                                                                                    PD-1006-15
                             PD-1006-15                            COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 8/10/2015 11:28:06 AM
                                                                    Accepted 8/11/2015 4:08:44 PM
                                                                                    ABEL ACOSTA
                               NO.                                                          CLERK

                                     IN THE


                     COURT OF CRIMINAL APPEALS
                                  OF TEXAS
                                AUSTIN, TEXAS


                        EX PARTE TERRANCE HENRY
                                     Appellant

                                        v.

                             THE STATE OF TEXAS,
                                   Appellee


                             APPELLANT’S
                  PETITION FOR DISCRETIONARY REVIEW

                              No. 05-14-00197-CR
                            COURT OF APPEALS
                      FOR THE FIFTH DISTRICT OF TEXAS
                             AT DALLAS, TEXAS


                    On appeal from Cause Number F-09-0959736-W
                         in the 363RD Criminal District Court
                                of Dallas County, Texas
                       Honorable Tracy Holmes, Judge Presiding

                                  JOHN TATUM
                         990 SOUTH SHERMAN STREET
                          RICHARDSON, TEXAS 75081
                                  (972) 705-9200
                                BAR NO. 19672500
                              jtatumlaw@gmail.com
                          ATTORNEY FOR APPELLANT
August 11, 2015
              IDENTITIES OF PARTIES AND COUNSEL

HONORABLE TRACY HOLMES                JUDGE PRESIDING
    133 N. Riverfront Blvd            363rd DISTRICT COURT
    Frank Crowely Courts Bldg.        OF DALLAS COUNTY, TEXAS
    Dallas, Texas 75207

TERRANCE HENRY                        PETITIONER
    TDCJ# 01742586
    Clements Unit
    9601 Spur 591
    Amarillo, Texas 79107-9606

HONORABLE JOHN TATUM                  ATTORNEY FOR PETITIONER
    990 S. Sherman St.
    Richardson, Texas 75081
    SBOT#19672500

HONORABLE SUSAN HAWK                  DISTRICT ATTORNEY
    133 N. Riverfront Blvd            DALLAS COUNTY, TEXAS
    Frank Crowely Courts Bldg.
    Dallas, Texas 75207

HONORABLE HEATH HARRIS                ASSISTANT DISTRICT
                                      ATTORNEY
     133 N. Riverfront Blvd           DALLAS COUNTY, TEXAS
     Frank Crowely Courts Bldg.
     Dallas, Texas 75207




                                  i
                                         TABLE OF CONTENTS
                                                                                             PAGE
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . 1

STATEMENT OF CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF THE PROCEDURAL HISTORY.. . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).

2. The Court of Appeals erred in holding that the trial court’s application of the
2013 amendment to section 12.31 P.C. when resentencing Henry was not an
unconstitutional ex post facto application fo the amended law.

3. The Court of Appeals erred in holding that Henry’s punishment on remand does
not violate Henry’s right to due process.

4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . 10
                                                           ii
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . 11

APPENDIX A          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                    iii
                                      INDEX OF AUTHORITIES

FEDERAL CASES:

Graham v. Florida
560 U.S. (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Miller v. Alabama
132 S.Ct. 2455 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6

U.S. v. Obrien
391 U.S. 367, 88 S.Ct. 1073, 20 L.Ed. 2d. 672 (1968).. . . . . . . . . . . . . . . . . . . . . . 7

U.S. v. Patzer
15 F3d 944 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. v. Staten
466 F.3d 708 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. v. Wade
435 F.3d 829 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

STATE CASES:

Lewis v. State
428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lopez v. State
928 S.W.2d 528 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Hazzard
146 Idaho 37, 190 P3d 193 (Ct. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State v. Jones
192 Wis 2d 78, 532 N.W.2d 79 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Manussier
129 Wash 2d 652, 921 P2d 473 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                                                           iv
Turner v. State
443 S.W.3d 128 (Tex. Crim. App. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

STATUTES, RULES:
8th amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 3,5

Sec. 12.31 P.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,5

Sec. 19.01 P.C. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Article I § 10, of the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Article One, Section Sixteen of the Texas Constitution. . . . . . . . . . . . . . . . . . . . . . 9

Article One Section Nine of the U.S. Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                            v
                               No. 05-14-00197-CR

                 TO THE COURT OF CRIMINAL APPEALS
                       OF THE STATE OF TEXAS

TERRANCE HENRY,                                                     Appellant

v.

THE STATE OF TEXAS                                                  Appellee

                            *****
       APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

                          *****
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

             Comes now the Appellant/Petitioner and respectfully urge the Court

to grant discretionary review of the above named cause.

              STATEMENT REGARDING ORAL ARGUMENT

             Appellant/Petitioner does not request oral argument at this time;

however, if discretionary review is granted Appellant/Petitioner requests oral

argument on any issue granted review.

                            STATEMENT OF CASE

             On March 1, 2011, a trial was held in Cause No. F09-59736-W before

the Honorable Tracy F. Holmes, Judge presiding of the 363rd Judicial District

Court of Dallas County, Texas, and a jury. The Defendant, Terrance Henry,

entered a plea of not guilty to the offense of capital murder as charged in the

                                          1
indictment. (RR: Vol.4 p. 5) The jury found the Defendant, who was seventeen

years old at the time of offense, guilty of capital murder. (RR: Vol. 7 p. 102) The

jury sentenced the Defendant to confinement for life in the Institutional Division

of Texas Department of Criminal Justice without parole as required by law. (RR:

Vol. 7 p. 104) While Henry’s appeal was pending the United States Supreme

Court held that the Eighth Amendment to the United States Constitution forbids a

sentencing scheme for juvenile offenders in which life without parole is

mandatory rather than based on an individualized sentencing assessment. Henry’s

first appeal, 05-11-00676-CR was reversed and remanded for a new punishment

hearing. On remand, the trial court assessed Henry’s punishment at imprisonment

for life, with the possibility of parole. The second appeal, 05-14-00197-CR, was

affirmed.

