Wilkerson v. State

• Decision Date: 03 May 2011
• Docket Number: No. 14–09–00025–CR.,14–09–00025–CR.
• Parties: Terry Don WILKERSON, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

347 S.W.3d 720

Terry Don WILKERSON, Appellant,

v.The STATE of Texas, Appellee.

No. 14–09–00025–CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 3, 2011.Discretionary Review Refused

Oct. 12, 2011.

Danny K. Easterling, Houston, TX, for Appellants.Michael C. Young, Conroe, TX, for Appellee.

OPINION

TRACY CHRISTOPHER, Justice.

William and Louise Lewis were shot to death in their New Caney home in January 2006. Appellant Terry Don Wilkerson was indicted on two counts of capital murder in connection with the killings. A jury convicted him on both counts. Because the State did not seek the death penalty, punishment was assessed at a mandatory term of life imprisonment without the possibility of parole. See Tex. Penal Code Ann. § 12.31 (West 2010).

Appellant raises five issues on appeal. In his first issue, he requests that we abate this appeal for findings of fact and conclusions of law. In issues two and three, appellant contends his punishment is cruel and unusual in violation of the United States and Texas Constitutions. In his fourth issue, he contends the mandatory sentencing scheme violates the separation of powers doctrine embodied in the Texas Constitution. In his fifth issue, he contends the trial court erroneously explained the concept of proof beyond a reasonable doubt.

Because the trial court submitted its findings of fact and conclusions of law during the pendency of this appeal, we dispose of appellant's first issue as moot. Finding no error in the remaining issues, we affirm.

CRUEL AND UNUSUAL PUNISHMENT

In his second and third issues, appellant argues that his mandatory sentence is unconstitutional because the sentencing scheme provided no vehicle for the consideration of mitigating evidence. Appellant asserts this argument under the Eighth Amendment to the United States Constitution, as well as article 1, section 13 of the Texas Constitution.

Appellant failed to preserve error below. Before a party may present a complaint for appellate review, the record must normally show that the complaint was made to the trial court by a timely request, objection, or motion. Tex.R.App. P. 33.1. Appellant never objected at trial that the sentencing statute violated either the United States or Texas Constitutions. Because no specific and timely objection was made, appellant has waived these issues by raising them for the first time on appeal. See Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App.1995); Battle v. State, 348 S.W.3d 29, 30–31, 2011 WL 781935 (Tex.App.-Houston [14th Dist.] 2011, no pet.).

Appellant argues that an objection was not necessary to preserve his complaint because his claim rests on the Supreme Court's decision in Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), an Eighth Amendment case that did not issue until after his sentencing. Even if we were to assume that Graham allows appellant to assert his Eighth Amendment claim for the first time on appeal, we would still find that his sentence was neither cruel nor unusual.

The Eighth Amendment encompasses an individualized sentencing doctrine that precludes mandatory sentencing in cases where the death penalty is sought. See Sumner v. Shuman, 483 U.S. 66, 73–76, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion). In such cases, the defendant must have an opportunity to produce mitigating evidence showing that death is not appropriate in light “of the character and record of the individual offender and the circumstances of the particular offense.” Woodson, 428 U.S. at 304, 96 S.Ct. 2978; see Burns v. State, 761 S.W.2d 353, 357–58 (Tex.Crim.App.1988).

In Harmelin v. Michigan, the Supreme Court refused to extend the individualized sentencing doctrine to the term-of-years context. 501 U.S. 957, 994–95, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). The Court held that no term of imprisonment—not even life without parole—could ever compare to the severity of capital punishment. Id. at 996, 111 S.Ct. 2680. Death, the Court observed, is “unique in its total irrevocability.” Id. at 995, 111 S.Ct. 2680 (citing Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring)). Because of this qualitative difference, the Court held that the reasons for requiring individualized sentencing did not apply outside the context of capital punishment. Id. at 996, 111 S.Ct. 2680. Thus, under Harmelin, the Eighth Amendment does not afford criminal defendants the right to produce evidence of mitigating circumstances when the state seeks punishment for a term of years. Id.; Ex parte Chavez, 213 S.W.3d 320, 324 n. 20 (Tex.Crim.App.2006); see also Cienfuegos v. State, 113 S.W.3d 481, 494–96 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (reaching the same conclusion under the Texas Constitution).

