                                                                              PD-0568-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
June 18, 2015                                               Transmitted 6/17/2015 3:38:05 PM
                                                              Accepted 6/18/2015 2:21:12 PM
                         NO. PD-0568-15                                       ABEL ACOSTA
                                                                                      CLERK

        IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                           AT AUSTIN



                        NO. 14-14-00015-CR


                IN THE COURT OF APPEALS FOR THE


                 FOURTEENTH DISTRICT OF TEXAS


                          AT HOUSTON




 HERBERT RAY WILSON,                             APPELLANT

 V.


 THE STATE OF TEXAS,                             APPELLEE




   APPELLANT'S PETITION FOR DISCRETIONARY REVIEW



                              Danny K. Easterling
                              Easterling & Easterling, PC
                              Texas Bar No. 06362100
                              1018 Preston, 6,h Floor
                              Houston, TX 77002
                              (713)228-4441
                              E-mail: eaepc@swbell.net

                              Counsel for Appellant

                  ORAL ARGUMENT REQUESTED.
                 STATEMENT REGARDING ORAL ARGUMENT

      The appellant requests oral argument because important constitutional issues

are presented.

                      LIST OF INTERESTED PARTIES


Herbert Ray Wilson                         Appellant, Defendant in trial court

Danny K. Easterling                        Appellant's counsel at trial and on
1018 Preston, Suite 600                    appeal
Houston, TX 77002

Devon Anderson                             Harris County District Attorney
1201 Franklin, Suite 600
Houston, TX 77002

Bridget Holloway                           Assistant District Attorney

Hon. Ruben Guerrero                        Judge, 174th district Court
                                            Harris County, Texas
                             TABLE OF CONTENTS


Statement Regarding Oral Argument                                                    I

List of Interested Parties                                                           I

List of Authorities                                                                 iv

Statement of the Case                                                               1


Statement of Procedural History                                                     3

Questions Presented                                                                 3

      (1)    Did the Court of Appeals err in holding that the mandatory and
             automatic life sentence, with parole eligibility in forty years, did
             not violate U.S. CONST. Amend. VIII?


      (2)    Did the Court of Appeals err in holding that the mandatory and
             automatic life sentence, with parole eligibility in forty years, did
             not violate TEX. CONST. Art. I, §13?

      (3)    Did the Court of Appeals err in holding that the mandatory and
             automatic life sentence, with parole eligibility in forty years, did
             not violate the due process clause ofU.S. CONST. Amend. XIV?

      (4)    Did the Court of Appeals err in holding that the mandatory and
             automatic life sentence, with parole eligibility in forty years, did
             not violate the due course of law provision ofTEX. CONST. Art.
             I, §19?

Argument                                                                            4

      Reasons for Review of Question One                                            4

             A. Core Eighth Amendment Principles                                    4


                                           u
                     (1) Evolving Standards                                 5

                     (2) The Importance of Having a Punishment Factfinder
                     Consider Mitigating Factors                            6

             B.     From Roper to Graham to Miller                          1

             C. The Flawed Texas Response to Miller                         8

             D. The Illusory Benefit of Parole in Forty Years               10

      Reasons for Review of Question Two                                    11

      Reasons for Review of Questions Three and Four                        13

             A. The Due Process "Right to Be Heard"                         13

             B.     The Texas Counterpart to Due Process                    13

             C. The Court of Appeals' Error                                 15

Prayer for Relief                                                           17

Certificate of Compliance                                                   17

Certificate of Service                                                      18


Appendix: Court of Appeals' Memorandum Opinion and Judgment




                                         in
                            LIST OF AUTHORITIES


Cases                                                                      Page

Armstrong v Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)          14

Bell v. Burson, 402 U.S. 535,91 S.Ct. 1586,29 L.Ed.2d 90 (1970)            14-16

California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987)        6

Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997)                         12

Cleveland Board ofEducation v. Loudermill, 470 U.S. 532,
      105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)                                   16

Eddings v. Oklahoma, 455 U.S. 104,102 S.Ct. 869, 71 L.Ed.2d 1(1982)            6

Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587,
        298S.W.2d93,96(1957)                                                  12

Fleming v. State, 376 S.W.3d 854 (Tex. App. - Fort Worth 2012)                15

Graham v. Florida, 560 U.S. _, 130 S.Ct. 2011,
     176 L.Ed.2d 825 (2010)                                        5, 7-8, 10, 16

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680,
     115L.Ed.2d836(1991)                                                       8

Heitman v. State, 815 S.W.2d681 (Tex. Crim. App. 1991)                        11

Joint AntiFascist Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624,
        95 L.Ed.2d 817 (1951 )(Frankfurter, J., concurring)                   13

