Opinion issued August 27, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-11-00839-CR
                            ———————————
                    LITREY DEMOND TURNER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                     On Appeal from the 56th District Court
                           Galveston County, Texas
                        Trial Court Case No. 07CR0760



                                   OPINION

      A jury convicted appellant Litrey Demond Turner of capital murder, and in

accordance with the mandatory sentencing statute that was in effect at the time of

sentencing, the trial court sentenced him to life in prison without the possibility of
parole.1 In three issues, Turner challenges his sentence arguing that because he

was only 15 years old at the time of the offense, his sentence is unconstitutional.

In two additional issues, he challenges the legal sufficiency of the evidence to

support a conviction for either capital murder or murder, arguing that there is no

evidence that he intended to kill the complainant.

      Although the evidence is legally sufficient to support his conviction,

Turner’s sentence is unconstitutional. See Miller v. Alabama, 132 S. Ct. 2455,

2464 (2012). Accordingly, we reverse the sentence and remand this case for a new

sentencing hearing.

                                   Background

      In early August 2006, when he was 15 years old, Litrey Turner moved in

with his aunt, Donna Morris, at the Northern Pines apartment complex in

Dickinson, Texas. According to Morris, Turner began spending time with Andrew

Brown, a teenager who wore dreadlocks and who also lived at the apartment

complex. Brown sometimes went by the street name “Young Money.”

      On August 21, 2006, Kathy Porter, who cared for her grandchildren at

Northern Pines, saw a group of four or five teenage boys standing outside in the

courtyard, including Brown, whom she recognized by his dreadlocks. She saw

1
      See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2), 29.02(a)(1), 31.03 (West
      2011 & Supp. 2012); Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, sec.
      12.31, 2005 Tex. Gen. Laws 2705 (former version of TEX. PENAL CODE ANN.
      § 12.31), amended by Act of July 11, 2013, 83rd Leg. 2d C.S., ch. 2 (S.B. 2).
                                         2
Brown pass around a small black handgun and hand it to another boy who was

several inches taller. She did not know whether Turner was among the boys in the

courtyard that day.

      That afternoon, Turner and Brown went to a nearby convenience store called

“Storekeepers.” Storekeepers was less than a block away from Northern Pines.

The complainant Phoung Lam worked the afternoon-to-night shift, until closing

time around 11:00 p.m. The store’s surveillance video from the afternoon of

August 21, 2006, showed Turner purchasing a drink or snack while Brown danced

in the aisle near the counter. The black-and-white video showed that Turner was

several inches taller than Brown and that both were dressed in dark clothing.

      Sheryl Mitchell also lived at Northern Pines. She testified that Brown,

Turner, and Alexis Moore were at her apartment in the afternoon or evening of

August 21, when Brown showed his gun to Alexis and talked about his intention to

rob someone.     Although Mitchell testified that Turner was present for this

conversation, Alexis, who is Turner’s cousin and who admitted to several prior

convictions, denied being at Mitchell’s apartment with Brown and Turner.2

      Michael Davis was a cousin of siblings Brittney and Alexis Moore, who

lived at Northern Pines. On August 21, 2006, Davis visited his cousins at the


2
      Alexis said that Brown once showed her a gun that he had in his waistband, but
      Turner was not there and that this happened near Brown’s apartment while she
      was waiting to make a drug deal.
                                         3
apartment complex. Around 9:00 or 9:30 p.m., he walked to Storekeepers. He saw

Brown and Turner standing by the convenience store’s dumpster at approximately

9:30 p.m. He noticed them breaking off pieces of boards from the fence around the

dumpster, and he thought it looked suspicious.

        Brittney Moore and Trikeith Sanders also went to Storekeepers that night.

They testified that they saw Turner and Brown outside the convenience store

around 10:00 p.m. and that Brown asked if a car parked in front of the store was an

unmarked police car. They both said that when Brown asked the question, Turner

was standing with him. Turner was wearing a black shirt and black pants at the

time.    None of these witnesses—Michael Davis, Brittney Moore, or Trikeith

Sanders remained at Storekeepers—instead they left to return to the apartment

complex or to run other errands.

        The Storekeepers surveillance video shows what happened at approximately

11:00 p.m. Phuong Lam walked in front of the counter to lock up the store. As

she put the key in the lock, the door opened from the outside, and she struggled to

close the door but was pulled outside. She returned inside and again struggled to

close and lock the door. An assailant briefly came slightly past the door frame,

into the store. Lam fell to the floor.

