             NO.

                   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
                                         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


                                                            i
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . 11

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




                                                     ii
                                      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

                                                           iii
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




                                                            iv
                               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 4th day of August, 2015.



                                     /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       ,August 4th 2015
      (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             ,August 4th 2015
      (Signature of filing party and date)

      John Tatum
      (Printed name)

      John Tatum, Attorney at Law

      Emailed Copy of Petition




                                         11
APPENDIX A




    12