Lewis v. State, 448 S.W.3d 138 (Tex. App. - Houston [14th Dist.]
        2014, pet. refd)                                                  3,9,15

Lewis andNolley v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014),
      cert, denied sub nom. Nolley v. Texas, U.S. , 135 S.Ct. 256,
      190 L.Ed.2d 190 (2014)                                                 3,9

                                          iv
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)              6

Mathews v. Eldridge, 424 U.S. 319,96 S.Ct. 893,47 L.Ed.2d 18 (1976)             13

Miller v. Alabama, _ U.S. _, 132 S.Ct. 2455,
      183 L.Ed.2d 407 (2012)                                                1-2,5,
                                                                          11-13,16

Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)          6

Morter v. State, 551 S.W.2d 715 (Tex. Crim. App. 1977)                          12

Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975)              11

Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)         5,7-8

Skipper v. South Carolina, 476 U.S. 1,106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)        6

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971)      14-16

State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1993)                           12

Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590,2 L.Ed.2d 630 (1958)              5

Wilson v. State, 348 S.W.3d 132 (Tex. App. - Houston
      [14th Dist] 2011, pet. ref d), vacated and remanded,
      Wilson v. Texas, _ U.S. _, 133 S.Ct. 108, 184 L.Ed.2d 5 (2012)             2

Wilson v. State, 2012 WL 6484718 (Tex. App. -
      Houston [14th Dist.], No. 14-09-01040-CR, December 13,2012)                2

Constitutional Provisions. Statutes, and Rules


TEX. CONST. Art. I, §13                                                      2,11

TEX. CONST. Art. I, §19                                                      3,15

TEX. GOVT. CODE §311.021 (2)                                                    12
TEX. PENAL CODE § 12.31               2

U.S. CONST. Amend. VIII         2-8,11

U.S. CONST. Amend. XIV         3, 13-16




                          VI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      COMES NOW the appellant, Herbert Ray Wilson (hereinafter "Wilson"),

through the undersigned court-appointed counsel, and respectfully requests that this

Courtgrant discretionary reviewof the decision inthis cause by the CourtofAppeals

for the Fourteenth District of Texas, for reasons set forth as follows.

                            STATEMENT OF THE CASE


      Wilson was indicted for Capital Murder, in violation of TEX. PENAL CODE

§19.03(CR II-6).1 A jury found Wilson guilty of Capital Murder). Because Wilson

was seventeen at the time of the offense, the only punishment available was

confinement for life in the Texas Department of Criminal Justice, Correctional

Institutions Division, without the possibility of parole. The district court judge

immediately assessed that punishment without conducting any evidentiary hearing on

punishment. Wilson appealed, alleging inter alia that the mandatory, and thus

automatic, sentence of life without parole violated U.S. CONST. Amend. VIII. The

Court ofAppeals affirmed the judgment, and this Court refused discretionary review.

Wilson v. State, 348 S.W.3d 132 (Tex. App. - Houston [14th Dist.] 2011, pet. refd).

       Following the decision in Miller v. Alabama,          U.S.     , 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012)(which had not been available at the time this Court refused

discretionary review), the Supreme Court granted a writ of certiorari, vacated the


       1 The clerk's record, containing court documents, is designated "CR" herein. The court
reporter's record is designated "RR" with Roman numerals for volume numbers.
sentence, and remanded for further proceedings. Wilson v. Texas,       U.S.    , 133

S.Ct. 108,184 L.Ed.2d 5 (2012). The Court of Appeals then remanded this cause to

the district court for a new punishment determination. Wilson v. State, 2012 WL

6484718 (Tex. App. - Houston [14lh Dist.], No. 14-09-01040-CR, December

13,2012).

      While this cause was pending in the state district court, the Texas Legislature

addressed the need for revision ofTEX. PENAL CODE § 12.31 in the wake ofMiller

v. Alabama. In the regular session a bill promoted by the governor proposed that

there be a mandatory (and thus automatic) sentence of life imprisonment, with the

possibility of parole after forty years. A competing proposal to provide for a range

of punishment was defeated in committee. Time ran out in the general session, and

the governor made the automatic life with parole proposal one of the items to be

included in a called special session. This time the proposal passed, and the new

statute was made applicable to all cases still pending in various stages of direct

appeal.