                STATEMENT OF PROCEDURAL HISTORY

             The Court of Appeals affirmed the appeal in an opinion delivered on

July 10, 2014 a copy of which is attached hereto as Addendum A.

Appellant/Petitioner now files his Petition for Discretionary Review.

               SUMMARY OF THE STATEMENT OF FACTS

             Appellant/Petitioner was accused of the murder of two men, Brandon

Gilstrap and Byron Carter, during the commission of a robbery.


                                         2
                     GROUNDS FOR REVIEW RESTATED

1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).

2. The Court of Appeals erred in holding that the trial court’s application of
the 2013 amendment to section 12.31 P.C. when resentencing Henry was not
an unconstitutional ex post facto application fo the amended law.

3. The Court of Appeals erred in holding that Henry’s punishment on remand
does not violate Henry’s right to due process.

4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”

                   REASONS FOR REVIEW (ARGUMENT)

             Petitioner submits that the Court of Appeals has so far departed from

the accepted and usual course of judicial proceedings, or so far sanctioned such a

departure by a lower court, as to call for an exercise of the Court of Criminal

Appeals’ power of supervision. This Court should review these issues because the

Court of Appeals has issued an opinion concerning the constitutionality of the

retroactive application of the law providing for a life sentence with the possibility

of parole to a 17 year old convicted of capital murder while his case was pending

appeal in response to the case of Miller v. Alabama, 132 S.Ct. 2455 (2012).



                                          3
             Appellant moves this Court to reexamine its holdings in these two

cases (Turner v. State, supra and Lewis v. State, supra) as they apply to the case at

bar in light of the additional issues raised in this case concerning Henry’s

challenges;(1) that the law used to assess his new punishment was applied ex post

fact; (2) that the new law relating to the assessment of his new punishment violates

his right to due process in its retroactive effect; and (3) that law relating to the

assessment of his new punishment constitutes a ‘Bill of Attainder.’

1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).

                                     ARGUMENT

             The Court of Appeals held that this Honorable Court has determined

that Henry was not entitled to an individualized sentencing hearing pursuant to the

‘Turner’ case. Appellant argues excerpts from the Miller decision in support of

his position that youthful offenders like himself should not be subject to

mandatory sentencing legislation of any nature. This is presented in an attempt to

persuade reconsideration of this Court’s holding in ‘Turner’ that the Miller case

does not prevent mandatory life sentences with parole for 17 year old offenders




                                            4
who are convicted of Capital Murder in Texas and to preserve the issue for

possible further review in Federal Court if required in the case at bar.

             Appellant argues from Miller that children are constitutionally

different from adults for purposes of sentencing, because juveniles have

diminished capacity and greater prospects for reform. It was stated that a child’s

moral culpability is lessened and enhanced that as the years go by and

neurological development occurs the deficiencies will be reformed. An offender’s

age as made clear in Graham v. Florida, 560 U.S. (2010) is relevant to the Eighth

Amendment and so “criminal procedure laws that fail to take defendant’s

youthfulness into account at all would be flawed.”

2. The Court of Appeals erred in holding that the trial court’s application of
the 2013 amendment to section 12.31 P.C. when resentencing Henry was not
an unconstitutional ex post facto application fo the amended law.

                                   ARGUMENT

             There was a defined crime of capital murder without a defined

punishment applicable to Appellant due to his age of 17 years at the time of the

offense. The newly amended statute Sec.12.31(a) thereby severely increased the

punishment to life. Appellant further submits that he should have been prosecuted

pursuant to the statutorily defined offense of murder pursuant to sec. 19.01 P.C.

that carried a constitutional punishment range of 5-99 years or life confinement


                                          5
and up to a $10,000 fine for a first degree felony offense. This would give the

sentencer, judge or jury the necessary discretion to consider all the considerations

discussed in ‘Miller’ as factors in assessing punishment for ‘children’ offenders.

Additionally, Appellant elected that he be sentenced by a jury and not the Court in

such a situation. Appellant argues that he was wrongly and without due process

prosecuted for an offense (Capital Murder) that had no constitutional punishment

rather than the constitutional offense of murder.

3. The Court of Appeals erred in holding that Henry’s punishment on remand
does not violate Henry’s right to due process.

                                    ARGUMENT

             Although the state and federal ex post facto clauses are limitations on

legislative action, the judicial branch is limited by the same principle pursuant to

the state and federal due process clauses; an ex post facto doctrine prohibiting the

retroactive application of laws does apply to the judicial construction of laws

including both unforeseen constructions as well as clarifications of existing laws.

Lopez v. State, 928 S.W.2d 528 (Tex. Crim. App. 1996); State v. Jones. 192 Wis

2d 78, 532 N.W.2d 79 (1995). This was made clear by the United States Supreme

Court, which held that an unforeseeable judicial enlargement of a criminal statute,

applied retroactively, operates precisely like an ex post facto law, such as Article I

§ 10, of the United States Constitution forbids, and that since a state legislature is

                                           6
barred by the Ex Post Facto Clause from passing such a law, it must follow that a

state appellate court is barred by the Due Process Clause from achieving precisely

the same result by judicial construction. U.S. v. Staten, 466 F.3d 708 (9th Cir.

2006). Due process concerns do require that the application of judicial decisions

to a pending defendant’s case complies with the concepts of notice, foreseeability,

and in particular the right to fair warning, U.S. v. Wade, 435 F.3d 829 (8th Cir.

2006).

4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”

                                     ARGUMENT

             Two elements of what constitutes a bill of attainder prohibited by the

state and federal constitutions are the presence of punishment which as a particular

law, provision or action challenged on a bill of attainder grounds is inflicted by an

authority other than a judicial authority and the lack of a judicial trial. State v.