        Around 11:00 p.m., Brittney Moore and Trikeith Sanders were again

walking past the convenience store when Brittney noticed Lam’s car was still

                                         4
outside. This struck her as odd because “she’s never there that late.” Brittney

walked to the door and heard Lam sobbing. Both she and Sanders saw Lam lying

by the door in a pool of blood.

      Just then, Davis came upon them as he was again walking in the direction of

the store. They told him that Lam was dead. Davis walked back to the store with

them, and he saw Lam lying in a pool of blood, barely breathing, and moaning.

Davis called 9-1-1 and requested assistance. He and Sanders then heard Brown

calling out from behind the dumpster.

      Police responded within minutes, and Lam, who still had a faint pulse, was

transported to an emergency room where she later died. Shortly after the incident,

the police received an anonymous tip that they should “check out Young Money

from New Orleans at Northern Pines.” Sgt. J. Jaekel, a patrol supervisor with the

City of Dickinson Police Department, spoke with the three witnesses who

encountered Lam shortly after the attack. He decided that investigators should go

to Northern Pines to search for the suspect. While Sgt. Jaekel was coordinating

efforts, Deputy J. Gillane of the Galveston County Sherriff’s Department went to

the apartment complex, where he saw two young men. Deputy Gillane testified

that they appeared extremely nervous and kept looking back toward the police car.

He watched them go into an apartment. Almost immediately, he saw one of them

leave and go into a different apartment.

                                           5
      Casey Walker, another Northern Pines resident, testified that Brown and

Turner approached him that night and asked if they could go into his apartment.

He declined, they left, and he watched them go to Mitchell’s apartment. He did

not see either of them leave before the police arrived and arrested them.

      Both Mitchell and her then-boyfriend, Yancy McDow, testified that Brown

and Turner came to her apartment a little after 11:00 p.m. McDow said Turner was

“nervous,” “couldn’t sit still,” “was tapping his feet on the floor,” and “would get

out of his seat and would look out of the blinds.” Brown, however, was calm.

Turner left after less than five minutes and went to his aunt’s apartment.

      Morris said that sometime after 11:30 p.m. both Turner and Brown came

from the back of her apartment to the front, implying that they had entered the

apartment through the rear bedroom window, which they often left open and

sometimes used for passing groceries or laundry into the house. Morris testified

that as Brown left, he instructed Turner to keep quiet.

      Sgt. Jaekel arrived at Northern Pines after Turner left Mitchell’s apartment.

Deputy Gillane showed him which apartments Brown and Turner had entered. A

few minutes after Turner left Mitchell’s apartment, Sgt. Jaekel arrested Brown

there. He then went to Morris’s apartment.




                                          6
       Turner’s mother, Brenda, was at Morris’s apartment on the night of the

shooting. Brenda said that she did not see Brown in Morris’s apartment that night.

Brenda thought her son was in the back bedroom all night.

       Sgt. Jaekel asked Turner where he had been that night. Turner said he and

Brown had been together at his apartment all night. Sgt. Jaekel then confronted

Turner with the information that Brown had already been found in another

apartment. He arrested Turner for making a false report and placed him in a

sheriff’s patrol car.

       Police then obtained consent to search Mitchell’s, Brown’s, and Morris’s

apartments. In Mitchell’s apartment, police found no evidence pertaining to the

charged offense.        In Brown’s apartment, police found: (1) a live .38-caliber

cartridge in Brown’s closet, (2) a second cartridge in a shoe box near the closet,

(3) two framed photographs hanging on the wall—one showing Brown holding

what appeared to be a .38-caliber revolver and marijuana and the other showing

Brown holding a shotgun and “quite a bit of what appears to be cocaine and

possibly marijuana.” They did not find a gun.

       In Turner’s bedroom in Morris’s apartment, police found a black shirt and

black pants, as well as a black purse containing Lam’s social security card. The

clothing matched the description of what Turner had worn that night. The purse




                                           7
had been hidden behind the bed and covered with a pillow. Police did not find a

gun in Turner’s bedroom.

      J. Rojas, a forensic chemist with the Texas Department of Public Safety’s

crime laboratory, tested the black pants that were found in Turner’s room. Rojas

found one particle on the pants that was indicative of gunshot residue, and he

explained that his findings could mean that the person who wore the pants fired the

gun, handled the gun, or was near a gun when it was fired. He also testified that

other items, like fireworks or brake lights, could produce similar particles.

      C. Story, a forensic scientist with the Texas Department of Public Safety

Crime Laboratory, analyzed the bullet recovered from Lam and compared it to the

cartridge found in Brown’s closet and the photographs taken from his apartment.

Story testified that the bullet that he tested could have been fired from the handgun

shown in the photograph with Brown.