      Meanwhile Wilson argued in the district court that an automatic sentence of

life, with the possibility of parole, still presented an Eighth Amendment problem,

given that there was no mechanism for consideration of mitigating evidence, for

individualized sentencing, or even to preserve evidence for future use in parole

proceedings. These same problems also violated TEX. CONST. Art. I, §13, Wilson
                                         2
argued. Wilson further argued that the denial of a hearing violated the due process

clause ofU.S. CONST. Amend. XIV and the counterpart guarantee of"due course of

law" under TEX. CONST. Art. I, §19. The district court judge at least let Wilson

memorialize someofthe possible mitigating evidence ina briefhearing,butthejudge

was helpless to give such evidence any weight. As the statute required, the district

court judge to assess punishment at life imprisonment, with no possibility of parole

until at least forty years had elapsed. Wilson gave notice of appeal.

      The Court of Appeals affirmed the judgment and sentence in a memorandum

opinion. The Court of Appeals considered the result to be dictated by this Court's

decision in Lewis andNolley v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014), cert,

deniedsubnom. Nolleyv. Texas, _\J.S._, 135 S.Ct. 256,190 L.Ed.2d 190(2014)

and by the Court ofAppeals' decision in Lewis v. State, 448 S.W.3d 138 (Tex. App.

- Houston [14,h Dist.] 2014, pet. refd).2

                  STATEMENT OF PROCEDURAL HISTORY


      The Court of Appeals rendered its decision and delivered its memorandum

opinion on April 16,2015. No motion for rehearing was filed. This Court extended

the time for filing a petition for discretionary review until June 17,2015.

                             QUESTIONS FOR REVIEW




      2 A petition for writ of certiorari was filed by Jor'dan Lewis in May, 2015. It is pending
as Number 1407-14 in the Supreme Court.
      This petition presents four questions for review:

      (1)   Did the Court of Appeals err in holding that the mandatory and
            automatic life sentence, with parole eligility in forty years, did not
            violate U.S. CONST. Amend. VIII?

      (2)   Did the Court of Appeals err in holding that the mandatory and
            automatic life sentence, with parole eligibility in forty years, did not
            violate TEX. CONST. Art. I, §13?

      (3)   Did the Court of Appeals err in holding that the mandatory and
            automatic life sentence, with parole eligibility in forty years, did not
            violate the due process clause of U.S. CONST. Amend. XIV?

      (4)   Did the Court of Appeals err in holding that the mandatory and
            automatic life sentence, with parole eligibility in forty years, did not
            violate the due course of law provision of TEX. CONST. Art. I, §19?

                                  ARGUMENT


               REASONS FOR REVIEW OF QUESTION ONE

      Did the Court of Appeals err in holding that the mandatory and
      automatic life sentence, with parole eligibility in forty years, did not
      violate U.S. CONST. Amend. VIII?


                    A. Core Eighth Amendment Principles

      The Eighth Amendment to the United States Constitution states:

      Excessive bail shall not be required, nor excessive fines imposed, nor
      cruel and unusual punishments inflicted.

The "cruel and unusual punishments" clause applies to state court cases through the

due process clause of U.S. CONST. Amend. XIV. Interpretation of the Eighth

Amendment has been guided by some key principles developed in case law, including
two which are particularly relevant here: (1) the "evolving standards" doctrine, and

(2) the importance of having a punishment factfinder consider mitigating evidence.

                              (1) Evolving Standards

      Application ofthe Eighth Amendment is guided by "the evolving standards of

decency which mark the progress ofa maturing society." Trop v. Dulles, 356 U.S. 86,

101,78 S.Ct. 590,598,2 L.Ed.2d 596 (1958). Three concurringjustices in Graham

v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) observed:

      Society changes. Knowledge accumulates. We learn, sometimes, from
      our mistakes. Punishments that did not seem cruel and unusual at one
      time may, in the light of reason and experience, be found cruel and
      unusual at a later time ...


      Graham demonstrated that evolving standards may be expressed in the

expansion of concepts from one application to another. In Graham a body of

scientific knowledge concerning how juveniles differed from adults was extended

from a case where a juvenile was given the death penalty, i.e. Roper v. Simmons, 543

U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), to a case where a sentence of life

imprisonment without parole was assessed. That same body of scholarship then

contributed to an extension of Graham, a non-homicide case, to a homicide case in

Miller v. Alabama. The next stepwhichWilson advocates is reallyjust an application

of the lessons of Miller.
                 (2) The Importance of Having a Punishment
                    Factfinder Consider Mitigating Factors

      The Supreme Court has recognized, in the context ofdeath-penalty cases, that

a jury must have a vehicle for consideration of mitigating circumstances. Smith v.

