Opinion issued September 24, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00175-CR
                           ———————————
                        CELVIN BROOKS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1515314


                          CONCURRING OPINION

      Relying on Miller v. Alabama, 567 U.S. 460 (2012), Celvin Brooks argues

that the imposition of a mandatory life sentence without the possibility of parole

until he has served 40 years of his sentence is unconstitutional, given that he

committed the crime as a juvenile. As it must, our court rejects his argument. In
Lewis v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014), the Texas Court of Criminal

Appeals held that the mandatory sentencing scheme at issue does not run afoul of

the constitution as interpreted in Miller. See id. at 863–64. We are bound to follow

and apply Lewis. Because Lewis was wrongly decided, however, I do so under

protest.

      In Miller, the United States Supreme Court held that the imposition of

mandatory life imprisonment without the possibility of parole on juvenile defendants

violates the Eighth Amendment’s guarantee against cruel and unusual punishment.

567 U.S. at 479. As the Court explained, fundamental cognitive differences in

juvenile offenders make them inherently less culpable than adults. See id. at 470–

73. Owing to the Eighth Amendment’s requirement that punishment be

proportionate, the inherent differences between juveniles and adults make juveniles

“constitutionally different from adults for purposes of sentencing.” Id. at 471.

Consequently, when sentencing juvenile offenders, the State may not impose its

severest penalties without taking their youth into consideration. Id. at 474.

      Lewis interprets Miller narrowly, holding that Miller forbids sentencing

schemes that impose a mandatory life sentence without the possibility of parole and

no more. 428 S.W.3d at 863–64. According to the Court of Criminal Appeals,

Texas’s statutory scheme thus passes constitutional muster because it allows




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juveniles subject to a mandatory life sentence the possibility of parole after 40 years.

See id.

       While Lewis correctly states Miller’s holding, it gives insufficient weight to

the rationale underlying that holding: that juvenile offenders are constitutionally

different. Miller itself was an extension of prior decisions that turned on this

constitutional difference. See 567 U.S. at 470–80 (relying on Roper v. Simmons, 543

U.S. 551 (2005) (Eighth Amendment bars capital punishment for juveniles), and

Graham v. Florida, 560 U.S. 48 (2010) (Eighth Amendment bars life without

possibility of parole for juveniles who commit nonhomicide offenses)). Instead of

confining these prior decisions to their literal holdings, Miller relied on their

“foundational principle: that imposition of a State’s most severe penalties on

juvenile offenders cannot proceed as though they were not children.” Id. at 474.

       This foundational principle is as applicable to mandatory life imprisonment

of a juvenile offender without the possibility of parole until he has served 40 years.

A mandatory sentence of four decades minimum—one of the State’s most severe

criminal penalties—in all circumstances precludes the sentencer from considering

the offender’s youth and its hallmark features in assessing the juvenile offender’s

punishment, contrary to the Eighth Amendment. See Miller, 567 U.S. at 479–80,

489.




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                                           Gordon Goodman
                                           Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Justice Goodman, concurring.

Publish. TEX. R. APP. P. 47.2(b).




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