      Turner was taken to the police station. Because he was under the age of 18,

a justice of the peace came to the police station and advised him of his legal rights.

Turner then gave a statement to the police in the form of an interview. Initially, he

said that he and Brown watched a movie at his house that night and later walked to

Storekeepers shortly before 11:00 p.m. with Brown’s father. Turner told the police

that he did not know Brown was armed at that time or that he intended to rob the




                                          8
convenience store. Turner did, however, state that he had previously seen Brown

with a gun, which Brown hid behind some steps at the apartment complex.

      During the interview, Turner repeatedly denied any involvement in the

robbery and murder, and he initially denied any knowledge of it. He repeatedly

said, “I didn’t do it.” He told the detective that he was going to the store with

Brown to get snacks. Turner said that he first saw the gun when Brown showed it

to Lam during the robbery. Turner said that he stayed near the dumpster because

he wanted to return home. As Lam was locking up the store, he saw Brown point a

gun at her, demand her purse, and then shoot her. Turner said he ran home, took a

bath, and changed his clothes. He also said that he normally kept his ground-floor

bedroom window open and that Brown climbed in the window and stashed Lam’s

purse in his room.

      The day after Turner’s arrest, Morris found a black coin purse in a basket in

Turner’s bedroom. She looked inside and found Lam’s driver’s license. She also

found a ski mask, a bandana, and a ball cap in Turner’s bedroom, none of which,

she said, belonged to Turner. Morris gave these things to the police. Forensic

analysis showed that Turner’s DNA was found on the black coin purse, but

Brown’s was not. Brown’s DNA was found on the knit cap, but Turner’s was not.

      That same day Brown’s parents came to Morris’s apartment. Morris said

they searched around and went into her daughters’ bedroom, ostensibly looking for

                                        9
the gun used in the robbery. Morris’s niece, Saqouia Turner, had stayed overnight

and, when Brown’s parents arrived she was sleeping in the bedroom that Turner

had used. Brown’s father searched the room where Saqouia slept; meanwhile his

mother kept Morris occupied in conversation in the living room. When Morris

recalled her niece was sleeping in the back bedroom, she went to the bedroom and

found Brown’s father searching in a laundry basket. As Brown’s mother moved to

lift the cover on the bin where Turner stored his clothes, Brown’s father said, “no,”

and informed her that he had already looked in that bin. After Brown’s parents

left, Morris and Saqouia opened the bin, and they found a black gun and a cell

phone. Saqouia said that it was a black revolver which “had four bullets and one

was missing.” and that it was lying atop a shirt. Morris said when Saqouia opened

the trunk the gun fell to the bottom. Both Morris and Saqouia testified that they

believed Brown’s parents put the gun in the room when they came over, but

Saqouia conceded that she did not actually know how the gun got there. Acting on

the belief that Brown’s parents were trying to frame her brother, Saqouia wrapped

up the gun, placed it in a black garbage bag, and threw it in or near the apartment

complex dumpster. Morris eventually told the police what Saqouia had done. The

police, along with Saquoia, searched for the gun, but they did not find it.

      Turner was charged with capital murder. He pleaded not guilty, and his case

was tried to a jury. The court’s charge included capital murder and the lesser-

                                         10
included offenses of murder, aggravated robbery, and robbery. It also instructed

the jury on the law of parties. The jury found Turner guilty of capital murder. In

accordance with the statute in effect at the time of this offense, the court imposed

the mandatory statutory sentence of life imprisonment without parole. See Act of

May 28, 2005, 79th Leg., R.S., ch. 787, § 1, sec. 12.31, 2005 Tex. Gen. Laws 2705

(amended 2013) (former TEX. PENAL CODE § 12.31). Turner appealed.

                                       Analysis

   I.      Sufficiency of the evidence of capital murder

        In his fourth issue, Turner challenges the legal sufficiency of the evidence to

support his conviction for capital murder, arguing that he did not intend to cause

Lam’s death during the robbery and that the law of parties does not apply in this

case.

        We review the legal sufficiency of the evidence by viewing the evidence in

the light most favorable to the verdict to determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The standard

is the same for both direct and circumstantial evidence cases. King v. State, 895

S.W.2d 701, 703 (Tex. Crim. App. 1995). The trier of fact is the sole judge of the

weight and credibility of the evidence. See Lancon v. State, 253 S.W.3d 699, 707

                                           11
(Tex. Crim. App. 2008). We do not resolve any conflict of fact, weigh any

evidence, or evaluate the credibility of any witnesses, as this was the function of

the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999). We must resolve any inconsistencies in the evidence in favor of the verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

      Turner argues that applying the law of parties to capital murder effectively

eliminates the mens rea element of capital murder, which the State must prove.