Spisak, 558 U.S. 139, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010), considering the

application of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384

(1988) to an Ohio death-penalty case, commented:

      The rule the Court set forth in Mills is based on two well-established
      principles. First, the Constitution forbids imposition ofthe death penalty
      if the sentencing judge or jury is "precluded from considering, as a
      mitigating factor, any aspect of a defendant's character and any
      circumstances of the offense that the defendant proffers as a basis for a
      sentence less than death." 486 U.S., at 374, 108 S.Ct. 1860 [quoting
      Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1
      (1982), in turn quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct.
      2954, 57 L.Ed.2d 973 (1978) (plurality opinion)]. Second, the
      sentencing judge or jury "may not refuse to consider or be precluded
      from considering 'any relevant mitigating evidence.'" Mills, 486 U.S.,
      at 374-3 75,108 S.Ct. 1860 [quoting Skipper v. South Carolina, 476 U.S.
      1,4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), in turn quoting Eddings,
      supra, at \\4, 102 S.Ct. 869.]

The concept of individualized mitigating evidence was articulated in Penry v.

Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989):

      Underlying Lockett and Eddingsis the principle that punishment should
      be directly related to the personal culpability of the criminal defendant.
      If the sentencer is to make an individualized assessment of the
      appropriateness of the death penalty, "evidence about the defendant's
      background and character is relevant because ofthe belief, long held by
      society, that defendants who commit criminal acts that are attributable
      to a disadvantaged background, or to emotional and mental problems,
      may be less culpable than defendants who have no such excuse."
      California v. Brown, 479 U.S. 538, 547, 107 S.Ct. 837, 93 L.Ed.2d 934
      (1987).

      A characteristic of a mandatory sentencing scheme, which allows only one

predetermined punishment following conviction for a particular crime, is that the

punishment becomes automatic. Neither the judge nor the jury can consider further

mitigating evidence. The judge in Wilson's case on remand actually did let Wilson

make a briefrecord showing that there was potential mitigating evidence, but with or

without such evidence, the judge could do nothing except order a life sentence.

                      B. From Roper to Graham to Miller

      Roper v. Simmons, using a "categorical" analysis, held that assessment of the

death penalty for an offender who committed a homicide when he or she was a

juvenile violated the Eighth Amendment. The categorical approach in Roper rested

largely on the conclusion that there were mitigating factors so consistently

characteristic of youth that it could be said, across the board, that juveniles were

inherently less "morally culpable" than adults, at least to the extent that the death

penalty would be an excessive punishment. See Roper, 543 U.S. at 569-570, 125

S.Ct. at 1195. Graham took the empirical concepts recognized in Roperand applied

them to a case where the death penalty did not apply, using a categorical analysis.

      In Miller there was a significant shift in analysis, moving beyond a categorical

analysis to an approach whereby individualized mitigating factors also were to be

                                          7
considered. Miller stated that life without parole, as applied to a juvenile,

"implicate^] two strands of precedent reflecting our concern with proportionate

punishment." The first "strand" consisted ofcases, such as Roper and Graham, which

"adopted categorical bans on sentencing practices based on mismatches between the

culpability of a class of offenders and the severity of the penalty." The second

"strand" consisted of "cases [where] we have prohibited mandatory imposition of

capital punishment, requiring that sentencing authorities consider the characteristics

of a defendant and the details of his offense before sentencing him to death." That

"strand" consists of cases such as Lockett, Eddings, Penry, and Mills. It was "the

confluence of these two lines of precedent," Miller declared, that "leads to the

conclusion that mandatory life-without-parole sentences for juveniles violate the

Eighth Amendment."

      This "confluence" was a major change in the Supreme Court's thinking. It

introduced the idea that consideration of mitigating factors relating to an individual

defendant was an Eighth Amendment requirement in a case where the death penalty

was not assessed (and could not be assessed, due to Roper). Miller departed from

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991),

wherein the Supreme Court declined to extend the Eighth Amendment right to

considerationofmitigatingevidenceto non-death penaltycases.The majorityopinion

in Miller found that Harmelin was distinguishable because Harmelin did not deal

                                          8
with a child.


                    C. The Flawed Texas Response to Miller

      As noted earlier, the Texas Legislature responded to Miller only by jettisoning

the preclusion of parole. This Court held in Lewis and Nolley that the new statute

applied to defendants in the appellate pipeline when the new statute was enacted.

Noting that Miller concerned a life sentence without the possibility of parole, this

Court rejected the view that an automatic, mandatory life sentence which made parole

a possibility only in the distant future was incompatible with Miller.

      When the Court ofAppeals again took up Wilson's case, it looked to Lewis and

Nolley and to its decision in Lewis v. State, supra (Mem. Opin., pp. 3-4). The Court

of Appeals construed Miller as only barred a juvenile tried as an adult from being

sentenced to life without parole. Like this Court in Lewis andNolley, the Court of

Appeals was simply following the current statute, which is the real source of the

problem.

