Garza v. State, PD–1596–12.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation435 S.W.3d 258
Docket NumberNo. PD–1596–12.,PD–1596–12.
PartiesJames GARZA, Appellant v. The STATE of Texas.
Decision Date11 June 2014

435 S.W.3d 258

James GARZA, Appellant
The STATE of Texas.

No. PD–1596–12.

Court of Criminal Appeals of Texas.

June 11, 2014.

[435 S.W.3d 259]

Edward F. Shaughnessy III, San Antonio, TX, for Appellant.

Jay Brandon, Assistant District Attorney, San Antonio, LISA C. MCMINN, STATE'S ATTORNEY, AUSTIN, TX, for the State.


KEASLER, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, and HERVEY, JJ., join.

On appeal, James Garza contested the imposition of his life-without-parole sentence arguing that, because he was a juvenile, the sentence violated his Eighth Amendment rights as defined by the United States Supreme Court's decision in Miller v. Alabama. The Fourth Court of Appeals refused to review his claim and held that, by failing to lodge an objection in the trial court, Garza has forfeited this claim on appeal. We reverse the court of appeals' decision because it conflicts with this Court's subsequently delivered opinion in Ex parte Maxwell.

In November 2011, a jury convicted James Garza of capital murder for his involvement in the stabbing death of the complainant for the purpose of stealing the complainant's car. The State waived the death penalty because Garza was a juvenile at the time of the capital murder.

[435 S.W.3d 260]

Immediately upon conviction, Garza was sentenced to life without parole pursuant to Texas Penal Code § 12.31(b), as it existed at the time. No sentencing hearing was conducted, and “[n]o objection was voiced to the procedure employed or to the imposition of the sentence imposed.” 1

In a single issue on appeal, Garza claimed that his life-without-parole sentence violated the Eight Amendment's prohibition against cruel and unusual punishment because his status as a juvenile bars the punishment imposed. Garza cited the United States Supreme Court's 2012 opinion in Miller v. Alabama2 in support of his claim. The court of appeals affirmed the trial court's judgment without addressing the merits of Garza's claim because it found that the issue had not been preserved for review.3

Garza asserts that the court of appeals erred by deciding the procedural-default issue under general preservation-of-error principles without considering whether Garza's claim must be preserved in light of our opinion in Marin v. State.4Texas Rule of Appellate Procedure 33.1 establishes the general requirement that a contemporaneous objection must be made to preserve error for appeal.5 But in Marin, we held that the general preservation requirement does not apply to all claims. There, we separated the rights of a defendant into three categories:

• The first category of rights are those that are “widely considered so fundamental to the proper functioning of our adjudicatory process ... that they cannot be forfeited ... by inaction alone.” 6 These are considered “absolute rights.” 7

• The second category of rights is comprised of rights that are “not forfeitable”—they cannot be surrendered by mere inaction, but are “waivable” if the waiver is affirmatively, plainly, freely, and intelligently made. 8 The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.9

• Finally, the third category of rights are “forfeitable” and must be requested by the litigant.10 Many rights of the criminal defendant, including some constitutional rights, are in this category and can be forfeited by inaction.11

Rule 33.1's preservation requirements do not apply to rights falling within the first two categories.12 Barring these two narrow exceptions, all errors—even constitutional errors—may be forfeited on appeal

[435 S.W.3d 261]

if an appellant failed to object at trial.13 Although it did not reference Marin specifically, the court of appeals relied on this Court's previous cases, in addition to several other courts of appeals' decisions, generally holding that Eighth Amendment issues are forfeited if not raised in the trial court.14 The court of appeals reached this conclusion without the benefit of our opinion in Ex parte Maxwell.15 A careful reading of Maxwell indicates that a majority of this Court has already passed on this issue—if only by necessary implication.

In Maxwell, a majority of the Court—over two dissenting opinions joined by a total of four judges—held that the rule announced in Miller was a new substantive rule, as opposed to a procedural rule, and therefore applied retroactively.16 In so holding, the majority concluded that Miller “puts a juvenile's mandatory ‘life without parole’ sentence outside the ambit of the State's power.” 17 It was Maxwell's status as a juvenile, so went the analysis, that precluded imposing the life-without-parole sentence he received.18 While on its face, Maxwell appeared to address a pure retroactivity question,19 it held by necessary implication that a claim asserting an Eighth Amendment violation under Miller was not subject to procedural default. The majority opinion specifically acknowledged that, on direct appeal, the court of appeals “rejected [Maxwell's] claim that his automatic sentence violated the Eighth Amendment because he had never raised that claim in the trial court.” 20 Nonetheless, the majority granted Maxwell habeas corpus relief by vacating his life-without-parole sentence and remanding the case for further sentencing proceedings permitting the factfinder to determine whether Maxwell's sentence should be assessed at life with or without parole.21