Appellant concedes that Harmelin was controlling authority at the time of his trial, and he admits that objecting to his mandatory sentence would have been futile for that reason. However, appellant now claims that Harmelin applies with less force following the Supreme Court's decision in Graham, which was decided after his trial ended. We disagree.

The issue in Graham concerned only whether a juvenile offender could be sentenced to life without parole for the commission of a non-homicide crime. Graham, 130 S.Ct. at 2017–18. The Court held that such a sentence was unconstitutional. Id. at 2034. However, the decision turned strictly upon the application of the Eighth Amendment's narrow proportionality principle, not the right to produce evidence of mitigating circumstances. See id. at 2023–30. The offender in Graham was not punished pursuant to a mandatory sentencing statute. In fact, the trial court received various recommendations, ranging from four to thirty years' imprisonment. See id. at 2018–19. Because the offender had the opportunity to produce mitigating evidence, the Supreme Court was not required to revisit Harmelin and decide whether the Eighth Amendment mandates individualized consideration for a term-of-years sentence. See Welch v. State, 335 S.W.3d 376, 381–82 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd).

In short, the Graham decision shaped the Eighth Amendment only to the extent it held that a juvenile may not be sentenced to life without parole for a non-homicide crime. The ruling was categorical, applying regardless of whether the sentence was imposed as a mandatory term or as the most severe punishment in a discretionary range of years. Importantly, the scenario presented in Graham is not presented here. Appellant was not a juvenile at the time of his offense, nor was he convicted of a non-homicide crime. As such, Graham has no application to the facts of this case. Contrary to appellant's suggestions, Harmelin still provides controlling authority.

Appellant's second and third issues are overruled.

SEPARATION OF POWERS

In his fourth issue, appellant argues that the mandatory sentencing statute violates the separation of powers doctrine. That doctrine, as articulated in article II, section 1 of the Texas Constitution, states the following:

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

Tex. Const. art. II, § 1.

Appellant contends that Section 12.31 is unconstitutional because it allows the judicial department to invade the province of the executive. Specifically, he argues that the statute shifts power away from the Board of Pardons and Paroles (“Board”), which is an executive agency, and into the hands of the prosecutor, who is an officer of the judiciary. See Tex. Const. art. IV, § 11; Tex. Const. art. V, § 21; Meshell v. State, 739 S.W.2d 246, 253 (Tex.Crim.App.1987) (holding that county and district attorney's are officers within the judicial department).

Appellant's argument focuses on the discretionary aspect of sentencing under Section 12.31. In a capital trial, the prosecutor may elect for punishment in the form of death or its nearest alternative, a sentence of life without parole. Tex. Penal Code Ann. § 12.31. When the prosecutor elects against death and a conviction is secured, the mandatory sentence precludes the Board from ever exercising its powers of executive clemency. See Tex. Gov't Code Ann. § 508.141 (West 2004). Appellant claims that this violates the separation of powers doctrine because the election permits the prosecutor to determine that a capital defendant is not deserving of parole, a decision that is otherwise left to the Board when the defendant is convicted on a lesser charge of homicide.

Appellant did not present this argument to the trial court below, and thus, he has not preserved error for our review. See Tex.R.App. P. 33.1. Appellant insists that because his claim is jurisdictional, he may still raise it for the first time on appeal, relying on Rose v. State, 752 S.W.2d 529, 552–53 (Tex.Crim.App.1987) (op. on reh'g). However, during the pendency of this appeal, the Texas Court of Criminal Appeals overruled Rose, holding that error must be preserved before a defendant may assert a facial challenge to the constitutionality of a statute. Karenev v. State, 281 S.W.3d 428, 434 (Tex.Crim.App.2009). Even if we were to assume that appellant could raise this issue under the authority that controlled at the time of his sentencing, we would still find that the prosecutor's election does not amount to a violation of the separation of powers doctrine.

To establish a violation under Article II, Section 1, appellant must show that one...