Manussier, 129 Wash 2d 652, 921 P2d 473 (1996), U.S. v. Patzer, 15 F3d 944

(10th Cir. 1993) State v. Hazzard, 146 Idaho 37, 190 P3d 193 (Ct. App. 2008) U.S.

v. Obrien, 391 U.S. 367, 88 S.Ct. 1073, 20 L.Ed. 2d. 672 (1968).

             A bill of attainder is a legislative act that applies either to named

individuals or to easily identifiable member of a group in such a way as to inflict


                                           7
punishment on them without a judicial trial as in the case at bar in that Appellant

is a member of an identifiable class of persons under 18 years of age that have

been tried and convicted of the adult offense of capital murder in which the

mandatory and automatic punishment of life without parole is unconstitutional.

The remedy of life with parole as a mandatory and automatic punishment to be

applied to Appellant retrospectively is by legislature enactment and not by judicial

trial by the sentencer elected by Appellant, the jury. The resulting application of a

mandatory sentence of life assessed in this case; is therefore an unconstitutional

bill of attainder.

                                  CONCLUSION

              In conclusion, Appellant argues that in Henry’s case once the

statutory mandatory life without parole sentence was held unconstitutional, there

was no statutory sentencing scheme in effect at the time. As a remedy the

legislature passed a sentencing scheme of life with parole with a savings clause

making the punishment apply retroactively was an ex post facto application of a

new punishment. Appellant also argues that this attempted remedy for an

unconstitutional sentencing scheme as applied to Henry violated his right to due

process and or was effectively a ‘Bill of Attainder’ as applied to Henry. An

unforeseeable judicial enlargement criminal statute, applied retroactively operates


                                          8
like an ex post facto law. Appellant argues that the application of the retroactive

application of the new sentencing scheme is a violation of due process pursuant to

Article One, Section Sixteen of the Texas Constitution and Article One Section

Nine of the U.S. Constitution by the retroactive application of the new law in the

Court of Appeals and now in this petition to be granted for further briefing on the

issue.

                                     PRAYER

             For the reasons stated, it is respectfully submitted that the Court of

Criminal Appeals should grant this Petition for Discretionary Review and then

reverse the judgment, and remand for a new trial.

                                    Respectfully submitted by,



                                     /s/ John Tatum
                                    John Tatum

                         CERTIFICATE OF SERVICE

      I, JOHN TATUM, do hereby certify that a true and correct copy of the
foregoing Petition for Discretionary Review for Petitioner was delivered to Susan
Hawk, Criminal District Attorney, Appellate Section, 11th floor, Frank Crowley
Criminal Courts Building, Dallas, Texas 75207, on this 24th day of July, 2014.



                                     /s/ John Tatum
                                    JOHN TATUM

                                          9
  CERTIFICATE OF COMPLIANCE OF WORD COUNT PURSUANT TO
            APPELLATE RULE OF PROCEDURE 9.4

      I certify that this document has 1,802 words pursuant to the definitions of
length and content in Rule 9.4. (C)(i)(2)(D)

      A. Case Name: Terrance Henry
      B. The Court of Criminal Appeals
      C. The Type of Document: Petition for Discretionary Review
      D. Party for whom the document is being submitted: Appellant
      E. The Word Processing Software and Version Used to Prepare the Brief:
      Word Perfect X7
      Copies have been sent to all parties associated with this case.

       /s/ John Tatum
      (Signature of filing party and date)




                                         10
                       CERTIFICATE OF COMPLIANCE

      I certify that this submitted e-mail attachment to file Petition for
Discretionary Review complies with the following requirements of the Court:

      1. The petition is submitted by e-mail attachment;

      2. The e-mail attachment is labeled with the following information:

      A. Case Name: Terrance Henry
      B. The Appellate Case Number: NO. 05-14-00197-CR
      C. The Type of Document: Petition for Discretionary Review
      D. Party for whom the document is being submitted: Appellant
      E. The Word Processing Software and Version Used to Prepare the Motion :
      Word Perfect X7

      3. Copies have been sent to all parties associated with this case.

         /s/ John Tatum
      (Signature of filing party)

      John Tatum
      (Printed name)

      John Tatum, Attorney at Law

      Emailed Copy of Petition




                                         11
APPENDIX A




    12
Affirmed as Modified and Opinion Filed July 10, 2015.




                                                                   In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                         No. 05-14-00197-CR

                                              TERRANCE HENRY, Appellant
                                                         V.
                                             THE STATE OF TEXAS, Appellee

                                 On Appeal from the 363rd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F-0959736-W

                                           MEMORANDUM OPINION
                                        Before Justices Lang, Brown, and Whitehill1
                                                 Opinion by Justice Lang
            Terrance Henry appeals the trial court’s judgment convicting him of capital murder. On

remand from this court, the trial court assessed his punishment at imprisonment for life. Henry

raises four issues on appeal, arguing his punishment on remand is unconstitutional because the

law relating to the assessment of his new punishment: (1) violates the Eighth Amendment to the

United States Constitution; (2) was applied ex post facto; (3) violates his right to due process;

and (4) constitutes a bill of attainder.

            We conclude Henry’s punishment on remand is not unconstitutional. Also, we conclude

the judgment incorrectly states that Henry pleaded guilty and modify the judgment accordingly.

The trial court’s judgment is affirmed as modified.
1
    The Honorable Justice Bill Whitehill succeeded the Honorable Kerry FitzGerald, retired, a member of the original panel. Justice Whitehill has
    reviewed the briefs and record before the Court.
                              I. PROCEDURAL BACKGROUND

       A description of the factual background of this case may be found in Henry v. State, No.