While this case presents a question of error preservation on appeal and not in a collateral proceeding, the preservation requirement overlaps substantially, and the requirement in each context informs the other. 22 It has become a staple in our

[435 S.W.3d 262]

habeas corpus jurisprudence that preservation of error is generally a prerequisite to being granted relief. 23 In their treatise, Professors Dix and Schmolesky correctly summarize our case law on the topic thus:

Generally, all of the reasons that support the need for a matter to have been raised at trial when the matter is relied upon in direct appeal apply equally or more forcefully when a matter is relied upon in postconviction habeas corpus. Most likely, then, if a matter is one that could be relied upon on appeal only if the defendant called it to the attention of the trial judge in a timely manner and requested appropriate relief, similar action will be held necessary to “preserve” the matter for consideration on habeas corpus.


The nature of collateral attack, moreover, suggests that even a more stringent standard than is applied on direct appeal might at least sometimes be appropriate in the habeas corpus context.24

Like the result of forfeiture by inaction in the trial court, this Court will not review the merits of a habeas corpus claim if an applicant had the opportunity to raise the issue on appeal.25 We have held that even constitutional claims are forfeited if an applicant had the opportunity to raise the issue on appeal.26 This principle stemmed from the oft-quoted axiom “The Great Writ should not be used in matters that should have been raised on appeal.” 27 And “the trend of this Court has been to draw stricter boundaries regarding what claims may be advanced on habeas.” 28

However, by reaching the merits of Maxwell's claim, the Maxwell majority held, perforce, that Maxwell's Miller claim was not subject to procedural default. This implied holding was a condition precedent to granting relief; it was a threshold through which the Court allowed Maxwell's claim to pass. Without it, the Court could not entertain the merits of Maxwell's claim consistent with our established case law, much less grant relief on it. Maxwell 's result decided the issue before us today: substantive status-based or individualized-sentencing claims under the Eighth Amendment and embraced by Miller are not forfeited by inaction. We therefore may not conclude today that Garza's Miller claim is forfeited on appeal without an objection at trial and at the same time adhere to the Court's opinion in Maxwell. Failing to consider Maxwell 's effect on the instant case denies Maxwell the force of precedent deserving of an opinion that received the support from a majority of the Court. Until such time as the United States Supreme Court calls this Court's characterization of the Miller rule

[435 S.W.3d 263]

into doubt, we are bound by Maxwell 's express and necessarily implied holdings.

We do find limits on Maxwell 's implied holding, though. In granting Maxwell habeas corpus relief, the Maxwell majority did not purport to discern whether his Miller claim fell within Marin 's “absolute prohibitions” or “waiver-only” category. It was sufficient for the majority opinion to hold that Maxwell's claim was simply not forfeited. Likewise, this case does not require that we further define where in Marin 's categorical structure a Miller claim is properly placed. We reserve such a decision for a matter that properly presents the issue. Maxwell sufficiently addressed the propriety of the court of appeals' holding we are called upon to review.

Accordingly, we hold that Garza's claim was not forfeited by his failure to urge his claim in the trial court. The court of appeals' judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

PRICE, J., filed a concurring opinion, in which WOMACK, J., joined.
COCHRAN, J., filed a concurring opinion, in which ALCALA, J., joined.
ALCALA, J., filed a concurring opinion, in which JOHNSON and COCHRAN, JJ., joined.
KELLER, P.J., filed a dissenting opinion.

PRICE, J., filed a concurring opinion in which WOMACK, J., joined.

I join the Court's opinion without reluctance or hesitation—but then, I was among the majority in Ex parte Maxwell.1 I readily agree with the Court today that Maxwell held, if only by necessary implication, that an Eighth Amendment claim predicated on Miller v. Alabama,2 that a mandatory sentence of life without parole...

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    ...2014 WL 2002276, 2014 Tex. Crim. App. Unpub. LEXIS 488 (Tex.Crim.App. May 7, 2014)(not designated for publication).1 Garza v. State,435 S.W.3d 258, 261–62 (Tex. Crim. App. 2014).2 Ex parte Bagley,509 S.W.2d 332, 333 (Tex. Crim. App. 1974). See, e.g.,Ex parte Jimenez,364 S.W.3d 866, 882 (Tex......
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