Duran v. State

• Decision Date: 25 August 2011
• Docket Number: Nos. 01–10–00212–CR,01–10–00213–CR.,s. 01–10–00212–CR
• Citation: 363 S.W.3d 719
• Parties: Andrew DURAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

363 S.W.3d 719

Andrew DURAN, Appellant,

v.The STATE of Texas, Appellee.

Nos. 01–10–00212–CR

01–10–00213–CR.

Court of Appeals of Texas, Houston [1st Dist.].

Aug. 25, 2011.Discretionary Review Refused

March 7, 2012.

Winston E. Cochran Jr., Houston, TX, for Appellant.

Roger L. Ezell, Criminal District Attorney, Galveston, TX, for Appellee.

Panel consists of Justices JENNINGS, BLAND, and MASSENGALE.

OPINION

MICHAEL MASSENGALE, Justice.

A jury convicted appellant Andrew Duran of the second-degree felony offense of indecency with a child (trial court case number 09CR1136; appellate court case number 01–10–00212–CR), see Tex. Penal Code Ann. § 21.11(a)(1), (d) (West 2011), and of the first-degree felony offense of aggravated sexual assault of a child (trial court case number 09CR1137; appellate court case number 01–10–00213–CR), see id. § 22.021(a)(1)(B)(ii), (a)(2)(B), (e). Each conviction was enhanced with an allegation that Duran was previously convicted of the felony offense of indecency with a child. Duran pleaded true to the enhancement allegations, and the trial court assessed punishment at life in prison. See id. § 12.42(c)(2)(A)(i), (B)(ii) (providing automatic life sentence for defendant convicted of indecency with child or aggravated sexual assault of child if previously convicted of indecency with child).

On appeal, Duran brings six issues challenging the constitutionality of his sentence under the United States Constitution's prohibition of cruel and unusual punishments and under sections 10 and 13 of the Texas Bill of Rights. U.S. Const. amend. VIII; Tex. Const. art. I, §§ 10, 13. Duran contends that the statute providing for a mandatory life sentence is unconstitutional because it does not allow for the consideration of mitigating evidence and because it effectively deprived him of the right to a jury trial. We affirm.

Analysis

I. Consideration of mitigating factorsa. Federal constitutional argument

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” and this constitutional prohibition has been held to apply to the states by application of the Due Process Clause of the Fourteenth Amendment. See U.S. Const. amends. VIII, XIV; Robinson v. California, 370 U.S. 660, 675, 82 S.Ct. 1417, 1425, 8 L.Ed.2d 758 (1962). In his first and second issues, Duran contends that the imposition of a mandatory life sentence for his convictions violates the Eighth Amendment because it precludes the consideration of mitigating evidence. He does not contest the excessiveness or proportionality of his own sentence other than to the extent he challenges the constitutionality of all mandatory-sentencing statutes.

In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the United States Supreme Court overruled an Eighth Amendment objection to a mandatory life-without-parole sentence. The petitioner argued that his sentence was cruel and unusual because the mandatory sentence was disproportionate to the crime for which he was convicted (possession of more than 650 grams of cocaine), and because the judge was statutorily required to impose his sentence and could not consider any mitigating factors. See 501 U.S. at 961–62, 111 S.Ct. at 2683–2684. Announcing the opinion of the Court, Justice Scalia wrote:

[Petitioner] argues that it is “cruel and unusual” to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions....

... [T]his claim has no support in the text and history of the Eighth Amendment. Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history.... There can be no serious contention, then, that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.”

Id. at 994–95, 111 S.Ct. at 2701. Similarly, Justice Kennedy wrote in his concurring opinion:

Petitioner would have us hold that any severe penalty scheme requires individualized sentencing so that a judicial official may consider mitigating circumstances. Our precedents do not support this proposition, and petitioner presents no convincing reason to fashion an exception or adopt a new rule in the case before us....

... It is beyond question that the legislature “has the power to define criminal punishments without giving the courts any sentencing discretion[.]”

Id. at 1006, 111 S.Ct. at 2707–08 (Kennedy, J., concurring in part and concurring judgment) (quoting Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 1928, 114 L.Ed.2d 524 (1991)).