First, Turner argues that section 19.03 of the Texas Penal Code, which sets forth

the elements of capital murder, incorporates section 19.02(b)(1), which establishes

the mens rea for murder, “A person commits an offense if he . . . intentionally or

knowingly causes the death of an individual.”           TEX. PENAL CODE ANN.

§§ 19.02(b)(1), 19.03 (West 2011 & Supp. 2012). Turner argues that the evidence

against him is insufficient because there is no evidence that he intended to kill

Lam. Second, Turner argues that the evidence is also insufficient under the law of

parties because there is no evidence that he had the intent to commit robbery and to

kill Lam.

      Section 7.02 of the Texas Penal Code provides that:

            (a) A person is criminally responsible for an offense committed
      by the conduct of another if:

                  (1) acting with the kind of culpability required for the
            offense, he causes or aids an innocent or nonresponsible person
            to engage in conduct prohibited by the definition of the offense;
                                        12
                   (2) acting with intent to promote or assist the commission
            of the offense, he solicits, encourages, directs, aids, or attempts
            to aid the other person to commit the offense; or

                  (3) having a legal duty to prevent commission of the
            offense and acting with intent to promote or assist its
            commission, he fails to make a reasonable effort to prevent
            commission of the offense.

             (b) If, in the attempt to carry out a conspiracy to commit one
      felony, another felony is committed by one of the conspirators, all
      conspirators are guilty of the felony actually committed, though
      having no intent to commit it, if the offense was committed in
      furtherance of the unlawful purpose and was one that should have
      been anticipated as a result of the carrying out of the conspiracy.

TEX. PEN. CODE ANN. § 7.02 (West 2011). Under section 7.02(b) the intent to

participate in a conspiracy to commit an underlying felony supplies the mens rea

for another felony actually committed in furtherance of the unlawful purpose. See

id. The Court of Criminal Appeals has long held that the law of parties applies to

capital murder. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.)

(“A person can be convicted of capital murder as a party to the offense, without

having had the intent to commit the murder.”), cert. denied, 131 S. Ct. 3073

(2011); Valle v. State, 109 S.W.3d 500, 503–04 (Tex. Crim. App. 2003) (“A

defendant may be convicted of capital murder under § 7.02(b) without having the

intent or actual anticipation that a human life would be taken.”); Johnson v. State,

853 S.W.2d 527, 535 (Tex. Crim. App. 1992) (holding that an individual may be




                                        13
found guilty of capital murder based on the law of parties); see also Cienfuegos v.

State, 113 S.W.3d 481, 493 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Because the issue is well-settled, we reject Turner’s arguments that the law

of parties does not apply to his case and that the evidence is legally insufficient

because there is no evidence that he intended to kill Lam. In addition, the evidence

is legally sufficient to support Turner’s conviction of capital murder under the law

of parties. Under the law of parties, if Turner conspired with Brown to rob the

store, Turner could be held criminally liable for capital murder committed by

Brown. A person commits robbery if, while unlawfully appropriating property

with the intent to deprive the owner of the property, he intentionally, knowingly, or

recklessly causes bodily injury to another or intentionally or knowingly threatens

or places another in fear of imminent bodily injury or death. See TEX. PENAL CODE

ANN. § 29.02 (West 2011). A person commits the offense of capital murder if he

intentionally or knowingly causes the death of an individual while in the course of

committing or attempting to commit certain delineated felonies, including robbery.

See id. § 19.02(b)(1) (West 2011), § 19.03(a)(2) (West Supp. 2012). Thus, if

Brown committed the murder in an attempt to carry out the conspiracy to commit

robbery and if Turner should have anticipated his actions, he can be held

criminally responsible even in the absence of intent to commit capital murder. Id.

§ 7.02(b) (West 2011); Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston

                                         14
[1st Dist.] 2006, pet. ref’d). Accordingly, the jury did not have to find that Turner

personally intended Lam’s death to convict him of capital murder.

      Though the evidence at trial was somewhat conflicting, it was for the trier of

fact to determine the credibility of the evidence and the weight to be given to it.

See Lancon, 253 S.W.3d at 707. Here, the evidence that a rational trier of fact

could have credited showed that Turner was acquainted with Brown and knew that

he had a gun. Turner was present when Brown stated his intention to commit a

robbery, yet he nevertheless went with Brown to Storekeepers twice that day, and

he was with Brown when he inquired if a parked car was an unmarked police car.