      A focus on whether or not parole becomes available, and when that occurs,

misses the key point of the second strand of Miller. Under the current Texas law,

there is no mechanism whereby a judge or jury can hear mitigating evidence -

whether the kind of universal concerns discussed in Roper or individualized

mitigating evidence - and then take it into account to arrive at a punishment, chosen

from a punishment range, which is properly tailored to the individual defendant.

                                          9
                 D. The Illusory Benefit of Parole in Forty Years

      There is less to the availability ofparole, forty or more years in the future, than

meets the eye. Graham, 130 S.Ct. at 2032, observed:

      Life in prison without the possibility of parole gives no chance for
      fulfillment outside prison walls, no chance for reconciliation with
      society, no hope. Maturity can lead to that considered reflection which
      is the foundation for remorse, renewal, and rehabilitation. A young
      person who knows that he or she has no chance to leave prison before
      life's end has little incentive to become a responsible individual.

Graham continued:


      A State need not guarantee the offender eventual release, but if it
      imposes a sentence of life it must provide him or her with some realistic
      opportunity to obtain release before the end of that term.

Id. at 2034. Other portions of Graham indicated that a juvenile must have a chance

to "demonstrate growth and maturity." Id. at 2029-2030.

      In light of the foregoing concerns in Graham, a parole review in the distant

future is little better than no parole at all. There is no guarantee of parole on the first

review, the second review, or on any review before an inmate dies. Furthermore,

what type of "fulfillment outside prison walls" would be possible for someone who

had spent his entire adult life, up to that point, in prison?

       Worst ofall, however, is the fact that the mere possibility of parole, forty years

inthe future, may be meaningless. Much of the evidence which might help an inmate

obtain parole will not be available forthe parole board's consideration because it was

                                            10
not gathered at the time of trial. Examples of evidence which might no longer be

available in the distant future could include testimony from family members, friends,

teachers, coaches, ministers, and others who know a defendant. And school and

mental health records. Forty years after the trial, the likelihood of being able to

recreate such evidence as part of the parole process is very poor. Only the utilization

of a punishment hearing, at the time of trial, would make a difference.

               REASONS FOR REVIEW OF QUESTION TWO

      Did the Court of Appeals err in holding that the mandatory and
      automatic life sentence, with parole eligibility in forty years, did not
      violate TEX. CONST. Art. I, §13?

      The punishment assessed also violated the Eighth Amendment's Texas

constitutional counterpart, namely TEX. CONST. Art. I, §13. The Texas Constitution

may provide greater protection than the United States Constitution. Heitman v. State,

815 S.W.2d 681 (Tex. Crim. App. 1991), citing Oregon v. Hass, 420 U.S. 714, 95

S.Ct. 1215,43 L.Ed.2d 570 (1975), pointed out that "a state is free as a matter of its

own law to impose greater restrictions on police activity than those the Supreme

Court holds to be necessary upon federal constitutional standards."/*/, at 683. What

was said in Heitman about "police" (executive department) action also applies to

legislation.

      The literal text of TEX. CONST. Art. I, §13 provides a reason for

recommending relief under Texas law, even if relief were not justified under the

                                          11
Eighth Amendment. This article reads in pertinent part: "Excessive bail shall not be

required, nor excessive fines imposed, nor cruel or unusual punishment inflicted...."

Thus the Texas Constitution refers to "cruel or unusual" punishment, rather than

"cruel and unusual" as used in the Eighth Amendment. The use of"or" in the Texas

Constitution means a sentence may be unconstitutional if it is either cruel or unusual.

      The Court of Appeals cited Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim.

App. 1997) as establishing that this Court had never found the textual

differencebetween the two constitutions to be significant (Mem. Opin., pp. 4-5). This

Court can do so now, however, by looking to statutory law concerning principles of

construction for guidance. A provision of the "Code Construction Act," found in

TEX. GOVT. CODE §311.021(2), states that: "In enacting a statute, it is presumed

that... the entire statute is intended to be effective." Furthermore, in State v. Hardy,

963 S.W.2d 516, 520 (Tex. Crim. App. 1993), this Court stated:

      We generally presume that every word in a statute has been used for a
      purpose and that each word, phrase, clause, and sentence should be
      given effect if reasonably possible. Morter v. State, 551 S.W.2d 715,
      718 (Tex. Crim. App. 1977), quoting Eddins-Walcher Butane Co. v.
      Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957).

Every word of the Texas Constitution - even the simple word "or" - merits the same

respect as the words of a statute.

      Most persons would believe it is "cruel" if imposition of a life sentence on a

juvenile occurred without any consideration of either the factors common to all

                                           12
teenagers, or without any consideration of particular mitigating circumstances. A

mandatory, automatic punishment also is unusual.        Texas law has only three

situations with such fixed punishments. Thus there is a sound textual basis in the

Texas Constitution for striking down the mandatory sentence.