Duran argues that Harmelin's holding “cannot be squared with” the Supreme Court's more recent opinion in Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Graham holding does not directly control Duran's appeal because the petitioner in that case was not sentenced under a mandatory sentencing scheme, and he had the opportunity to introduce mitigating evidence. Graham, 130 S.Ct. at 2018–19. Nevertheless, Duran construes Graham to instruct that mitigating factors now must be considered as part of the “judicial exercise of independent judgment” in applying the Eighth Amendment, which he contends requires all courts to consider “the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” Id. at 2026. Duran characterizes this language in Graham as “call[ing] for a reconsideration of the law,” and he argues that the rule requiring consideration of mitigating circumstances in the death-penalty context should be extended to this case. We reject this argument.

In Graham, the petitioner challenged the constitutionality of mandatory life-without-parole sentences for juvenile offenders in nonhomicide cases. Id. at 2017–18. With respect to proportionality challenges under the Eighth Amendment,¹ Graham observed that the relevant authorities “fall within two general classifications”: those challenging “the length of term-of-years sentences given all the circumstances in a particular case” and those in which “certain categorical restrictions” have been employed to implement the proportionality standard. Id. at 2021. Duran's challenge is of the categorical variety because he contends that the mandatory sentence is unconstitutional for the reason that it precludes consideration of mitigating circumstances.²

In cases adopting categorical Eighth Amendment sentencing rules, the Supreme Court has considered “ ‘objective indicia of society's standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 563, 125 S.Ct. 1183, 1191, 161 L.Ed.2d 1 (2005)). “Next, guided by ‘the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,’ ” id. (quoting Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S.Ct. 2641, 2650, 171 L.Ed.2d 525, modified on denial of reh'g, ––– U.S. ––––, 129 S.Ct. 1, 171 L.Ed.2d 932 (2008)), the Court determines “in the exercise of its own independent judgment whether the punishment in question violates the Constitution.” Id. (citing Roper, 543 U.S. at 572, 125 S.Ct. at 1196–97). It was in the context of this second step of the categorical analysis of a particular sentencing practice that the Graham Court observed that “[t]he judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” Id. at 2026 (citing Roper, 543 U.S. at 572, 125 S.Ct. at 1196–97; Kennedy, 554 U.S. at 436–37, 128 S.Ct. at 2659–60). Graham's reference to the “culpability of the offenders” was not an indication that mitigating circumstances relating to the culpability of each individual defendant must be considered in sentencing; it was, instead, an acknowledgement that certain punishments may be categorically classified as disproportionate when applied to certain classes of offenders who are relatively less culpable than other offenders, such as juveniles, the intellectually disabled, or defendants who did not kill or intend to kill. Id. at 2026–30.

Duran was not a juvenile when he committed the charged offenses, so Graham does not apply to him. He offers no argument that he is part of a category of defendants who, like the juvenile offenders at issue in Graham, should never be subject to a sentence of life without parole for a nonhomicide offense. Accordingly, Harmelin controls the outcome of Duran's appeal. Under Harmelin, we conclude that the Eighth Amendment is not violated by the unavailability of any procedural mechanism to allow the court or jury to consider mitigating factors under the mandatory sentencing scheme contained within the Texas Penal Code's habitual offender statute. See Harmelin, 501 U.S. at 994–95, 111 S.Ct. at 2701; accord Wilkerson v. State, 347 S.W.3d 720, 723 (Tex.App.-Houston [14th Dist.] 2011, no pet.) ( Graham “turned strictly upon the application of the Eighth Amendment's narrow proportionality principle, not the right to produce evidence of mitigating circumstances”).

b. State constitutional argument

In his third and fourth issues, Duran argues that a mandatory sentencing statute violates Section 13 of the Texas Bill of Rights, which provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Tex. Const. art. I, § 13. This language is nearly identical to the Cruel and Unusual Punishments Clause of the Eighth Amendment, with one variation. The Texas Constitution states its prohibition disjunctively—“cruel or unusual” punishments—instead of...