Turner admitted on his videorecorded statement to police that he was present when

Brown robbed and shot Lam. The store’s surveillance video showed a struggle

between Lam and her assailant as she tried to lock the door from inside the store

and was pulled outside before being shot. Two people—a police officer and a

neighbor—watched Turner and Brown return to Northern Pines together. Both

saw them enter Sheryl Mitchell’s apartment, and one saw Turner go to his aunt’s

apartment shortly thereafter. Lam’s purse was found in Turner’s bedroom, and

although Turner told police that Brown climbed through the window and stashed

the purse there, a rational factfinder could have credited the eyewitness testimony

that showed Brown returning to Northern Pines and going only to Mitchell’s

apartment before his arrest. Thus, a rational juror could have concluded that

                                         15
Turner brought Lam’s purse into his room. Other evidence was also found in

Turner’s room, including clothing matching the description of what he wore that

night, a ski mask with Brown’s DNA on it, and Lam’s coin purse and social

security card. In addition, because Lam’s coin purse had evidence of Turner’s

DNA and not Brown’s DNA, a rational finder of fact could conclude that only

Turner, not Brown, handled it. Additional forensic evidence showed that there was

gunshot residue on the pants found in Turner’s room, which matched the

description of what he wore that night.        A rational trier of fact could have

concluded, at the very least, that Turner was present and close enough to the

shooter for that material to be present on those pants.

      Turner’s behavior after the event also supports an inference of his

participation in the crime. He was extremely nervous at Mitchell’s apartment, and

he bathed and changed his clothes shortly after the shooting. See Christensen v.

State, 240 S.W.3d 25, 31–32 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(“The agreement to accomplish a common purpose, if any, must be made before or

contemporaneous with the criminal event, but in determining whether one has

participated in an offense, the court may examine the events occurring before,

during, and after the commission of the offense.”) (citing Wygal v. State, 555

S.W.2d 465, 469 (Tex. Crim. App. 1977)).




                                          16
         The evidence also supports an inference that the shooting occurred in

furtherance of a plan to commit robbery. Turner told police that the first time he

saw the gun that night was when Brown showed Lam the gun and demanded her

purse. According to Turner, after several moments Brown shot Lam.

         We conclude that the cumulative effect of the incriminating evidence of the

events before, during, and after the commission of the offense would permit a

rational trier of fact to have found beyond a reasonable doubt that Turner and

Brown conspired to commit robbery, that the murder of Lam was in furtherance of

that conspiracy, and that Turner should have anticipated Brown’s actions. See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Vodochodsky

v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We hold that the evidence

is legally sufficient to support Turner’s capital murder conviction. We overrule

issue four, and we need not address issue five.

   II.      Sentencing

         In his first three issues, Turner challenges the sentence he received as

unconstitutional and in violation of the Eighth Amendment’s prohibition of cruel

and unusual punishment. In his first issue, he argues that Miller v. Alabama, 132

S. Ct. 2455 (2012), applies retroactively to this case. Miller held that a mandatory

sentence of life without parole for those under the age of 18 at the time of their

crimes violates the Eighth Amendment’s prohibition on “cruel and unusual

                                          17
punishments.” Id. at 2460. Accordingly, in his second issue, Turner argues that

his mandatory sentence of life without parole violated his Eighth Amendment

rights because he was 15 years old at the time of the crime. Turner’s third issue

argues that even if the possibility of parole had been permitted under the statute

applicable at the time of his sentencing hearing, a mandatory life sentence would

still be unconstitutional.      Turner thus argues that the sentencing statute is

unconstitutional as applied to him and that this court cannot amend his sentence

and render judgment that his sentence be life with the possibility of parole. The

State concedes error on Turner’s first two issues.         Specifically, “[t]he State

concedes Miller applies to Turner’s case, and Turner should be resentenced.” We

agree that Miller is controlling and that the sentencing statute is unconstitutional as

applied to Turner. We therefore sustain Turner’s first two issues.

      Both Turner and the State pray for remand for a new sentencing hearing.

Accordingly, we remand this case for a new sentencing hearing in accordance with

Miller and state law as recently revised in response to Miller. See Act of May 28,

2005, 79th Leg., R.S., ch. 787, § 1, sec. 12.31, 2005 Tex. Gen. Laws 2705 (former

version of Tex. Penal Code Ann. § 12.31), amended by Act of July 11, 2013, 83rd

Leg. 2d C.S., ch. 2 (S.B. 2).




                                          18
                                    Conclusion

      We reverse the trial court’s judgment as to punishment, and we remand for a

new sentencing hearing.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

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




                                        19
