Ex parte Evans

• Decision Date: 22 August 2013
• Docket Number: No. 02–13–00037–CR.,02–13–00037–CR.
• Citation: 410 S.W.3d 481
• Parties: Ex parte Jacob Ryan EVANS.
• Court: Texas Court of Appeals

410 S.W.3d 481

Ex parte Jacob Ryan EVANS.

No. 02–13–00037–CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 22, 2013.

Larry M. Moore, Law Offices of Moore & Cummings, Fort Worth, Mac Smith, Vick, Carney & Smith, LLP, Weatherford, for Appellant.

Don Schnebly, District Attorney, Edward D. Lewallen, Assistant District Attorney, Parker County, Weatherford, for State.

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

In two points, appellant Jacob Ryan Evans appeals the trial court's order setting his bond at $750,000 and denying the remaining relief that he requested in his application for a writ of habeas corpus. We affirm.

Background Facts

In the first count of a December 2012 three-count indictment, a grand jury charged appellant with committing capital murder in October 2012 by intentionally or knowingly killing Jami Evans and Mallory Evans in the same criminal transaction.¹ The other two counts of the indictment charged appellant with murdering Jami and Mallory individually. The trial court appointed counsel to represent appellant.

In January 2013, appellant filed an application for a writ of habeas corpus, alleging that his incarceration for the capital murder count of the indictment was unconstitutional because he was seventeen years old upon allegedly committing the offense ² and because two decisions by the United States Supreme Court had established that “neither of the two statutorily authorized punishments for this offense [could] be applied to him.” ³ Appellant contended that under such circumstances, his continued detention, “and the continued restraint of [his] liberty in order to compel [him] to answer to such charge ... [was] unlawful.” Thus, appellant urged the trial court to “immediately discharge[ ]” him from any further restraint under the capital murder allegation. Appellant also argued that the trial court had violated his constitutional and statutory rights by refusing to set a bond.

The trial court set a hearing on appellant's application. In responding to the application and in urging the trial court to deny relief on part of it, ⁴ the State principally contended that appellant was making pretrial as-applied challenges to the constitutionality of the Texas capital murder sentencing statutes and that such challenges were not cognizable through an application for a writ of habeas corpus.⁵ The State noted that appellant had not challenged the constitutionality of the penal code provision that defined capital murder and asserted, in part,

The state's capital murder sentencing statutes are not keeping [appellant] in confinement or otherwise restraining his liberty. Rather, it is the fact he was indicted with an allegation of violating the capital murder statute which has caused the present “restraint” of his liberty. It is not until [appellant] is actually convicted of the offense of capital murder after a trial that it can be said those statutes are “restraining” [appellant's] liberty interests.

In summary, the State argued that appellant's challenges to the constitutionality of any sentence that he could receive under Texas's capital murder sentencing statutes could be properly resolved only in the event of, and subsequent to, his conviction.

Appellant replied to the State's response by reiterating that no Texas statute provided a constitutional punishment that could be applied to appellant in the event of his conviction. Although appellant recognized that as-applied constitutional challenges could not generally be litigated in pretrial habeas corpus applications, he contended that he was not bringing such a challenge because the unconstitutional application of the Texas capital murder sentencing statutes to him had already been clearly established by the Supreme Court's precedent, which, according to appellant, affected the trial court's power to proceed on the capital murder charge.

The trial court heard arguments from both parties at a brief hearing on the writ application. During the hearing, the State conceded that at the time of the hearing, there was no constitutional sentence for a seventeen-year-old person convicted of capital murder. The State explained, however, that a “lot of things could happen” regarding the sentencing statutes before the trial of the case, and the State specifically referred to a bill that was pending in the legislature that could “fix” the constitutional problem.

Appellant's father, Darryl Evans, testified at the hearing that he did not intend to assist appellant in making a bond, that appellant did not have any assets to contribute to making a bond, and that appellant had not previously been convicted of a crime. The trial court, over appellant's objection, admitted a written statement that appellant gave on the day of the offense. The statement, given in October 2012, included appellant's acknowledgements that he had received Miranda⁶ warnings. In the statement, appellant wrote that after watching a movie, hitting golf balls, and thinking about how to kill his family, he shot Mallory (his sister) and Jami (his mother) multiple times.

The court denied relief on the majority of appellant's habeas corpus application but set a bond of $750,000. Appellant brought this appeal.