      REASONS FOR REVIEW OF QUESTIONS THREE AND FOUR

      Did the Court of Appeals err in holding that the mandatory and
      automatic life sentence, with parole eligibility in forty years, did not
      violate the due process clause of U.S. CONST. Amend. XIV?

      Did the Court of Appeals err in holding that the mandatory and
      automatic life sentence, with parole eligibility in forty years, did not
      violate the due course of law provision ofTEX. CONST. Art. I, §19?

      The last two questions can be considered together.

                   A. The "Due Process Right to Be Heard"

      While the Eighth Amendment was the focus in Miller, an alternative reason for

not applying the amended Texas statute can be found in the due process clause of

U.S. CONST. Amend. XIV. The Supreme Court has long recognized that, even in

civil matters where only property rights (not personal liberty) are involved, due

process requires a fair opportunity for a party to be heard. Mathews v. Eldridge, 424

U.S. 319, 96 S.Ct. 893,47 L.Ed.2d 18 (1976) stated:

      The "right to be heard before being condemned to suffer grievous loss
      ofany kind, even though it may not involve the stigma and hardships of
      a criminal conviction, is a principle basic to our society." Joint Anti-
      Fascist Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95
      L.Ed.2d 817 (1951 )(Frankfurter, J., concurring). The fundamental
      requirement of due process is the opportunity to be heard "at a

                                         13
      meaningful time and in a meaningful manner."Armstrong v Manzo, 380
      U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965).

Mathews implies that "the stigma and hardships of a criminal conviction" would

present an even more compelling reason for assuring a "right to be heard."

      The due-process requirement of a fair opportunity to be heard is particularly

applicable with respect to statutes with mandatory provisions. In Stanleyv. Illinois,

405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971) and Bell v. Burson, 402 U.S.

535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1970), the Court held that there had to be some

mechanism whereby evidence which could justify an exception to a mandatory

regulatory provision could be presented and considered.

      InStanleyan unwed father was denied an opportunity to dispute the application

of an Illinois statute which automatically made the children of unwed parents wards

ofthe state upon the death oftheir mother. That amounted to a statutory presumption

that Stanley was an unfit parent, regardless of what facts Stanley might have

provided. The Supreme Court held that due process required that Stanley be given

a hearing on the factual question ofhis fitness for a parent. The Texas sentencing law

similarly rests on a presumption that mitigating facts do not matter.

      In Bell a licensed but uninsured driver in Georgia had been denied an

opportunity to contest the suspension of his license, based on a statute which made

suspension automatic for uninsured motorists after an accident, regardless ofwho was


                                          14
at fault, or to what degree. The Supreme Court, drawing upon earlier case law,

declared that a driver was entitled to a hearing which was "meaningful" and

"appropriate to the nature of the case." 402 U.S. at 541-542.

                   B. The Texas Counterpart to Due Process

      The Texas constitutional counterpart of Fourteenth Amendment due process

is the "due course of the law" provision in TEX. CONST. Art. I, §19. That section

provides: "No citizen of this State shall be deprived of life, liberty, property,

privileges, or immunities, or in any manner disfranchised, except by the due course

of the law of the land." Again, the wording is a little bit different, as the Texas

Constitution guarantees "the due course of the law of the land."

        In Lewis, supra, the Court ofAppeals concluded that the Texas constitutional

protection is coextensive with that of the Fourteenth Amendment. Fleming v. State,

376 S.W.3d 854, 857 (Tex. App. - Fort Worth 2012) stated that "this court and the

majority ofTexas courts ofappeals" held that view. Accordingly, the finding ofdue-

process violations in Stanley and Bell are persuasive, though not mandatory, authority

for the conclusion that a mandatory statute which provides no "meaningful

opportunity" for consideration of individual mitigating circumstances would violate

Art. I, §19.

                         C. The Court of Appeals' Error

      The Court ofAppeals echoed its earlier conclusion in Lewis, supra that Stanley

                                          15
and Bell were distinguishable (Mem. Opin., pp. 4-5). If anything, the distinction

between civil or administrative proceedings, on the one hand, and a Capital Murder

case, on the other, cuts in favor of Wilson. In the civil realm, the scope of the "right

to be heard" focuses on whether a "pre-deprivation" hearing is required or whether

a "post-deprivation" hearing suffices. See Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 105 s.cT. 1487, 84 L.Ed.2d 494 (1985). If the right at

issue is personal freedom, confinement in prison definitely is a "deprivation." A

punishment hearing at trial would be a "pre-deprivation" review, while a parole

hearing almost four decades later clearly is "post-deprivation."

