
    § 1, effective July 22, 2013. That same legislation amended article 37.071 by incorporating a
    reference to section 12.31 into that article. See Tex. Code Crim. Proc. art. 37.071 § 1 (2013) (“If
    a defendant is found guilty in a capital felony case in which the state does not seek the death
    penalty, the judge shall sentence the defendant to life imprisonment or to life imprisonment
    without parole as required by Section 12.31, Penal Code”).
    8
    statute in response to Miller. Ex parte Maxwell, 
    424 S.W.3d 66
    , 69 (Tex. Crim.
    App. 2014).6
    c. It is not clear which version of the statute was applied on remand
    Even though the amendment of the section 12.31(a) took effect on July 22,
    2013, prior to the date (August 8, 2014) when the appellant was re-sentenced, on
    remand, to life with the possibility of parole, it is not clear that the latter version of
    section 12.31(a) (“the 2013 version”) is the version that was applied when the
    appellant’s punishment was assessed in 2014. Senate Bill 2, the legislation
    promulgating the 2013 change to the statutory language of section 12.31(a),
    contained the following savings clause:
    6
    In its opinion remanding the instant case to the trial court for further sentencing
    proceedings, the Court of Criminal Appeals provided the following summary of the recent
    changes to section 12.31(a):
    Until 2005, an individual adjudged guilty of a capital felony in a case in which the
    State did not seek the death penalty was punished by life. Tex. Penal Code §
    12.31(a) (2003). From 2005 to 2009, such an individual was punished by life
    without parole. Tex. Penal Code § 12.31(a) (2005-2007). From 2009 to 2013, the
    sentence was (1) life, if the individual's case was transferred to the district court
    under Section 54.02, Family Code; or (2) life without parole. Tex. Penal Code §
    12.31(a) (2009-2011). Section 12.31(a)—amended in response to Miller—now
    provides that "[a]n 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 § 12.31(a) (2013).
    Ex parte Maxwell, 
    424 S.W.3d 66
    , 69 (Tex. Crim. App. 2014).
    9
    The change in law made by this Act:
    (1) applies to a criminal action pending, on appeal, or commenced
    on or after the effective date of this Act, regardless of whether the
    criminal action is based on an offense committed before, on, or after
    that date; and
    (2) does not affect a final conviction that exists on the effective date
    of this Act.
    Acts 2013, 83rd Leg., 2nd C.S., ch. 2 (S.B. 2), § 3, effective July 22, 2013
    (emphasis added).
    In short, if the appellant’s conviction was already “final,” within the
    meaning of this savings clause, as of July 22, 2013 (i.e., the date when the
    amendment of the statute became effective), then the 2013 version could not have
    been applied by the trial court when it assessed the appellant’s punishment on
    remand. If the 2013 version did not apply, it appears that the trial court had
    authority to apply the 2005 version of the statute, to the extent that the 2005
    version remained constitutionally valid.
    The appellant asserts that Miller “invalidated Texas Penal Code §
    12.31(a)(2).” App. Brief at 23. That assertion, however, is not entirely correct. In
    actuality, Miller invalidated the 2005 version of section 12.31 only to the extent
    that the provision authorizes the mandatory imposition of a sentence of life without
    parole for an offender who committed the offense while younger than 18 years of
    age. See Tex. Gov't Code § 311.032(c) (“In a statute that does not contain a
    provision for severability or nonseverability, if any provision of the statute or its
    10
    application to any person or circumstance is held invalid, the invalidity does not
    affect other provisions or applications of the statute that can be given effect
    without the invalid provision or application, and to this end the provisions of the
    statute are severable”); Ex parte Jones, 
    803 S.W.2d 712
    (Tex. Crim. App. 1991).
    Thus, the 2005 version of that statute is applied, in effect, by disregarding
    the phrase “without parole.” Where applicable, that version therefore mandates an
    automatic sentence of life with parole for an offender who committed the capital
    felony while younger than 18 years of age. This is evident from the ruling of the
    Court of Criminal Appeals in this very case, where the Court’s remand order
    authorized the trial court to assess—without the trial court’s “consideration of
    applicant's individual conduct, circumstances, and character”—a sentence of “life
    with the possibility of parole.” Ex parte Maxwell, 
    424 S.W.3d 66
    , 76 (Tex. Crim.
    App. 2014) (“We remand this case for further sentencing proceedings to permit the
    factfinder to assess applicant's sentence at (1) life with the possibility of parole (as
    both pre-2005 and post-2013 Texas law permits) or (2) life without parole after
    consideration of applicant's individual conduct, circumstances, and character”).
