Henry v. State
| Decision Date | 10 July 2015 |
| Docket Number | No. 05-14-00197-CR,05-14-00197-CR |
| Parties | TERRANCE HENRY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Court of Appeals of Texas |
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Before Justices Lang, Brown, and Whitehill1
Opinion by Justice Lang
Terrance Henry appeals the trial court's judgment convicting him of capital murder. On remand from this court, the trial court assessed his punishment at imprisonment for life. Henry raises four issues on appeal, arguing his punishment on remand is unconstitutional because the law relating to the assessment of his new punishment: (1) violates the Eighth Amendment to the United States Constitution; (2) was applied ex post facto; (3) violates his right to due process; and (4) constitutes a bill of attainder.
We conclude Henry's punishment on remand is not unconstitutional. Also, we conclude the judgment incorrectly states that Henry pleaded guilty and modify the judgment accordingly. The trial court's judgment is affirmed as modified.
A description of the factual background of this case may be found in Henry v. State, No. 05-11-00676-CR, 2012 WL 3631251 (Tex. App.—Dallas Aug. 24, 2012, no pet.)(mem. op., not designated for publication). The jury found Henry, a seventeen year old at the time of the offense, guilty of capital murder and assessed his punishment at life imprisonment without parole. While Henry's appeal was pending, the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids a sentencing scheme for juvenile offenders in which life without parole is mandatory rather than based on an individualized sentencing assessment. Miller v. Alabama, 132 S. Ct. 2455 (2012); Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)(per curiam); Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App. 2014). Henry appealed. In his first appeal, this Court reversed the trial court's judgment as to punishment and remanded the case for a new punishment hearing. Henry, 2012 WL 3631251; cf. Turner, 443 S.W.3d at 129 (). On remand, the trial court assessed Henry's punishment at imprisonment for life, with the possibility of parole. This second appeal followed.
The constitutionality of a criminal statute is a question of law that an appellate court reviews de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In assessing a statute's constitutionality, an appellate court starts with the presumption that the statute is valid and the legislature did not act arbitrarily or unreasonably in enacting the statute. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). As the party challenging the statute, the appellant has the burden of establishing its unconstitutionality. Rodriguez, 93 S.W.3d at 69. Anappellate court must uphold the statute if it can determine a reasonable construction that renders it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).
In issue one, Henry argues his punishment on remand is unconstitutional because the law applied when assessing his new punishment violates the Eighth Amendment to the United States Constitution. Henry argues the United States Supreme Court's rationale in Miller and use of language from its prior opinions in Graham and Roper requires that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. See Miller, 231 S. Ct. 2455 (); Graham v. Florida, 560 U.S. 48 (2010)(Eighth Amendment forbids sentence of life without parole for juvenile offender who did not commit homicide); Roper v. Simmons, 543 U.S. 551 (2005)(death penalty cruel and unusual when imposed on juvenile offender). The State responds that "no Texas court has ever questioned the idea that a life sentence is appropriate for conduct such as Henry's, and thus permissible to be made mandatory or automatic." Further, the State maintains that Miller does not forbid mandatory sentencing schemes and once the trial court eliminated the "without parole" provision, Henry's sentence satisfied the narrow holding in Miller.
The Eighth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, prohibits cruel and unusual punishment and requires a criminal sentence to be proportionate to the crime committed. See U.S. CONST. amend. VIII; Lackey v. State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref'd). Even when a sentence is within the range permitted by law, a sentence may, in rare instances, be disproportionate to the gravity of the offense. See Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006)("Subject only to a very limited, 'exceedingly rare,' and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer's informed normative judgment, is unassailable on appeal."). "The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller, 132 S. Ct. at 2469; Lewis, 428 S.W.3d at 863. However, juvenile offenders sentenced to life with the possibility of parole are not entitled to individualized sentencing under the Eighth Amendment. Turner, 443 S.W.3d at 129; Lewis, 428 S.W.3d at 863. Texas courts have consistently held tht the mandatory life sentence required under section 12.31 of the Texas Penal Code is not unconstitutional as cruel and unusual punishment under the Eighth Amendment. E.g., Murkle v. State, 437 S.W.3d 17, 30 ().
Henry argues the Eighth Amendment requires that he receive an individualized sentencing hearing. However, the Texas Court of Criminal Appeals has already determined that juvenile offenders are not entitled to an individualized sentencing hearing.2 Turner, 443 S.W.3d at 129; Lewis, 428 S.W.3d at 864-65. As a result, Henry was entitled to have his sentence reformed from life without parole to life with the possibility of parole. See Turner, 443 S.W.3d at 129; Lewis, 428 S.W.3d at 864-65. This is the new punishment Henry received when he was resentenced. Accordingly, we conclude Henry's punishment on remand did not violate the Eighth Amendment.
Issue one is decided against Henry.
In issue two, Henry argues his punishment on remand is unconstitutional because the law used to assess his new punishment was applied ex post facto. Henry argues the holding in Miller made the punishment originally authorized by the Texas Legislature void ab initio. As a result, he claims that, for the offense he was convicted, there was no punishment applicable to him. Consequently, Henry contends that the 2013 amendment to section 12.31 of the Texas Penal Code "severely increased his punishment." The State responds that "[t]his argument is pure sophistry." The State argues the 2013 amendment to section 12.31 "did not change the punishment for capital murder: it was imprisonment for life when Henry committed the offense and it was imprisonment for life when he was resentenced in August [] 2013."
Article I, section 9 of the United States Constitution states, "No . . . ex post facto Law shall be passed," and article I, section 10 prohibits the states from passing any ex post facto law. U.S. CONST. art. I, §§ 9, 10. Similarly, article I, section 16 of the Texas Constitution states that "[n]o . . . ex post facto law . . . shall be made." TEX. CONST. art. 1, § 16. Only the legislature can violate either the federal or state Ex Post Facto Clause. Ex parte Heilman, 456 S.W.3d 159, 163 (Tex. Crim. App. 2015).
Under the Texas or United States Constitution, an ex post facto law: (1) punishes as a crime an act previously committed which was innocent when done; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts greater punishment than the law attached to the criminal offense when committed; or (4) deprives a person charged with a crime of any defense available at the time the act was committed. See Peugh v. United States, 133 S. Ct. 2072, 2081 (2013) ; Collins v. Youngblood, 497 U.S. 37, 42 (1990); Rodriguez v. State, 93 S.W.3d 60,66-67 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219-20 (Tex. Crim. App. 1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996). The Ex Post Facto Clause prohibits applying a new statute's higher penalties to pre-statute conduct, but it does not prohibit applying lower penalties. See Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012).
The Texas Court of Criminal Appeals has recognized that an unconstitutional statute is void ab initio and when a statute is adjudged to be unconstitutional, it is as if it had never been, i.e., such an unconstitutional statute is stillborn. See Smith v. State, No. PD-1790-13, 2015 WL 3895016, at *4 (Tex. Crim. App. June 24, 2015)(quoting Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988) and Ex parte Bockhorn, 138 S.W. 706, 707 (Tex. Crim. App. 1911)). When a law under which a defendant is found guilty is declared unconstitutional, the law stands as if the new law had never been enacted. See Ex parte Jones, 440 S.W.3d 628, 629 (Tex. Crim. App. 2014)(if appellant incorrect in constitutional challenge, then amendment valid and his offense is punishable as third-degree felony, but if he is correct, then his offense is...
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