05-11-00676-CR, 2012 WL 3631251 (Tex. App.—Dallas Aug. 24, 2012, no pet.)(mem. op., not

designated for publication). The jury found Henry, a seventeen year old at the time of the

offense, guilty of capital murder and assessed his punishment at life imprisonment without

parole. While Henry’s appeal was pending, the United States Supreme Court held that the

Eighth Amendment to the United States Constitution forbids a sentencing scheme for juvenile

offenders in which life without parole is mandatory rather than based on an individualized

sentencing assessment. Miller v. Alabama, 132 S. Ct. 2455 (2012); Turner v. State, 443 S.W.3d

128 (Tex. Crim. App. 2014)(per curiam); Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App.

2014). Henry appealed. In his first appeal, this Court reversed the trial court’s judgment as to

punishment and remanded the case for a new punishment hearing. Henry, 2012 WL 3631251; cf.

Turner, 443 S.W.3d at 129 (concluding court of appeals erred in remanding case to trial court for

new hearing as appellant was only entitled to have his sentence reformed from life without

parole to life with possibility of parole). On remand, the trial court assessed Henry’s punishment

at imprisonment for life, with the possibility of parole. This second appeal followed.

                                 II. STANDARD OF REVIEW

       The constitutionality of a criminal statute is a question of law that an appellate court

reviews de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In assessing a

statute’s constitutionality, an appellate court starts with the presumption that the statute is valid

and the legislature did not act arbitrarily or unreasonably in enacting the statute. See Rodriguez

v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). As the party challenging the statute, the

appellant has the burden of establishing its unconstitutionality. Rodriguez, 93 S.W.3d at 69. An




                                                –2–
appellate court must uphold the statute if it can determine a reasonable construction that renders

it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).

                                III. EIGHTH AMENDMENT

       In issue one, Henry argues his punishment on remand is unconstitutional because the law

applied when assessing his new punishment violates the Eighth Amendment to the United States

Constitution. Henry argues the United States Supreme Court’s rationale in Miller and use of

language from its prior opinions in Graham and Roper requires that a judge or jury must have

the opportunity to consider mitigating circumstances before imposing the harshest possible

penalty for juveniles. See Miller, 231 S. Ct. 2455 (Eighth Amendment forbids mandatory

sentence of life without parole for juveniles); Graham v. Florida, 560 U.S. 48 (2010)(Eighth

Amendment forbids sentence of life without parole for juvenile offender who did not commit

homicide); Roper v. Simmons, 543 U.S. 551 (2005)(death penalty cruel and unusual when

imposed on juvenile offender). The State responds that “no Texas court has ever questioned the

idea that a life sentence is appropriate for conduct such as Henry’s, and thus permissible to be

made mandatory or automatic.”       Further, the State maintains that Miller does not forbid

mandatory sentencing schemes and once the trial court eliminated the “without parole”

provision, Henry’s sentence satisfied the narrow holding in Miller.

                                       A. Applicable Law

       The Eighth Amendment to the United States Constitution, as applied to the states through

the Fourteenth Amendment, prohibits cruel and unusual punishment and requires a criminal

sentence to be proportionate to the crime committed. See U.S. CONST. amend. VIII; Lackey v.

State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref’d). Even when a sentence is

within the range permitted by law, a sentence may, in rare instances, be disproportionate to the

gravity of the offense. See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)


                                               –3–
(“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth

Amendment gross-disproportionality review, a punishment that falls within the legislatively

prescribed range, and that is based upon the sentencer’s informed normative judgment, is

unassailable on appeal.”). “The Eighth Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile offenders.” Miller, 132 S. Ct. at 2469;

Lewis, 428 S.W.3d at 863. However, juvenile offenders sentenced to life with the possibility of

parole are not entitled to individualized sentencing under the Eighth Amendment. Turner, 443

S.W.3d at 129; Lewis, 428 S.W.3d at 863. Texas courts have consistently held tht the mandatory

life sentence required under section 12.31 of the Texas Penal Code is not unconstitutional as

cruel and unusual punishment under the Eighth Amendment. E.g., Murkle v. State, 437 S.W.3d

17, 30 (Tex. App.—Fort Worth 2014, pet. dism’d, untimely filed).

                                           B. Application of the Law to the Facts

            Henry argues the Eighth Amendment requires that he receive an individualized

sentencing hearing. However, the Texas Court of Criminal Appeals has already determined that

juvenile offenders are not entitled to an individualized sentencing hearing.2 Turner, 443 S.W.3d

at 129; Lewis, 428 S.W.3d at 864–65. As a result, Henry was entitled to have his sentence

reformed from life without parole to life with the possibility of parole. See Turner, 443 S.W.3d

at 129; Lewis, 428 S.W.3d at 864–65. This is the new punishment Henry received when he was

resentenced. Accordingly, we conclude Henry’s punishment on remand did not violate the

Eighth Amendment.

            Issue one is decided against Henry.




2
    In his brief on appeal, Henry acknowledged the decision of the Texas Court of Criminal Appeals in Lewis and stated he “submits the following
    issue[] on appeal . . . [to] preserve any future Federal Constitutional violation claim.”



                                                                     –4–
                                     IV. EX POST FACTO

       In issue two, Henry argues his punishment on remand is unconstitutional because the law

used to assess his new punishment was applied ex post facto. Henry argues the holding in Miller

made the punishment originally authorized by the Texas Legislature void ab initio. As a result,

he claims that, for the offense he was convicted, there was no punishment applicable to him.

Consequently, Henry contends that the 2013 amendment to section 12.31 of the Texas Penal

Code “severely increased his punishment.” The State responds that “[t]his argument is pure

sophistry.”   The State argues the 2013 amendment to section 12.31 “did not change the

punishment for capital murder: it was imprisonment for life when Henry committed the offense

and it was imprisonment for life when he was resentenced in August [] 2013.”