    Although the remand order, issued on March 12, 2014, made reference to
    “both pre-2005 and post-2013 Texas law,” the language used by the Court of
    Criminal Appeals suggests that neither of those versions was applied here. The
    “pre-2005” was not applicable because it was superseded by the 2005 version
    11
    (which took effect on September 1, 2005). If the appellant’s conviction was
    already “final,” within the meaning of the savings clause, then (as was explained
    above) the 2013 version was likewise inapplicable.
    In the instant case, it makes no difference which version of section 12.31
    was applied. Each version, if applied, mandated the assessment of a sentence of
    life with the possibility of parole, even though the appellant was age 17 when he
    murdered Mr. Santander.
    3. Standard governing appellate review
    The appellant makes an “as applied” challenge to the constitutionality of the
    capital-felony sentencing statute.7 “[A]n ‘as applied’ challenge to the
    constitutionality of a statute requires the challenger to demonstrate that the statute
    has operated unconstitutionally when applied to his particular circumstances.
    7
    The appellant’s claim does not amount to a facial challenge to the constitutionality of the
    section 12.31. In a facial challenge, the appellate court must examine the statute “as it is written,
    rather than how it is applied in a particular case.” State v. Rosseau, 
    396 S.W.3d 550
    , 558 (Tex.
    Crim. App. 2013); cf. Ex parte Ragston, 
    402 S.W.3d 472
    , 476 (Tex. App.—Houston [14th Dist.]
    2013) (distinguishing between facial challenge and as-applied challenge in context of pretrial
    habeas challenge to section 12.31). Analysis of the statute's constitutionality must begin with the
    presumption that the statute is valid and that the Legislature did not act arbitrarily or
    unreasonably in enacting it. 
    396 S.W.3d 550
    , 558. “A facial challenge to a statute is the most
    difficult challenge to mount successfully because the challenger must establish that no set of
    circumstances exists under which the statute will be valid.” Santikos v. State, 
    836 S.W.2d 631
    ,
    633 (Tex. Crim. App. 1992). Here, the appellant’s claim is predicated upon the fact that he was
    younger than 18 years of age when he committed the offense; he makes no claim that the statute
    operates unconstitutionally in cases against defendants who were older than age 18 when
    committing the offense of capital murder.
    12
    Because a statute may be valid as applied to one set of facts and invalid as applied
    to another, it is incumbent upon the challenger to first show that, in its operation,
    the statute is unconstitutional as to him in his situation; that it may be
    unconstitutional as to others is not sufficient.” State ex rel. Lykos v. Fine, 
    330 S.W.3d 904
    , 916 (Tex. Crim. App. 2011).
    When assessing the constitutionality of a statute as applied, the appellate
    court is required to presume that the statute is valid and that the Legislature did not
    act unreasonably or arbitrarily in enacting it. Ex parte Granviel, 
    561 S.W.2d 503
    ,
    511 (Tex. Crim. App. 1978).
    4. The mandatory nature of the punishment scheme does not render it
    unconstitutional as applied to the appellant
    The appellant argues that Penal Code section 12.31is unconstitutional under
    Miller, as applied to him, because the mandatory nature of that statute “precludes
    consideration of [the juvenile’s] chronological age and its hallmark features….”
    App. Brief at 23, quoting Miller, 
    132 S. Ct. 2455
    , 2468. He contends, inter alia,
    that “any sentencing scheme that takes sentencing discretion away from juries and
    the courts violates the holding of Miller v. Alabama.” App. Brief at 23. The
    appellant’s argument lacks merit because the mandatory nature of the statute did
    not result in a violation the Eighth Amendment’s prohibition against cruel and
    unusual punishment.
    13
    The argument presented here has been squarely addressed by the Court of
    Criminal Appeals. In Lewis v. State, 
    428 S.W.3d 860
    (Tex. Crim. App. 2014), the
    court held that, unlike a sentence of life without parole, a life sentence may
    properly be assessed without a punishment hearing, even if the defendant was
    younger than age 18 when he committed the capital murder. See 
    id. at 864.
    There, the Court of Criminal Appeals considered the consolidated appeals of
    two defendants, each of whom committed the offense of capital murder at age 16.
    Each defendant stood trial as an adult, was convicted of capital murder, and was
    automatically assessed the mandatory sentence of life without the possibility of
    parole. Each defendant claimed, on direct appeal, that his sentence was
    unconstitutional under Miller. In each case, the court of appeals agreed with the
    Miller claim and reformed the respective defendant’s sentence to life imprisonment
    with a possibility of parole. 
    Id. at 861-63.
