Affirmed and Memorandum Opinion filed November 22, 2011.




                                        In The

                      Fourteenth Court of Appeals

                                  NO. 14-10-01119-CR

                      BRADLEY JARED BARTON, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 176th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1206429



                        MEMORANDUM OPINION

      A jury convicted appellant Bradley Jared Barton of capital murder, and the trial
court imposed a mandatory sentence of life imprisonment without parole under Section
12.31(a)(2) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.31(a)(2) (Vernon
2011). Appellant challenges his conviction on the ground that the trial court improperly
excluded a witness’s testimony about whether the murder could have been anticipated. In
five additional issues, appellant argues that his sentence violates the United States and
Texas Constitutions. We affirm.
                                            BACKGROUND

        Appellant was fired from his job at a Wing Zone restaurant after three days of
work. A few weeks later on January 23, 2009, two masked men entered the Wing Zone
and robbed it at gunpoint. One of the robbers, Lloyd McClain, shot and killed an
employee, the complainant Miguel Figueroa.

        Appellant had asked McClain and Maurquice Cansler to rob the Wing Zone.
During the morning of January 23, appellant purchased a box of bullets from a gun range.
He loaded the murder weapon and gave it to McClain and Cansler. He drove the two
men to the Wing Zone on the night of January 23. Appellant entered the restaurant about
15 minutes before the robbery to ―case‖ the scene. He also served as the getaway driver
and received $300 in proceeds from the robbery.

        Appellant was indicted for capital murder, and a jury convicted him. 1 See Tex.
Penal Code Ann. § 19.03(a)(2) (Vernon 2011). Because the State did not seek the death
penalty, appellant received a mandatory sentence of life without parole.                         See id.
§ 12.31(a)(2).

                                     EXCLUSION OF EVIDENCE

        In his first issue, appellant argues that the trial court erred by excluding evidence
of McClain’s opinion that ―the shooting could not have been anticipated by the
appellant.‖ The State contends that appellant has failed to preserve error, the issue should
be overruled on the merits, and any error was harmless. We agree with the State that the
issue was not preserved.

        Appellant questioned McClain at trial:

        APPELLANT: . . . So why would — why would you-all go across the
                   street to where you could be seen versus that pitch dark
                   spot where you can’t be seen?

        1
           The charge authorized the jury to convict appellant based on either accomplice or co-conspirator
liability. See Tex. Penal Code Ann. § 7.02(a)(2), (b) (Vernon 2011).
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       MCCLAIN:          Just — it wasn’t — it wasn’t my — it really didn’t matter
                         to me at the time. I just — trying to, like I say, get in and
                         get out, man.

       APPELLANT: And could it have — could anybody have anticipated what
                  you were about to do?

       THE STATE:        I’m going to object, speculation.

       THE COURT:        Sustained.

McClain never responded to the question, nor did appellant make an offer of proof.

       An appellant may not complain on appeal about the erroneous exclusion of
evidence unless the appellant made an offer of proof in the trial court or the substance of
the evidence was apparent from the context. Tex. R. Evid. 103(a)(2). ―The primary
purpose of an offer of proof is to enable an appellate court to determine whether the
exclusion was erroneous and harmful.‖ Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim.
App. 2009) (quotation omitted).       Appellant failed to preserve error for our review
because he did not make an offer of proof, and McClain’s supposed opinion that ―the
shooting could not have been anticipated by the appellant‖ was not apparent from the
context. We decline to speculate about McClain’s answer to the question.

       Appellant’s first issue is overruled.

                      CONSTITUTIONALITY OF SECTION 12.31(a)(2)

       In his second, third, and sixth issues, appellant argues that mandatory punishment
of life without parole violates the Cruel and Unusual Punishment Clause of the Eighth
Amendment to the United States Constitution, see U.S. Const. amend VIII; the Cruel or
Unusual Punishment Clause of the Texas Constitution, see Tex. Const. art. I, § 13; and
the Separation of Powers Section of the Texas Constitution, see Tex. Const. art. II, § 1.
The State contends appellant failed to preserve error and that the issues should be
overruled on the merits. We agree with the State on both counts.