                                       A. Applicable Law

       Article I, section 9 of the United States Constitution states, “No . . . ex post facto Law

shall be passed,” and article I, section 10 prohibits the states from passing any ex post facto law.

U.S. CONST. art. I, §§ 9, 10. Similarly, article I, section 16 of the Texas Constitution states that

“[n]o . . . ex post facto law . . . shall be made.” TEX. CONST. art. 1, § 16. Only the legislature

can violate either the federal or state Ex Post Facto Clause. Ex parte Heilman, 456 S.W.3d 159,

163 (Tex. Crim. App. 2015).

       Under the Texas or United States Constitution, an ex post facto law: (1) punishes as a

crime an act previously committed which was innocent when done; (2) aggravates a crime, or

makes it greater than it was, when committed; (3) changes the punishment and inflicts greater

punishment than the law attached to the criminal offense when committed; or (4) deprives a

person charged with a crime of any defense available at the time the act was committed. See

Peugh v. United States, 133 S. Ct. 2072, 2081 (2013)(citing Calder v. Bull, 3 U.S. (Dall.) 386,

390 (1798)); Collins v. Youngblood, 497 U.S. 37, 42 (1990); Rodriguez v. State, 93 S.W.3d 60,


                                                –5–
66–67 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219–20 (Tex. Crim. App.

1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996). The Ex Post Facto

Clause prohibits applying a new statute’s higher penalties to pre-statute conduct, but it does not

prohibit applying lower penalties. See Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012).

       The Texas Court of Criminal Appeals has recognized that an unconstitutional statute is

void ab initio and when a statute is adjudged to be unconstitutional, it is as if it had never been,

i.e., such an unconstitutional statute is stillborn. See Smith v. State, No. PD-1790-13, 2015 WL

3895016, at *4 (Tex. Crim. App. June 24, 2015)(quoting Reyes v. State, 753 S.W.2d 382, 383

(Tex. Crim. App. 1988) and Ex parte Bockhorn, 138 S.W. 706, 707 (Tex. Crim. App. 1911)).

When a law under which a defendant is found guilty is declared unconstitutional, the law stands

as if the new law had never been enacted. See Ex parte Jones, 440 S.W.3d 628, 629 (Tex. Crim.

App. 2014)(if appellant incorrect in constitutional challenge, then amendment valid and his

offense is punishable as third-degree felony, but if he is correct, then his offense is punishable

under prior law as state-jail felony); Hurwitz v. State, 700 S.W.2d 919, 923–24 (Tex. Crim. App.

1985)(Teague, J., concurring).     However, “[b]ecause the holding in Miller is limited to a

prohibition on mandatory life without parole for juvenile offenders, [defendants] are not entitled

to [new] punishment hearings.” See Lewis, 428 S.W.3d at 864 (addressing Eighth Amendment

challenge).

                             B. Application of the Law to the Facts

       Before 2005, section 12.31 of the Texas Penal Code provided that “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 institutional division for life” and “In a capital felony

trial in which the state does not seek the death penalty, prospective jurors shall be informed that

the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory


                                                –6–
on conviction of the capital felony.” Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 101.1,

1993 Tex. Gen. Laws 3586, 3602–03 (amended 2005, 2009, and 2013). Accordingly, until 2005,

an individual adjudged guilty of a capital felony, in which the State did not seek the death

penalty, was punished with imprisonment for life.3 Ex parte Maxwell, 424 S.W.3d 66, 68 n.3

(Tex. Crim. App. 2014).

            In 2005, the Texas Legislature amended section 12.31 to state that “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 institutional division for life without parole” and “In a

capital felony trial in which the state does not seek the death penalty, prospective jurors shall be

informed that the state is not seeking the death penalty and that a sentence of life imprisonment

without parole is mandatory on conviction of the capital felony.” Act of May 28, 2005, 79th

Leg., ch. 787, § 1, 2005 Tex. Gen. Laws 2705 (amended 2009 and 2013). Also, in 2005, the

United States Supreme Court held that the Eighth Amendment bars the execution of juveniles,

even when they commit murder. Roper, 543 U.S. 551. In 2009, section 12.31 was amended to

distinguish cases that had been transferred pursuant to section 54.02 of the Texas Family Code.

See Ex parte Maxwell, 424 S.W.3d at 68 n.3. Specifically, the statute as amended in 2009 stated:

            § 12.31.               Capital Felony

                (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



3
    Section 12.31 of the Texas Penal Code has imposed life imprisonment since it was first enacted in 1973. Beginning in 1973, section 12.31 of
    the Texas Penal Code provided that “an individual adjudged guilty of a capital felony shall be punished by confinement . . . for life or by
    death” and “prospective jurors shall be informed that a sentence of life imprisonment or death [was] mandatory on conviction of a capital
    felony.” Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 2, § 2, 1973 Tex. Gen. Laws 1122, 1124 (amended 1991, 1993, 2005, 2009, and
    2013). In 1991, the Texas Legislature amended section 12.31, in part, to state, “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 confinement in the institutional division for life” and “In a capital felony
    trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and
    that a sentence of life imprisonment is mandatory on conviction of the capital felony.” Act of May 27, 1991, 72nd Leg., R.S., ch. 652, § 12 ,
    1991 Tex. Gen. Laws 2394, 2397 (amended 1993, 2005, 2009, and 2013).



                                                                        –7–
        death penalty shall be punished by imprisonment in the Texas Department of
        Criminal Justice for:

               (1) life, if the individual’s case was transferred to the court under Section
               54.02, Family Code; or

               (2) life without parole.

             (b) In a capital felony trial in which the state seeks the death penalty,
        prospective jurors shall be informed that a sentence of life imprisonment without
        parole or death is mandatory on conviction of a capital felony. In a capital felony
        trial in which the state does not seek the death penalty, prospective jurors shall be
        informed that the state is not seeking the death penalty and that:

               (a) a sentence of life imprisonment is mandatory on conviction of the
               capital felony, if the case was transferred to the court under Section 54.02,
               Family Code; or

               (b) a sentence of life imprisonment without parole is mandatory on
               conviction of the capital felony.