    Both defendants then filed petitions for discretionary review, claiming that
    Miller requires individualized sentencing of juvenile offenders and that their
    reformed sentences were therefore unconstitutional. The Court of Criminal
    Appeals rejected those claims, specifically finding that the mandatory nature of the
    statute did not run afoul of Miller:
    Miller does not forbid mandatory sentencing schemes. The mandatory
    nature of a sentencing scheme is not the aspect that precludes
    rehabilitation; rather, the sentencing scheme in Miller was
    unconstitutional because it denied juveniles convicted of murder all
    14
    possibility of parole, leaving them no opportunity or incentive for
    rehabilitation. Life in prison with the possibility of parole leaves a
    route for juvenile offenders to prove that they have changed while
    also assessing a punishment that the Legislature has deemed
    appropriate in light of the fact that the juvenile took someone's life
    under specified circumstances.
    Lewis, 
    428 S.W.3d 860
    , 863 (emphasis added).
    Applying those principles to the claims made by the two defendants, the
    court reasoned as follows:
    Appellants argue that they are entitled to individualized sentencing
    hearings before being assessed sentences of life imprisonment because
    they were juveniles at the time of their offenses. This is not what
    Miller requires. Miller does not entitle all juvenile offenders to
    individualized sentencing. It requires an individualized hearing only
    when a juvenile can be sentenced to life without the possibility of
    parole. After the reformations by the appellate courts, appellants are
    not sentenced to life without parole, and under Section 12.31 of the
    Penal Code, juvenile offenders in Texas do not now face life without
    parole at all. Therefore, appellants' cases do not fall within the scope
    of the narrow holding in Miller.
    
    Id., 428 S.W.3d
    at 863-64.
    The court concluded, “Because the holding in Miller is limited to a
    prohibition on mandatory life without parole for juvenile offenders, appellants are
    not entitled to punishment hearings.” 
    Id. at 864.
    Accord Turner v. State, 
    443 S.W.3d 128
    , 129 (Tex. Crim. App. 2014) (per curiam) (holding that appellant “is
    not entitled to an individualized sentencing hearing” and reforming sentence from
    life without parole to life with the possibility of parole); Lewis v. State, 
    448 S.W.3d 138
    (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
    15
    The procedural history of the instant case differs slightly from those of the
    Court of Criminal Appeals cases addressed above. In Lewis and in Turner, the
    sentence of each defendant was reformed by an appellate court from life without
    parole to life with a possibility of parole. In the case at bar, the appellant’s original
    sentence of life without parole was reversed on appeal, and his sentence of life
    with the possibility of parole was assessed by the trial court on remand. That
    distinction is inconsequential. In other cases where the life sentence was assessed
    upon remand, the appellate courts have followed Lewis and Turner and held that
    the “punishment on remand did not violate the Eighth Amendment.” Henry v.
    State, No. 05-14-00197-CR, 2015 Tex. App. LEXIS 7151 at *5 (Tex. App.—
    Dallas July 10, 2015) (not designated for publication); Wilson v. State, No. 14-14-
    00015-CR, 2015 Tex. App. LEXIS 3818 (Tex. App.—Houston [14th Dist.] Apr.
    16, 2015) (not designated for publication).
    Accordingly, the Court should find that the appellant was not entitled to an
    individualized punishment hearing under the Eighth Amendment and that the
    mandatory nature of section 12.31 therefore did not cause that statute to be
    unconstitutional as applied to him.
    16
    5. Miller should be applied only to sentences that literally preclude parole
    As was mentioned above, the appellant asks this Court to extend Miller
    (which addressed only life sentences that literally precluded parole) to a sentence
    that is, according to the appellant, a “de facto” sentence of life without parole. He
    argues that being paroled is a “remote possibility” for him and that “[t]here is
    effectively no difference between the mandatory sentencing scheme struck down in
    Miller v. Alabama and a sentencing scheme of automatic life in prison with the
    possibility of parole after 40 years.” App. Brief at 25.
    It is true that the appellant’s eligibility for parole will not begin until he has
    served 40 calendar years in prison. See Tex. Gov't Code § 508.145(b) (2013)
    (“An inmate serving a life sentence under Section 12.31(a)(1), Penal Code, for a
    capital felony is not eligible for release on parole until the actual calendar time the
    inmate has served, without consideration of good conduct time, equals 40 calendar
    years”).8 However, that 40-year minimum period of incarceration does not, in and
    8
    As was explained above, the appellant’s life sentence was assessed pursuant to either
    Texas Penal Code section 12.31(a) (1) (2013) or an earlier version of that same statute, i.e.,
    section 12.31(a) (2005). Regardless of which version of that statute was applied, the appellant’s
    eligibility for parole begins after he has served 40 calendar years in prison. Compare Tex. Gov't
    Code § 508.145(b) (2013) (“An inmate serving a life sentence under Section 12.31(a)(1), Penal
    Code, for a capital felony is not eligible for release on parole until the actual calendar time the
    inmate has served, without consideration of good conduct time, equals 40 calendar years”) with
    
    id. § 508.145(b)
    (2010) (“An inmate serving a life sentence under Section 12.31(a)(1), Penal
    Code, for a capital felony is not eligible for release on parole until the actual calendar time the
    inmate has served, without consideration of good conduct time, equals 40 calendar years.”).