      The position taken in Stanley and Bell, based on the Fourteenth Amendment,

dovetails with the statements in Grahamand Miller, based on the Eighth Amendment,

about the need for an effective mechanism for presentation and consideration of

mitigating evidence. This is an instance in which the various constitutional rights,

like a team of strong horses, should pull together.




                                           16
                            PRAYER FOR RELIEF


      Wherefore the appellant prays that discretionary review be granted as to all

questions presented.

                                      Respectfully submitted,

                                      /s/ Danny K. Easterling
                                      Danny K. Easterling
                                      Easterling & Easterling, PC
                                      Texas Bar No. 06362100
                                       1018 Preston, 6lh Floor
                                      Houston, TX 77002
                                      Tel.: (713)228-4441
                                      E-mail: eaepc@swbell.net

                                       Counsel for Appellant

                       CERTIFICATE OF COMPLIANCE


      I certify that this petition was prepared using Wordperfect with fourteen-point

font, and twelve-point font for footnotes, in Times New Roman typeface. Omitting

the portions not included for the word limit, this petition contains 3410 words.

                                       Isi Dannv K. Easterling
                                       Danny K. Easterling




                                         17
                             CERTIFICATE OF SERVICE


      I certify that copies of this petition have be en served on counsel for the State

at the following addresses on June 17,2015:

      Harris County District Attorney's Office       Hon. Lisa McMinn
      Appellate Division                             State Prosecuting Attorney
      Attention: Bridget Holloway                    P.O. Box 12405
      1201 Franklin, Suite 600                       Austin, TX 78711
      Houston, TX 77002

                                               /s/ Dannv K. Easterling
                                               Danny K. Easterling




                                          18
Affirmed and Memorandum Opinion filed April 16, 2015.




                                       In The


                    iffnurtEentlj (ftnurt of Appeals

                               NO. 14-14-00015-CR


                     HERBERT RAY WILSON, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 174th District Court
                            Harris County, Texas
                         Trial Court Cause No. 1133069


                 MEMORANDUM                       OPINION



      Appellant Herbert Ray Wilson was convicted of capital murder and
sentenced to life in prison with the possibility of parole. He challenges his sentence
on the ground that the denial of an individualized sentencing hearing violates the
United States and Texas Constitutions. We affirm.
                     Factual and Procedural Background

      Appellant was convicted of capital murder and sentenced to life in prison
without the possibility of parole. On original submission, appellant argued that (1)
his confession was involuntary, and (2) a mandatory sentence of life without the
possibility of parole violated the Eighth Amendment because he was a juvenile at
the time of the offense. This court affirmed appellant's conviction and sentence.
Wilson v. State, 348 S.W.3d 32, 44 (Tex. App.—Houston [14th Dist.] 2011, pet.
refd). On petition for writ of certiorari, the United States Supreme Court vacated
the judgment and remanded the case for further consideration in light of Miller v.
Alabama, 567 U.S. —, 132 S. Ct. 2455 (2012). Wilson v. Texas, — U.S. —, 133 S.
Ct. 108, 108 (2012). In view of Miller, this court remanded the case to the trial
court for a new punishment hearing. Wilson v. State, No. 14-09-01040-CR, 2012
WL 6484718, at *2 (Tex. App.—Houston [14th Dist.] Dec. 13, 2012, no pet.) (not
designated for publication). While the case was on remand, the legislature
amended Texas Penal Code section 12.31(a) to read as follows:

      (a)    An individual adjudged guilty of a capital felony in a case in
      which the state seeks the death penalty shall be punished by
      imprisonment in the Texas Department of Criminal Justice for life
      without parole or by death. An individual adjudged guilty of a capital
      felony in a case in which the state does not seek the death penalty
      shall be punished by imprisonment in the Texas Department of
      Criminal Justice for:
      (1)     life, if the individual committed the offense when younger than
       18 years of age; or
      (2)     life without parole, if the individual committed the offense
      when 18 years of age or older.
Tex. Penal Code Ann. § 12.31(a) (West Supp. 2014).' On December 12, 2013, the

       1The 2013 Session Laws amending this section in response to Miller v. Alabama include
a savings clause making it applicable to cases pending and on appeal when the provision went
                                             2
trial court sentenced appellant to confinement in the Institutional Division of the
Texas Department of Criminal Justice for life with the possibility of parole in 40
years. See Tex. Gov't Code Ann. § 508.145(b) (West Supp. 2014). Appellant
timely appealed.

                                          Analysis


      In four issues, appellant contends that Texas Penal Code section 12.31(a)(1)
violates both the United States and Texas Constitutions because it does not provide
for individualized sentencing hearings. We consider each issue in turn.