Act of May 29, 2009, 81st Leg., ch. 765, § 1, 2009 Tex. Gen. Laws 1930 (amended 2013); Ex

parte Maxwell, 424 S.W.3d at 68 n.3. This was the law in effect at the time of Henry’s

conviction and original sentencing.

        In 2012, the United States Supreme Court held that the Eighth Amendment to the United

States Constitution forbids a sentencing scheme for juvenile offenders in which life without the

possibility of parole is mandatory, rather than based on an individualized sentencing assessment.

Miller, 132 S. Ct. 2455; Turner, 443 S.W.3d at 128; Lewis, 428 S.W.3d at 861. However,

contrary to Henry’s contention that Miller declared the punishment authorized by the Texas

Legislature at the time of his original sentence void ab initio, the United States Supreme Court

did not announce a categorical ban on assessing life without parole on minors. See Lewis, 428

S.W.3d at 863; Carmon v. State, 456 S.W.3d 594, 599 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d).

        “In response to the [United States] Supreme Court’s opinion in Miller, the Texas

Legislature amended the capital sentencing statute to provide that life imprisonment, with the

                                                –8–
possibility of parole, is the mandatory sentence for defendants convicted of a capital offense

which was committed when the defendant was younger than eighteen.” Turner, 443 S.W.3d at

129 n.2. Specifically, section 12.31 of the Texas Penal Code was amended to state:

        § 12.31.       Capital Felony

            (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.

             (b) In a capital felony trial in which the state seeks the death penalty,
        prospective jurors shall be informed that a sentence of life imprisonment without
        parole or death is mandatory on conviction of a capital felony. In a capital felony
        trial in which the state does not seek the death penalty, prospective jurors shall be
        informed that the state is not seeking the death penalty and that:

               (a) a sentence of life imprisonment is mandatory on conviction of the
               capital felony, if the individual committed the offense when younger than
               18 years of age; or

               (b) a sentence of life imprisonment without parole is mandatory on
               conviction of the capital felony, if the individual committed the offense
               when 18 years of age or older.

Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws 4802 (codified at TEX.

PENAL CODE ANN. § 12.31 (West Supp. 214)). This amendment became effective on July 22,

2013.

        On August 15, 2013, the trial court assessed Henry’s new punishment at life

imprisonment, with the possibility of parole, in accordance with the 2013 amendments to section




                                                –9–
12.31.4 See TEX. PENAL CODE ANN. § 12.31. The 2013 Session Laws, amending section 12.31,

included a savings clause that states:

            Section 3.              The change in law made by this Act:

            (1)     applies to a criminal action pending, on appeal, or commenced on or after
            the effective date [July 22, 2013] of this Act, regardless of whether the criminal
            action is based on an offense committed before, on, or after that date; and

            (2)         does not affect a final conviction that exists on the effective date of this
            Act.

Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also

Turner, 443 S.W.3d at 129 n.2.

            The change in Henry’s punishment did not inflict greater punishment than the law

attached to the criminal offense when Henry committed it. Compare Act of May 29, 2009, 81st

Leg., ch. 765, § 1, 2009 Tex. Gen. Laws at 1930 (requiring mandatory sentence of life without

parole) with Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws at 4802

(requiring mandatory sentence of life). Initially, Henry was sentenced to mandatory life without

the possibility of parole. This is the second most severe penalty permitted in Texas. Meadoux v.

State, 325 S.W.3d 189, 195 (Tex. Crim. App. 2010). On remand, Henry was sentenced to life

with the possibility of parole, a less severe punishment. See Carmon, 456 S.W.3d at 599. The

prohibition against the application of more severe punishment laws ex post facto does not

prohibit the application of new lower penalties after the effective date of the new legislation. See

Dorsey, 132 S. Ct. at 2332. Further, regardless of whether the law in effect before the 2005

amendment to section 12.31 of the Texas Penal Code or the 2013 amendment was applied,


4
    During the resentencing hearing, the trial court stated:
            Mr. Henry was found guilty of capital murder by a jury on the 7th day of March, 2011. The [trial court] assessed
            punishment: The statutory punishment of life confinement in the Texas Department of Criminal Justice without parole.

            Since that time, the Legislature has amended the statute. This sentence is no longer legal and [Henry] will be resentenced
            to life in the penitentiary with the possibility of parole.



                                                                     –10–
Henry’s punishment on remand would have been the same, i.e., life, with the possibility of

parole. Compare Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 101.1, 1993 Tex. Gen. Laws

at 3602–03 (requiring mandatory sentence of life) with Act of July 11, 2013, 83rd Leg., 2d S.C.,

ch. 2, § 1, 2013 Tex. Gen. Laws at 4802 (requiring mandatory sentence of life).

       Accordingly, we conclude the trial court’s application of the 2013 amendment to section

12.31 when resentencing Henry was not an unconstitutional ex post facto application of the

amended law because the punishment provided for in the 2013 amendment was less severe. In

addition, we conclude Henry has not suffered harm because the mandatory punishment under the

law in effect before the 2005 amendment to section 12.31 was the same as the new punishment

assessed pursuant to the 2013 amendment.

       Issue two is decided against Henry.

                                      V. DUE PROCESS

       In issue three, Henry argues his punishment on remand is unconstitutional because the

law relating to the assessment of his new punishment violates his right to due process. The State

responds that the amended statute can be given retroactive effect.