    17
    of itself, compel the conclusion that the appellant’s sentence is the functional
    equivalent of a sentence of life without parole.
    As a more fundamental matter, that 40-year requirement does it justify the
    extension of Miller to a sentence that does not literally preclude the possibility of
    parole. “Miller did not hold that a juvenile homicide offender could not be
    sentenced to life imprisonment with the possibility of release.” State v. Vang, 
    847 N.W.2d 248
    , 262 (Minn. 2014). For purposes of assessing constitutionality, a
    punishment scheme that completely precludes parole differs significantly from a
    scheme that authorizes parole, even where the juvenile’s parole eligibility does not
    arise for 40 years. Because of those differences, the Court should narrowly
    construe Miller and decline to extend its holding to the present case.
    a. By its terms, Miller merely applies to sentences of life without
    parole
    A number of courts in other jurisdictions have recognized that Miller simply
    does not require an analysis of the type requested by the appellant. In one recent
    case, for example, the Supreme Court of Wyoming concluded as follows:
    The Miller Court did not hold that mandatory life sentences for
    juveniles were unconstitutional; it only held that a certain process
    must be followed before imposition of a sentence of life without
    parole. Like the courts of Massachusetts, Pennsylvania and
    Minnesota, we conclude that we cannot extend the protections of the
    United States Constitution to all mandatory life sentences for
    juveniles, when the United States Supreme Court has declined the
    opportunity to do so.
    18
    Bear Cloud v. State, 
    334 P.3d 132
    , 145, 
    2014 WY 113
    (Wyo. 2014). See
    Commonwealth v. Brown, 
    466 Mass. 676
    , 
    1 N.E.3d 259
    , 267 (Mass. 2013) (“If the
    Court in Miller had intended to invalidate all mandatory life sentences for
    juveniles, it could have reached that issue. Instead, Miller's holding was decidedly
    narrow[.]”); Commonwealth v. Batts, 
    620 Pa. 115
    , 
    66 A.3d 286
    , 296 (Pa. 2013)
    (expressing reluctance to go further than the Supreme Court, which “neither barred
    imposition of a life-without-parole sentence on a juvenile categorically nor
    indicated that a life sentence with the possibility of parole could never be
    mandatorily imposed on a juvenile”); Ouk v. State, 
    847 N.W.2d 698
    , 701 (Minn.
    2014) (holding that life sentence with the possibility of release after 30 years “does
    not violate the rule announced in Miller because it does not require the imposition
    of the harshest term of imprisonment: life imprisonment without the possibility of
    release”).
    “As one court put it: ‘[i]f the Supreme Court has more in mind, it will have
    to say what that is.’” Bunch v. Smith, 
    685 F.3d 546
    , 553 (6th Cir. 2012), quoting
    Henry v. State, 
    82 So. 3d 1084
    , 1089 (Fla. App. 2012).
    b. To extend Miller, this Court would be required to assess the
    probability of parole, not merely its possibility
    In Miller, the punishment schemes at issue were deemed unconstitutional
    because they “denied juveniles convicted of murder all possibility of parole,
    leaving them no opportunity or incentive for rehabilitation.” Lewis, 
    428 S.W.3d 19
    860, 863 (emphasis added); see 
    Miller, 132 S. Ct. at 2465
    (“Life without parole
    ‘forswears altogether the rehabilitative ideal’”), quoting Graham v. Florida, 
    560 U.S. 48
    , 74, 
    130 S. Ct. 2011
    , 
    176 L. Ed. 2d 825
    (2010); see also 
    Graham, 560 U.S. at 79
    (“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”).9
    In contrast to the life-without-parole sentences at issue in Miller, a
    mandatory sentence of life with parole is constitutionally permissible precisely
    because the latter (by definition) gives the juvenile defendant the possibility of
    parole and therefore does not stifle the incentives associated with that possibility:
    Life in prison with the possibility of parole leaves a route for juvenile
    offenders to prove that they have changed while also assessing a
    punishment that the Legislature has deemed appropriate in light of the
    fact that the juvenile took someone's life under specified
    circumstances.
    Lewis, 
    428 S.W.3d 860
    , 863.
    Thus, for purposes of assessing constitutionality of a punishment scheme in
    the context of juvenile defendants, the critical distinction between the sentences of
    life with parole and life without parole is one of “possibility.”