The Validity of Appellant's Confinement for Capital Murder

In his first point, appellant argues that the trial court erred by denying his primary requested relief—discharge from custody on the capital murder charge against him—on the ground that as a result of the holdings in Miller and in Roper, no constitutional punishment could be applied to him if he was convicted of that offense.

The sole purpose of an appeal from a trial court's habeas corpus ruling is to “do substantial justice to the parties,” and in resolving such an appeal, we may “render whatever judgment ... the nature of the case require[s].” Tex.R.App. P. 31.2, 31.3; see Ex parte Idigbe, No. 02–12–00561–CR, 2013 WL 772891, at *5 (Tex.App.-Fort Worth Feb. 28, 2013, pet. ref'd) (mem. op., not designated for publication). We review the trial court's decision to deny habeas corpus relief for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.), cert. denied,549 U.S. 1052, 127 S.Ct. 667, 166 L.Ed.2d 514 (2006). We will uphold the trial court's judgment as long as it is correct on any theory of law applicable to the case. Ex parte Murillo, 389 S.W.3d 922, 926 (Tex.App.-Houston [14th Dist.] 2013, no pet.); Ex parte Primrose, 950 S.W.2d 775, 778 (Tex.App.-Fort Worth 1997, pet. ref'd).

Because appellant was seventeen years old at the time that he allegedly committed capital murder, he cannot be tried as a juvenile. SeeTex. Fam.Code Ann. § 51.02(2)(A) (West Supp.2012), § 51.04(a) (West 2008). At all points from the date of appellant's alleged offense through the date of the submission of this appeal, two Texas statutes relating to sentencing of a capital felony offense provided that an adult (such as appellant) found guilty of such an offense could be punished only by mandatory imprisonment for life without parole or by death. See Act of May 29, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930, amended by Act of July 11, 2013, 83rd Leg., 2d C.S., S.B. 2, § 1 (to be codified at Tex. Penal Code Ann. § 12.31); Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2705, amended by Act of July 11, 2013, 83rd Leg., 2d C.S., S.B. 2, § 2 (to be codified at Tex.Code Crim. Proc. Ann. art. 37.071). Under Miller and Roper, neither of these two punishments could be constitutionally applied to appellant.⁷See Miller, 132 S.Ct. at 2463, 2469;Roper, 543 U.S. at 568, 125 S.Ct. at 1194;Ex parte Ragston, 402 S.W.3d 472, 474–75 (Tex.App.-Houston [14th Dist.] 2013, pet. granted); Henry v. State, No. 05–11–00676–CR, 2012 WL 3631251, at *6 (Tex.App.-Dallas Aug. 24, 2012, no pet.) (mem. op., not designated for publication).

Recognizing the problem created in cases similar to appellant's case, the legislature has recently amended the capital murder sentencing statutes to provide that if a defendant commits capital murder before turning eighteen years old and is convicted of that offense, the defendant shall be punished for life, rather than life without the possibility of parole. See Act of July 11, 2013, 83rd Leg., 2d C.S., S.B. 2, §§ 1–2. The new sentencing statutes take effect immediately and expressly apply to a pending criminal action, to one currently on appeal, or to one commenced on or after the day of their enactment, regardless of whether the criminal action is based on an offense before that date. Id. §§ 3–4.

The legislature's action has removed Texas's capital murder sentencing statutes from the express holdings of Miller and Roper. See Miller, 132 S.Ct. at 2463, 2469 (prohibiting the imposition of mandatory life without the possibility of parole for offenders under eighteen years old but expressly leaving open a “sentencer's ability” to impose life without the possibility of parole after considering competing factors in appropriate cases); Roper, 543 U.S. at 568, 125 S.Ct. at 1194. Thus, appellant's argument, which hinges on his contention that the explicit, specific holdings in Miller and Roper preclude any constitutional punishment that can be applied to him and that his restraint for capital murder is therefore illegal, cannot now succeed, if it ever could have.⁸

Apparently anticipating on appeal the amendment to the capital murder sentencing statutes that has now occurred, appellant also contends in his brief that such an amendment cannot be constitutionally applied to him because of the ex post facto clause in the United States Constitution. See U.S. Const. art. I, § 10 (stating that no state shall pass any ex post facto law). But appellant did not raise this argument in his application for a writ of habeas corpus that he filed in the trial court; ⁹ thus, we will not consider it in this appeal. See State v. Romero, 962 S.W.2d 143,...