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        Appellant failed to preserve error for each of his issues related to the facial
constitutionality of Section 12.31(a)(2) because he made no complaint to the trial court.
See Tex. R. App. P. 33.1(a) (―As a prerequisite to presenting a complaint for appellate
review, the record must show that . . . the complaint was made to the trial court . . . .‖);
Karanev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (―[A] defendant may not
raise for the first time on appeal a facial challenge to the constitutionality of a statute.‖);
Wilkerson v. State, 347 S.W.3d 720, 722, 724 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref’d) (no error preserved for challenges to Section 12.31(a)(2) based on the Cruel
and Unusual Punishment Clause of the United States Constitution, the Cruel or Unusual
Punishment Clause of the Texas Constitution, or the Separation of Powers Section of the
Texas Constitution).2

        Further, binding precedent would require us to overrule these three issues on the
merits. See Wilkerson, 347 S.W.3d at 723, 725 (overruling these three issues on the
merits); see also Wilson v. State, 348 S.W.3d 32, 42–44 (Tex. App.—Houston [14th
Dist.] 2011, pet. filed) (holding that a mandatory sentence of life without parole for a
juvenile convicted of capital murder did not violate the Cruel and Unusual Punishment
Clause of the United States Constitution, the Cruel or Unusual Punishment Clause of the
Texas Constitution, or the Separation of Powers Section of the Texas Constitution).

        Accordingly, appellant’s second, third, and sixth issues are overruled.

            CONSTITUTIONALITY OF A SENTENCE OF LIFE WITHOUT PAROLE
              FOR A CO-CONSPIRATOR CONVICTED OF CAPITAL MURDER

        In his fourth and fifth issues, appellant argues that a sentence of life without parole
violates the Cruel and Unusual Punishment Clause of the United States Constitution and
the Cruel or Unusual Punishment Clause of the Texas Constitution because such a
sentence is disproportionate for a conviction of capital murder based on co-conspirator

        2
          Given the broad holding in Karanev and our specific holding in Wilkerson, we reject appellant’s
argument that he should be excepted from making a complaint in the trial court due to ―futility‖ or the
bare assertion that trial court judges are unlikely to hold Section 12.31 unconstitutional.
                                                   4
criminal responsibility. The State contends appellant failed to preserve error and that the
issues should be overruled on the merits. We agree with the State on both counts.

       Appellant was required to first make a complaint in the trial court to preserve error
for our review. See Tex. R. App. P. 33.1(a); see also Battle v. State, 348 S.W.3d 29, 30–
31 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (no error preserved for a complaint
that the co-conspirator’s conviction for capital murder violated the Eighth Amendment
because it was disproportionate). Appellant did not complain about the proportionality of
his sentence in the trial court, and thus, he did not preserve error for our review. See
Battle, 348 S.W.3d at 30–31.

       Further, binding precedent would require us to overrule his fourth issue premised
on the Cruel and Unusual Punishment Clause of the United States Constitution. See id. at
32 (―[A] life sentence without the possibility of parole for a capital murder conviction
based on co-conspirator liability does not violate the Eighth Amendment.‖).

       Appellant contends that we should interpret the Cruel or Unusual Punishment
Clause of the Texas Constitution to provide greater protection for criminal defendants
than the protections offered by the similar provision in the United States Constitution
because the Texas Constitution uses the word ―or‖ while the United States Constitution
uses the word ―and.‖ The Court of Criminal Appeals has rejected this argument. See
Williams v. State, 937 S.W.2d 479, 492 (Tex. Crim. App. 1996) (citing Anderson v. State,
932 S.W.2d 502, 509–10 (Tex. Crim. App. 1996)).3

       Even if we assume solely for argument’s sake that the Texas Constitution protects
against punishments that are merely ―unusual‖ — rather than both ―cruel‖ and ―unusual‖
— as appellant suggests, he has failed to show how a sentence of life without parole is
―unusual‖ for a co-conspirator convicted of capital murder. See Anderson, 932 S.W.2d at
510 (finding that the death penalty was not ―unusual‖ under the Texas Constitution

       3
          But see Anderson, 932 S.W.2d at 509 (―We do not decide whether the state constitutional
provision is broader than its counterpart.‖).
                                               5
because the Court of Criminal Appeals ―has never in its history held the death penalty to
constitute cruel and unusual punishment under the Texas Constitution‖); see also
Bergara v. State, No. 14-07-00938-CR, 2009 WL 2476513, at *9 (Tex. App.—Houston
[14th Dist.] Aug. 13, 2009, pet. ref’d) (mem. op., not designated for publication) (holding
that a mandatory sentence of life without parole for a co-conspirator convicted of capital
murder ―does not constitute cruel and unusual punishment under . . . the Texas
Constitution‖); Cienfuegos v. State, 113 S.W.3d 481, 496 (Tex. App.—Houston [1st
Dist.] 2003, pet. ref’d) (same).

       Accordingly, appellant’s fourth and fifth issues are overruled.

                                      CONCLUSION

       Having overruled all of appellant’s issues, we affirm the trial court’s judgment.




                                          /s/       William J. Boyce
                                                    Justice



Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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