    The appellant does not dispute that parole is a possibility for him. Instead,
    he focuses on its probability, claiming that the possibility of parole in his case is so
    9
    In Graham, the Supreme Court held that the Eighth Amendment is violated where a
    juvenile offender is “sentenced to life in prison without parole for a nonhomicide crime.”
    Graham v. Florida, 
    560 U.S. 48
    , 52-53 (U.S. 2010)
    20
    “remote” or improbable that it causes his sentence to be a de facto sentence of life
    without parole. App. Brief at 25. This distinction between possibility and
    probability is significant. In Miller, the issue was one of possibility, not
    probability. The punishment schemes at issue there were declared unconstitutional
    because they “denied juveniles convicted of murder all possibility of parole.”
    Lewis, 
    428 S.W.3d 860
    , 863.
    In Miller, it was self-evident that no such opportunity existed. By definition,
    the life-without-parole sentences literally precluded that possibility. Thus, the
    probability of parole beyond dispute: it was zero. That fact was crystal clear as
    early as the date when those sentences were imposed. Consequently, the Supreme
    Court in Miller was not even called upon to assess the probability of parole.
    Unlike Miller, where the dispositive issue was a simple, black-or-white
    question of possibility, the instant case presents a complicated, shades-of-gray
    issue of probability. To extend the holding of Miller to the instant case, this Court
    would be required to perform a task that the Supreme Court did not itself perform
    in Miller, i.e., the task of determining the probability of parole. Moreover, this
    Court (unlike the Supreme Court in Miller) would also be required to define the
    point at which the probability of parole becomes so low (so “remote”) that parole
    no longer amounts to a meaningful, realistic opportunity.
    21
    c. Assessing the probability of parole is a speculative undertaking
    that should not be performed by this Court
    Determining the likelihood of parole would require untold speculation by
    this Court. Cf. Andrade v. State, 
    700 S.W.2d 585
    , 590 (Tex. Crim. App. 1985)
    (Teague, J., concurring) (“It is or should now be axiomatic that individual jury
    predictions on the possibility of parole represent nothing more than ‘sheer
    speculation.’ … To invite any jury to indulge in such speculation is to ask it to
    foretell numerous imponderables, in particular, the policies that may be adopted by
    the present and unnamed future governors and parole officials.”).
    The probability of parole in this case depends, in large part, upon the
    appellant’s actual lifespan. At the present time, it is undeniable that parole will be
    a possibility if the appellant lives to a ripe old age that is well beyond his initial
    parole-eligibility date (which is invariable because it is fixed by law). On the other
    hand, it is equally clear right now that, if the appellant’s death occurs before the
    arrival of that same parole-eligibility date, he will have had no such opportunity.
    In similar cases, some courts in other jurisdictions have considered life
    expectancy to be “a key factual issue.” State v. Null, 
    836 N.W.2d 41
    , 71 (Iowa
    2013). See, e.g., People v. Perez, 
    214 Cal. App. 4th 49
    , 57, 
    154 Cal. Rptr. 3d 114
    (Cal. App. 2013) (“We are aware of … no case which has used the Roper-Graham-
    Miller-Caballero line of jurisprudence to strike down as cruel and unusual any
    sentence against anyone under the age of 18 where the perpetrator still has
    22
    substantial life expectancy left at the time of eligibility for parole”); People v.
    Caballero, 
    55 Cal. 4th 262
    , 
    145 Cal. Rptr. 3d 286
    , 
    282 P.3d 291
    , 295 (2012)
    (“Defendant in the present matter will become parole eligible over 100 years from
    now…. Consequently, he would have no opportunity to ‘demonstrate growth and
    maturity’ to try to secure his release, in contravention of Graham's dictate.”);
    People v. Mendez, 
    188 Cal. App. 4th 47
    , 62-63 (Cal. App. 2010) (finding
    defendant’s sentence to be a de facto sentence of life without parole because he
    “will not be eligible for parole until he is older than 88 years” and “well past his
    life expectancy, which currently, for an 18-year-old American male, is 76 years”).
    When attempting to assess a defendant’s life expectancy, some appellate
    courts consider generalized mortality tables or other statistical information. See,
    e.g., State v. Ragland, 
    836 N.W.2d 107
    (Iowa 2013). In the instant case, the
    appellant makes certain representations regarding “the average life expectancy of
    federal criminal offenders.”10 App. Brief at 32. The fundamental problem with
    10
    To the extent that the appellant attempts to buttress his claim by reference to materials
    that are not part of the appellate record, that attempt must fail. See, e.g., Leza v. State, 
    351 S.W.3d 344
    , 362 n48 (Tex. Crim. App. 2011); Whitehead v. State, 
    130 S.W.3d 866
    , 872 (Tex.
