           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1596-12



                              JAMES GARZA, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTH COURT OF APPEALS
                          BEXAR COUNTY

       K EASLER, J., delivered the opinion of the Court, in which M EYERS, P RICE,
W OMACK, and H ERVEY , JJ., join. P RICE, J., filed a concurring opinion, in which
W OMACK, J., joined. C OCHRAN, J., filed a concurring opinion, in which A LCALA, J.,
joined. A LCALA, J., filed a concurring opinion, in which J OHNSON and C OCHRAN, JJ.,
joined. K ELLER, P.J., filed a dissenting opinion.

                                      OPINION

       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
                                                                                  GARZA—2

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. 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



       1
           Appellant’s Br. 4.
       2
         132 S.Ct. 2455 (2012) (holding that the mandatory imposition of a life-without-
parole sentence upon a juvenile is unconstitutional).
       3
      Garza v. State, No. 04–11–00891–CR, 2012 WL 5236048, at *1 (Tex.
App.—San Antonio Oct. 24, 2012) (mem. op, not designated for publication).
                                                                                 GARZA—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.4 Texas 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

       4
         851 S.W.2d 275 (Tex. Crim. App. 1993), overuled on other grounds by Cain v.
State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
       5
          T EX. R. A PP. P RO. 33.1(a) (requiring that, as a prequisite to presenting a
complaint on appeal, the record show a complaint was made to the trial court alleging
specific grounds for the objection that comply with the Rules of Evidence and that the
trial court ruled, or refused to rule on, the objection.).
       6
           Marin, 851 S.W.2d at 278.
       7
           Id. at 279.
       8
           Id. at 279–80.
       9
           Id.
                                                                                   GARZA—4

       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 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

       10
            Id.
       11
            Id. at 279.
       12
            See id. at 279–80.
       13
            Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).
       14
          Garza, 2012 WL 5236048, at *2 (citing Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App.1996), Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.1995),
Ham v. State, 355 S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d), Noland v.
State, 264 S.W.3d 144, 152 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d), and
Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d)).
       15
             Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. Mar. 12, 2014).
                                                                                  GARZA—5

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

       16
            Id. at 73–76.
       17
            Id. at 75 (emphasis in original).
       18
            Id.
       19
           See id. at 67–68. (“We ordered that this application be filed and set to decide if
Miller v. Alabama applies retroactively to a claim raised in a post-conviction proceeding,
and, if so, what remedy is appropriate.”).
       20
            Id. at 68.
       21
            Id. at 76.
                                                                                    GARZA—6

collateral proceeding, the preservation requirement overlaps substantially, and the

requirement in each context informs the other.22 It has become a staple in our 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


       22
           See generally Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989)
(stating “this Court adheres to the contemporaneous objection rule which is, generally,
that ‘appellate courts will not consider any error which counsel for the accused could
have called, but did not call, to the attention of the trial court at the time when such error
could have been avoided or corrected by the trial court.’”), Ex parte Bagley, 509 S.W.2d
332, 333 (Tex. Crim. App. 1974) (“The same rule as to the necessity of an objection to
complained of evidence has been applied by this Court in habeas corpus cases.”), 43B
G EORGE E. D IX & J OHN M. S CHMOLESKY, C RIMINAL P RACTICE AND P ROCEDURE § 59:7
(3d ed. 2011) (“Bagley incorporates contemporaneous objection law as developed in
direct appeal cases into habeas corpus law.”).
       23
         See, e.g, Ex parte Jimenez, 364 S.W.3d 866, 882 (Tex. Crim. App. 2012), Ex
parte Medellin, 280 S.W.3d 854, 860–63 (Tex. Crim. App. 2008), Ex parte Bagley, 509
S.W.2d at 334.
       24
            43B D IX & S CHMOLESKY at § 59:7.
                                                                                      GARZA—7


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


       25
         Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008), Ex parte
Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007), Ex parte Townsend, 137 S.W.3d
79, 81 (Tex. Crim. App. 2004); Ex parte Bagley, 509 S.W.2d at 334.
       26
         E.g., Jimenez, 364 S.W.3d at 882 (holding that Applicant forfeited his claim
based on Ake v. Oklahoma, 470 U.S. 68 (1985), for failing to object at trial and pursue
claim on appeal).
       27
            Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).
       28
            Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim. App. 2006).
                                                                                  GARZA—8

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 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.




DELIVERED: June 11, 2014

PUBLISH