                                       A. Applicable Law

       The Texas Court of Criminals Appeals defined retroactive laws:

       A retroactive law is one meant to act on things that are past. As such, a statute is
       retroactive which takes away or impairs vested rights acquired under existing
       laws or creates new obligations, imposes new duties, or adopts a new disability in
       respect to transactions or considerations already past, and which affects acts or
       rights accruing before it came into force.

Ex Parte Abahosh, 561 S.W.2d 202, 203–04 (Tex. Crim. App. 1978). In other words, a law is

retroactive if it changes the legal consequences of acts before its effective date. In re Ramirez,

184 S.W.3d 392, 395 (Tex. App.—Dallas 2006, orig. proceeding).




                                              –11–
       The Fourteenth Amendment provides in part: “[the] State [shall not] deprive any person

of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. The

Due Process Clause also protects the interests in fair notice and repose that may be compromised

by retroactive legislation; a justification sufficient to validate a statute’s prospective application

under the Clause “may not suffice” to warrant its retroactive application. Landgraf v. USI Film

Prods., 511 U.S. 244, 266 (1994); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976).

The Texas Constitutional due-process provision provides: “No citizen of this State shall be

deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised,

except by the due course of the law of the land.” TEX. CONST. art. I, § 19. In addition, article 1,

section 16 of the Texas Constitution provides, “No . . . retroactive law . . . shall be made.” TEX.

CONST. art. 1, § 16.

       A judicial decision having an unjust retroactive application is barred by the due process

provisions of the Fourteenth Amendment to the United States Constitution. Ex Parte Bonham,

707 S.W.2d 107, 108 n.1 (Tex. Crim. App. 1986). “Although this limitation is often regarded as

the judicial cognate of the ex post facto prohibition, the [United States] Supreme Court has made

clear that the two are not co-extensive.” Ex Parte Heilman, 456 S.W.3d at 166 (citing Rogers v.

Tennessee, 532 U.S. 451, 460 (2001)). Courts can violate the due process provisions through an

unforeseeable judicial enlargement of a criminal statute applied retroactively. Bouie v. City of

Columbia, 378 U.S. 347, 353 (1964); Ex Parte Heilman, 456 S.W.3d at 166. “If a judicial

construction of a criminal statute is unexpected and indefensible by reference to the law which

had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Bouie,

378 U.S. at 354.

       “A state judicial decision may not operate retroactively if it has the effect of depriving

persons of fair warning of what conduct will give rise to which criminal penalties.” Proctor v.

                                                –12–
State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998) distinguished on other grounds by Grado v.

State, 445 S.W.3d 736 (Tex. Crim. App. 2014). But a decision may apply retroactively if it does

not alter an offense’s definition, range of punishment, or substantive defenses. Proctor, 967

S.W.2d at 845.

                              B. Application of the Law to the Facts

       As previously noted, the 2013 Session Laws, amending section 12.31, included a savings

clause that states it “applies to a criminal action pending, on appeal, or commenced on or after

the effective date [July 22, 2013] of this Act, regardless of whether the criminal action is based

on an offense committed before, on, or after that date.” Act of July 11, 2013, 83rd Leg., 2d S.C.,

ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also Turner, 443 S.W.3d at 129 n.2. However,

there is nothing to suggest the 2013 amendment to section 12.31 or the trial court’s application of

the amended law was “unexpected and indefensible” such that it offended the due process

principle of fair warning.     The trial court’s application of the 2013 amendment did not

retroactively alter the definition of capital murder, the range of punishment for a capital felony,

or the substantive defenses that were available. The punishment before and after the 2013

amendment was life imprisonment. Accordingly, we conclude Henry’s punishment on remand

does not violate his right to due process.

       Issue three is decided against Henry.

                                   VI. BILL OF ATTAINDER

       In issue four, Henry argues his punishment on remand is unconstitutional because the law

relating to the assessment of his new punishment constitutes a Bill of Attainder. Henry claims

the remedy of life with the possibility of parole as a mandatory and automatic punishment was

applied to him by legislative enactment, not by judicial trial by jury as he elected. Henry argues

he is a member of an identifiable class of persons under eighteen years of age that have been


                                               –13–
tried and convicted of the adult offense of capital murder. The State responds that although “the

legislature retroactively changed the parole law applicable to Henry . . . [his punishment is] a

result of a judicial proceeding that fairly determined his guilt and punishment, and not by use of

legislative power to pass upon his guilt in the absence of any of the protective safeguards of a

trial.”

                                           A. Applicable Law

          Article I, section 9 of the United States Constitution states, “No Bill of Attainder . . . shall

be passed,” and article I, section 10 prohibits the states from passing any Bill of Attainder. U.S.

CONST. art. I, §§ 9, 10. Similarly, article I, section 16 of the Texas Constitution states that “[n]o

bill of attainder . . . shall be made.” TEX. CONST. art. 1, § 16. The prohibitions on ex post facto

laws and bills of attainder are obviously closely related.             See, e.g., California Dept. of

Corrections v. Morales, 514 U.S. 499, 520 n.4 (1995)(Stevens, J., dissenting, joined by Souter,

J.); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138–139 (1810).

          The prohibition on “Bills of Attainder” in Art. 1 §§ 9–10, prohibits legislatures from

singling out disfavored persons and meting out summary punishment for past conduct.

Landgraf, 511 U.S. at 266; United States v. Brown, 381 U.S. 437, 456–62 (1965); Landgraf

Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 137 (Tex. 2010). To constitute a bill of

attainder, the statute must: (1) specify affected persons; (2) impose punishment; and (3) fail to

provide for a judicial trial. See Selective Servc. Sys. v. Minnesota Public Interest Research Grp.,

468 U.S. 841, 847 (1984).

          A bill of attainder is a legislative act which imposes punishment on a designated person

or class of persons without the benefit of a trial. See, e.g., Selective Servc. Sys., 468 U.S. at 847;

Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 468 (1977); United States v. Lovett, 328 U.S. 303,

315–316 (1946); see also Jones v. State, No. 03-97-00592-CR, 1999 WL 236067, at *3 (Tex.