    Crim. App. 2004); Thompson v. State, 
    612 S.W.2d 925
    , 928 (Tex. Crim. App. 1981) ("Articles
    attached to briefs are not properly before this Court as evidence"); George E. Dix & John M.
    Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 55:48 (3rd ed. 2011) at 116
    ("Perhaps the most basic characteristic of the appellate record is that it is limited to matters
    before the trial court. An appellate court may not consider such extra-record materials as
    affidavits attached to appellate briefs.").
    23
    that approach, however, is that any given defendant may die long before, or long
    after, the date suggested by those tables.
    A related problem occurs when courts consider such generalized information
    but then make adjustments in an attempt to accommodate other variables. See
    
    Null, 836 N.W.2d at 71
    (“It may be, as some have suggested, that long-term
    incarceration presents health and safety risks that tend to decrease life expectancy
    as compared to the general population”).
    The imprecise nature of computing a particular defendant’s life expectancy
    has even led a few courts to conclude that “the determination of whether the
    principles of Miller or Graham apply in a given case” should not “turn on the
    niceties of epidemiology, genetic analysis, or actuarial sciences in determining
    precise mortality dates.” 
    Null, 836 N.W.2d at 71
    ; accord Bear Cloud v. State,
    
    2014 WY 113
    , 
    334 P.3d 132
    , 142 (2014); LeBlanc v. Mathena, 2015 U.S. Dist.
    LEXIS 86090 at *40 (E.D. Va. July 1, 2015).
    The result is that some courts make their rulings without the benefit of any
    bright-line standard. In Null, for example, the Supreme Court of Iowa determined
    that the evidence (a generalized mortality table) "does not clearly establish that [the
    defendant's] prison term is beyond his life expectancy" but still found Graham and
    Miller to apply because the table “suggests that Null's sentence may closely come
    24
    within two years of his life expectancy, but not exceed it.” 
    836 N.W.2d 41
    , 71
    (emphasis added).
    Because the Supreme Court has already articulated a standard that is easy to
    identify and apply—i.e., the possibility of parole—this Court should eschew any
    alternative standard that would cause a ruling to be based upon the vagaries of
    whether the sentence at issue would be “close[]” enough.
    It is true that other factors, such as good conduct, will be considered by the
    parole board in the future, when deciding whether to parole the appellant. See,
    e.g., Tex. Gov't Code § 498.003(a) (providing, inter alia, that “[g]ood conduct time
    applies … to eligibility for parole”). But this Court has no basis for concluding, as
    a matter of law at this time, that those other factors will actually foreclose the
    possibility of parole when they are considered by the parole board some 40 years
    from now.
    The only fact that can reasonably be predicted now is that the appellant will
    become eligible for parole at age 57, upon completion of his 40-year minimum
    stay. See Tex. Gov't Code § 508.145(b) (2013); App. Brief at 26. Nobody can
    predict, with any degree of accuracy, how long the appellant will live beyond his
    parole-eligibility date. Because the probability of parole necessarily encompasses
    that factor of life expectancy and a host of other variables, any conclusions about
    25
    the probability of the appellant being paroled decades from now would necessarily
    be highly speculative.
    It should be noted that the appellant’s claim is not supported by this current
    uncertainty as to whether he will actually be paroled in the future. “‘A State is not
    required to guarantee eventual freedom,’ but must provide ‘some meaningful
    opportunity to obtain release based on demonstrated maturity and rehabilitation’”
    11
    
    Miller, 132 S. Ct. at 2469
    (emphasis added), quoting 
    Graham, 560 U.S. at 75
    , 82.
    That opportunity must be “realistic.” Graham at 82. Moreover, the entire
    statutory scheme at issue here, which includes all of the provisions relating to
    parole, is entitled to a presumption of constitutionality.12 See Ex parte Granviel,
    
    561 S.W.2d 503
    , 511.
    11
    Both Graham and Miller contain language stating that the possibility of parole must be
    a meaningful possibility. That language is dicta in the sense that the meaningfulness of the
    possibility was not at issue in either case. In those cases, the defendants were sentenced to life
    without parole; there was no possibility of parole.
    12
    In his sole point of error, the appellant challenges the statutory scheme underlying his
    “sentence.” However, he does not expressly challenge any Texas statute relating to parole. The
    Court of Criminal Appeals has narrowly interpreted the word "sentence.” See State v. Kersh,
    
    127 S.W.3d 775
    , 777 (Tex. Crim. App. 2004). "The sentence is that part of the judgment … that
    orders that the punishment be carried into execution in the manner prescribed by law" or
    "nothing more than the portion of the judgment setting out the terms of punishment." 
    Id. (quoting Tex.