A.    The denial of an individualized sentencing hearing did not violate the
      Eighth Amendment.

      In his first issue, appellant claims that under the Eighth Amendment, a
juvenile offender is entitled to an individualized sentencing hearing before being
assessed a mandatory sentence of life imprisonment with the possibility of parole.
Under Miller, a sentencing scheme for juvenile offenders that mandates life in
prison without the possibility of parole violates the Eighth Amendment. 132 S.Ct.
at 2469. Noting that Miller did not forbid mandatory sentencing schemes per se,
the Court of Criminal Appeals refused to extend the holding in Miller to situations
identical to the one presented here: a mandatory sentence for a juvenile offender of
life in prison with the possibility of parole. Lewis v. State, 428 S.W.3d 860, 863
(Tex. Crim. App. 2014); see Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim.
App. 2014) (per curiam); Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.—
Houston [14th Dist.] 2014, pet. refd). The court held that juvenile offenders
sentenced to life imprisonment with the possibility of parole are not entitled to


into effect on July 22, 2013. Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3, 2013 Tex. Gen.
Laws 5020, 5020-21; see Lewis v. State, 428 S.W.3d 860, 863 n.6 (Tex. Crim. App. 2014).
individualized sentencing hearings. Lewis, 428 S.W.3d at 864. We are bound in
criminal cases to follow decisions of the Court of Criminal Appeals. Lewis, 448
S.W.3d at 146. Appellant's first issue is overruled

B.    The denial of an individualized sentencing hearing did not violate the
      Due Process Clause.

      In his second issue, appellant claims that under the Due Process Clause, a
juvenile sentenced to life with the possibility of parole is entitled to an
individualized sentencing hearing. A number of Texas Courts of Appeals,
including this one, have determined mandatory sentencing statutes generally do not
violate due process. Id. at 147; see e.g., Laird v. State, 933 S.W.2d 707, 715 (Tex.
App.—Houston [14th Dist.] 1996, pet. refd) (mandatory life sentence for capital
murder did not violate due process); Cardona v. State, 768 S.W.2d 823, 827 (Tex.
App.—Houston [14th Dist.] 1989, no pet.) (mandatory sentence for delivery of
cocaine did not violate due process). Because appellant offers no reason for
deviating from this line of cases, we overrule his second issue.

C.    The denial of an individualized sentencing hearing did not violate the
      "cruel or unusual punishment" prohibition of article I section 13 of the
      Texas Constitution.

      In his third issue, appellant claims that under the "cruel or unusual
punishment" prohibition of article I section 13 of the Texas Constitution, a juvenile
offender is entitled to an individualized sentencing hearing before being assessed a
mandatory sentence of life imprisonment with the possibility of parole. See Tex.
Const, art. I, § 13. Appellant asserts that rights under article I section 13 of the
Texas Constitution should be interpreted more broadly than rights under the Eighth
Amendment. In support of this proposition, appellant notes that article I section 13
prohibits "cruel or unusual punishment" while the Eighth Amendment prohibits
"cruel and unusual punishment." The Court of Criminal Appeals has rejected the
distinction appellant proposes. See Cantu v. State, 939 S.W.2d 627, 639 (Tex.
Crim. App. 1997). Therefore, an analysis of this issue under the Texas Constitution
is identical to an analysis under the United States Constitution. As we have
previously determined that appellant is not entitled to an individualized sentencing
hearing under the Eight Amendment, we overrule his third issue.

D.    The denial of an individualized sentencing hearing did not violate article
      I section 19's "due course of law" guarantee.

      In his fourth issue, appellant claims that under Texas Constitution article I
section 19's "due course of law" guarantee, a juvenile sentenced to life with the
possibility of parole is entitled to an individualized sentencing hearing. We have
already concluded that the denial of an individualized hearing did not violate
appellant's due process rights under the Fourteenth Amendment. Texas courts
consistently have found no distinction in this context between the rights afforded
by the "due course of law" clause of article I section 19 and those afforded by the
Due Process Clause of the Fourteenth Amendment. See Lewis, 448 S.W.3d at 147.
Appellant offers no discernable reason for finding a distinction in this case.
Accordingly, we overrule this issue.

                                  Conclusion


      Having overruled each of appellant's issues on appeal, we affirm the trial
court's judgment.


                                       /s/   Marc W. Brown
                                             Justice



Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
                                                                       April 16,2015




                                 JUDGMENT

                 ®l|c Jffnurteentlj Cnurt ai Appeals
                     HERBERT RAY WILSON, Appellant

NO. 14-14-00015-CR                          V.

                       THE STATE OF TEXAS, Appellee




     This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.

      We further order this decision certified below for observance.