                                                   –14–
App.—Austin Apr. 15, 1999, pet. ref’d)(not designated for publication); Golden v. State, No. 11-

97-00109-CR, 1998 WL 34194008, at *3 (Tex. App.—Eastland Sept. 17, 1998, no pet.)(no

designated for publication). Historically, bills of attainder generally named the persons to be

punished. Selective Serv., 468 U.S. at 847. However, the singling out of an individual for

legislatively prescribed punishment constitutes an attainder whether the individual is called by

name or described in terms of conduct which, because it is past conduct, operates only as a

designation of particular persons. Selective Serv., 468 U.S. at 847; Communist Party of U.S. v.

Subversive Activities Control Bd., 367 U.S. 1, 86 (1961).

       Even if the specificity element is satisfied, a statue does not implicate the Bill of

Attainder Clause unless it inflicts punishment on the specified individual or group. Selective

Serv., 468 U.S. at 851.      The severity of a sanction does not determine its character as

punishment. Selective Serv., 468 U.S. at 851; Flemming v. Nestor, 363 U.S. 603, 616 (1960). In

deciding whether a statute inflicts forbidden punishment, there are three inquiries: (1) whether

the challenged statute falls within the historical meaning of punishment; (2) whether the statute,

viewed in terms of the type and severity of burdens imposed, reasonably can be said to further

nonpunitive legislative purposes; and (3) whether the legislative record evinces a legislative

intent to punish. Selective Serv., 468 U.S. at 852.

       The Bill of Attainder Clause was not intended to be a narrow, technical prohibition, but

an implementation of the separation of powers. United States v. Brown, 381 U.S. 437, 442

(1965); Robinson, 335 S.W.3d at 137. It is a general safeguard against legislative exercise of the

judicial function—trial by legislature. Brown, 381 U.S. at 442; Robinson, 335 S.W.3d at 137.

                             B. Application of the Law to the Facts

       Initially, we note that we need not inquire as to whether the 2013 amendment to section

12.31 contains the necessary element of punishment. It was clearly penal in nature as it was


                                               –15–
designed to impose criminal punishment for capital felonies. See U.S. v. O’Brien, 391 U.S. 367,

383 n.30 (1968).     Accordingly, we turn to whether the 2013 amendment to section 12.31

specifies affected persons and fails to provide for a judicial trial.

        Section 12.31 of the Texas Penal Code does not apply until a defendant commits a capital

felony. As a result, it does not target named individuals or easily ascertainable members of a

group. Further, before section 12.31 affects a person, that person must be found guilty of a

capital felony through the judicial process.         Henry’s guilt was not pronounced by 2013

amendment to section 12.31, but was determined by a jury. Also, Henry was resentenced by a

member of the judiciary, not the legislature. Further, Henry was represented by counsel during

his trial and, in this case, on resentencing.       As a result, he was provided a full and fair

opportunity to be heard. See United States v. Siepker, No. C01-3057-MWB, 2008 WL 5273088,

at *17 (N.D. Iowa Dec. 18, 2008)(mem. op.)(statute providing for increased sentence if

defendant convicted of offense while released was not a Bill of Attainder because before statute

affected defendant, he must be found guilty of one of listed crimes and his guilty was determined

by jury); United States v. Davis, 27 Fed. Appx. 592, 600 (6th Cir. 2001)(statute seeking to

impose punishment on individuals adjudicated as dangerous and possessing a firearm was not

prohibited Bill of Attainder because defendant’s actions were found by jury); United States v.

Chandler, 950 F.Supp. 1545, 1581 (N.D. Ala. 1996)(defendant who filed habeas petition was

tried, convicted, and sentenced to death by jury, so Department of Justice’s lethal injection

regulations did not subject defendant to trial by legislature according to Constitutional

prohibition of Bills of Attainder), aff’d on other grounds, 218 F.3d 1305 (11th Cir. 2000).

Accordingly, we conclude Henry’s punishment on remand pursuant to the 2013 amendment to

section 12.31 did not constitute an unconstitutional Bill of Attainder.

        Issue four is decided against Henry.

                                                 –16–
                         VII. MODIFICATION OF THE JUDGMENT

         Although neither party raises the issue, we observe the judgment states that Henry’s “Plea

to the Offense” was “Guilty” and that the “Terms of the Plea Bargain” were “Open.” However,

Henry pleaded “not guilty” and the jury found him “guilty.”

         An appellate court has the authority to modify an incorrect judgment to make the record

speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993)(en banc); Asberry v. State, 813

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we conclude the trial

court’s judgment should be modified to reflect the correct statute for the offense, which is section

22.04 of the Texas Penal Code. Issue one of the State’s cross-appeal is decided in favor of the

State.

         Accordingly, we conclude the trial court’s judgment should be modified to state that

Henry’s “Plea to the Offense” was “Not Guilty” and the “Terms of Plea Bargain” are “N/A.”

                                      VIII. CONCLUSION

         Henry’s punishment on remand is not unconstitutional. Also, the judgment incorrectly

states that Henry pleaded guilty and the judgment is modified accordingly.

         The trial court’s judgment is affirmed as modified.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
140197F.U05




                                                –17–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TERRANCE HENRY, Appellant                              On Appeal from the 363rd Judicial District
                                                       Court, Dallas County, Texas
No. 05-14-00197-CR         V.                          Trial Court Cause No. F-0959736-W.
                                                       Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                           Brown and Whitehill participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The portion of the judgement that states the “Plea to the Offense” was “Guilty” is
       modified to state “Not Guilty.” Also, the portion of the judgement that states the
       “Terms of the Plea Bargain” were “Open” is modified to state “N/A.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 10th day of July, 2015.




                                                –18–