    Code Crim. Proc. art. 42.02). It follows that parole is not part of a sentence. Any
    such challenge to any Texas statute relating to parole is therefore inadequately briefed and
    should not be considered. See Tex. R. App. P. 38.1; Hankins v. State, 
    132 S.W.3d 380
    , 385
    (Tex. Crim. App. 2004); Wyatt v. State, 
    23 S.W.3d 18
    , 23 (Tex. Crim. App. 2000) (“We will not
    make appellant's arguments for him” where “appellant points us to nothing in the record, makes
    no argument, and cites no authority to support this proposition”). Any challenge to any Texas
    statute based upon the denial of parole is also premature, because the appellant is not yet eligible
    for parole.
    26
    Challenges to the constitutionality of a statute as it applies to a particular
    individual should not be resolved on the basis of speculation, societal averages, or
    imprecise appellate determinations as to whether something is “close enough.”
    This is especially true because the Supreme Court was not called upon do so (and
    did not do so) in Miller and because no other appellate court in Texas has extended
    Miller in the way that the appellant seeks here. Another reason is that the
    punishment at issue was one that “the Legislature has deemed appropriate in light
    of the fact that the juvenile took someone's life under specified circumstances.”
    Lewis, 
    428 S.W.3d 860
    , 863.
    In light of the daunting challenge associated with divining the probability of
    parole in this case, the State respectfully suggests that the better practice would be
    for this Court to avoid that speculative exercise altogether and instead be guided
    solely by the narrow holdings of Miller and the decisions of the Court of Criminal
    Appeals construing that ruling. See Lewis, 
    428 S.W.3d 860
    (Tex. Crim. App.
    2014); Turner, 
    443 S.W.3d 128
    , 129.
    In other words, this Court should forego any assessment of probability and
    limit its analysis to a determination of whether the appellant (like the defendants in
    Miller) was denied the possibility of parole.
    For the Eighth Amendment to be violated, such a denial must result from the
    applicable punishment scheme. In Miller, the defendants’ opportunity for parole
    27
    was literally foreclosed by the respective punishment schemes. Regardless of how
    long those defendants lived, they would never have had a meaningful, realistic
    opportunity to be paroled. Indeed, they would never have had any opportunity
    whatsoever. In the instant case, the opportunity for parole has not been foreclosed
    by the punishment scheme. That opportunity will continue to be a possibility for
    the appellant unless it is foreclosed by future events.
    6. If the Court does perform a probability analysis, it should find that the
    appellant’s sentence is not a de facto sentence of life without parole
    Assuming, for the sake of argument, that Miller can properly be extended
    and applied to sentences that are not literally sentences of life without parole, the
    question to be resolved here is whether the appellant has established that the
    punishment scheme deprived him of a meaningful, realistic opportunity to be
    paroled. Cf. 
    Miller, 132 S. Ct. at 2469
    ; 
    Graham, 560 U.S. at 75
    , 82.13
    No such deprivation has been proved. As was pointed out above, the
    appellant will be eligible for parole at age 57. The appellant has not established, at
    the trial level or on appeal, that he will not have a meaningful, realistic
    opportunity to be paroled when he becomes eligible.14 This Court does not, for
    13
    As was explained above, Miller does not require such an analysis. Nor does Graham,
    which, by its terms, applies to sentences for “nonhomicide” offenses. Graham v. Fla., 
    560 U.S. 48
    , 52 (2010). In the instant case, the sentence at issue relates to the offense of capital murder.
    14
    While the mandatory nature of the punishment scheme, in effect, precluded the trial
    court from considering evidence on this issue during the post-remand sentencing proceedings,
    28
    example, have any reason to believe that the appellant will not live long enough to
    take advantage of that opportunity when it arrives. Nor is there any basis for
    concluding, as a matter of law, that the incentives associated with that possibility
    have been stifled.
    Simply put, the appellant has not established that his sentence is either cruel
    or unusual. In Ellmaker, for example, a Kansas appellate court considered a
    challenge to a juvenile’s sentence that required a mandatory term of imprisonment
    of 50 years, otherwise known as a “hard 50 sentence.” The juvenile committed the
    underlying murder when he was 17 years old. The court rejected that claim,
    concluding that the sentence was not the functional equivalent of a sentence of life
    without parole.
    Granted, a teenager has a greater likelihood of serving all 50 years of
    the sentence than an offender who is, for example, 50 years old. But
    whereas a hard 50 sentence is the functional equivalent of a life
    sentence without the possibility of parole for an offender who is 50
    years old when the sentence is imposed, a juvenile offender who
    receives a hard 50 sentence actually has a chance for release from
    prison at the end of the term.
    ***
    A hard 50 sentence is a severe sentence that carries with it a long term
    of mandatory imprisonment; yet unlike a sentence of life without
    parole or the death penalty, it is not mutually exclusive with eventual
    release. Considering the explicit way in which the United States
    Supreme Court has distinguished life without parole sentences and the
    death penalty and set them apart from all other sentences, we decline
    the appellant will presumably have the ability to present relevant evidence in the future during a
    habeas proceeding.
    29
    Ellmaker's invitation to extend this category to include a hard 50
    sentence when imposed on juveniles. Thus, we reject Ellmaker's
    assertion that a hard 50 sentence on a juvenile offender is the
    functional equivalent of a life sentence without parole. Because
    Ellmaker's claim is based on this premise, his arguments under Miller
    fail for this reason alone.
    Ellmaker v. State, 
    329 P.3d 1253
    (Kan. App. 2014) (not designated for
    publication).
    See also Boneshirt v. United States, No. CIV 13-3008-RAL, 2014 U.S. Dist.
    LEXIS 161922 at *26 - 827 (D.S.D. Nov. 19, 2014) (regarding juvenile convicted
    of murder, federal court rejected claim that sentence violated Miller, reasoning,
    inter alia, “In reality, Boneshirt has a realistic opportunity to be released from
    custody before he dies…. Boneshirt thus will be released from prison between the
    ages of fifty-nine and sixty-five.”); Ouk v. State, 
    847 N.W.2d 698
    , 701 (Minn.
    2014) (holding that life sentence with the possibility of release after 30 years “does
    not violate the rule announced in Miller because it does not require the imposition
    of the harshest term of imprisonment: life imprisonment without the possibility of
    release”); State v. Vang, 
    847 N.W.2d 248
    , 262-63 (Minn. 2014) (rejecting
    juvenile’s claim, reasoning, “Appellant’s life sentence with the possibility of
    release after 30 years is not tantamount to a death sentence. Because appellant is
    eligible for release after 30 years, his mandatory life sentence for first-degree
    murder does not constitute cruel and unusual punishment under the Eighth
    Amendment and the principles of Miller”); People v. Perez, 
    214 Cal. App. 4th 49
    ,
    30
    57, 
    154 Cal. Rptr. 3d 114
    (Cal. App. 2013) (where juvenile, convicted of
    nonhomicide crimes, was assessed two mandatory, consecutive terms totaling of
    30 years to life, the court concluded, “There is no dispute that … he will be eligible
    for parole when he reaches age 47. That is, by no stretch of the imagination can
    this case be called a ‘functional’ or ‘de facto’ [sentence of life without parole], and
    therefore neither Miller, Graham, nor Caballero apply.”).
    7. Conclusion
    The Court should reject the appellant’s claim that the statutory scheme
    underlying his life sentence violates the Eighth Amendment prohibition against
    cruel and unusual punishment. The Court of Criminal Appeals has previously
    determined that the mandatory nature of that scheme does not render it
    unconstitutional. Further, Miller, which addressed sentence of life without parole,
    need not be—and should not be—extended and applied to the appellant’s sentence
    of life with the possibility of parole. The statutory scheme is entitled to a
    presumption of constitutionality, and the appellant has failed to rebut that
    presumption. See Ex parte Granviel, 
    561 S.W.2d 503
    , 511 (Tex. Crim. App.
    1978).
    The appellant’s point of error should be overruled.
    31
    PRAYER
    WHEREFORE, the State requests that the Court overrule the appellant’s
    point of error and affirm the judgment of the trial court.
    Respectfully submitted,
    Rosemary Lehmberg
    District Attorney
    Travis County, Texas
    Timothy Elliott                  /s/ M. Scott Taliaferro
    Law Clerk                        M. Scott Taliaferro
    Texas Bar No. 00785584
    Assistant District Attorney
    Director, Appellate Division
    District Attorney’s Office
    P.O. Box 1748
    Austin, Texas 78767
    Phone: 512.854.3626 Fax: 512.854.4810
    Email: scott.taliaferro@traviscountytx.gov
    and appellateTCDA@traviscountytx.gov
    CERTIFICATE OF COMPLIANCE
    Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based
    on the computer program used to generate this brief, that this brief contains 7,795
    words, excluding words contained in those parts of the brief that Rule 9.4(i)
    exempts from inclusion in the word count.
    /s/ M. Scott Taliaferro
    M. Scott Taliaferro
    32
    CERTIFICATE OF SERVICE
    I hereby certify that, on the 30th day of September 2015, the foregoing
    State’s brief was sent, via U.S. mail, electronic mail, facsimile, or electronically
    through the electronic filing manager, to the appellant’s attorney, Jon Evans, Esq.,
    806 W. 11th Street, Austin, Texas 78701, fax no. (512) 477-6840.
    /s/ M. Scott Taliaferro
    M. Scott Taliaferro
    33