Affirmed as Modified and Memorandum Opinion filed August 22, 2013.




                                      In the

                    Fourteenth Court of Appeals

                              NO. 14-12-00389-CR

                  DONTREAL DAVAL BROWN, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1231465

                  MEMORANDUM OPINION

      Appellant Dontreal Daval Brown was convicted by a jury of capital murder.
The trial court sentenced appellant to mandatory life without parole. On appeal, he
presents five issues. First, appellant contends the trial court committed reversible
error in the application paragraph of the jury charge. Second, appellant argues that
the trial court committed reversible error by excluding former testimony of a
witness from a co-defendant’s trial. Third, he argues that the court costs imposed
in his judgment are supported by insufficient evidence. And fourth and fifth,
appellant contends that mandatory life without parole violates both the United
States and Texas Constitutions. We sustain appellant’s third issue. Finding no
reversible error in his remaining issues, we modify the trial court’s judgment to
delete the specific amount of costs, and affirm the judgment as modified.

                 I.        FACTUAL AND PROCEDURAL BACKGROUND

      Appellant Dontreal Daval Brown was indicted for the felony offense of
capital murder, alleged to have been committed on or about August 31, 2009.

      On August 31, 2009, shortly after 10:00 p.m., a car pulled up to the Siesta
Food Mart. A man later identified as Milton Holiday entered the convenience
store, bought a bottle of water from the clerk, Joe Fernandes, and exited the store.
Approximately ten minutes later, three other men—appellant, Vondra Joseph, and
Neiman Nelson—entered the store, “clothed from head to toe, including gloves.”
Both appellant and Joseph were carrying firearms that appeared to be semi-
automatic. The men had previously met at Joseph’s house and decided to “hit a
lick,” which means they planned “to go rob someone.” After the men entered the
store, Nelson demanded money from the clerk, but he either could not or did not
know how to open the cash register. Joseph fatally shot the clerk in the abdomen.

      Detectives Mike Miller and Todd Miller with the Houston Police
Department’s homicide division downloaded the store’s surveillance video, and
publicly released still images of Holiday and the car.1 As a result, Holiday turned
himself in. Holiday provided a voluntary statement, which led to the development
of appellant, Joseph, and Nelson as the suspects involved in the robbery.

      M. Miller and T. Miller interviewed appellant, in custody for another

      1
          This vehicle belonged to Holiday.

                                              2
criminal matter at the time, and appellant provided a voluntary statement.
Appellant’s statement generally corroborated the store’s video footage; appellant
stated that he and Joseph had guns during the robbery and that Joseph shot
Fernandes. According to appellant, Joseph shot Fernandes because he “jumped at”
appellant. Nothing in the video shows any attempt by Fernandes to “jump at”
appellant or defend himself in any way.

      The jury convicted appellant of capital murder, and the trial court assessed
appellant’s punishment at automatic life in prison without the possibility for
parole. In five issues, appellant argues that the trial court committed error (1) in its
jury charge, by allowing appellant to be convicted as a party to capital murder
under a reduced burden of proof; (2) by denying the admission of Holiday’s prior
testimony from Joseph’s capital murder trial; (3) by imposing court costs of $280
without sufficient evidence; and (4) and (5) by imposing mandatory life without
parole in violation of the Eighth Amendment and article 1, section 13, of the Texas
Constitution.

                                II.       ANALYSIS

A. There was no error in the trial court’s jury charge.

      In his first issue, appellant argues that language used in the application
paragraph of the jury charge was ambiguous and allowed his conviction of capital
murder—as a party pursuant to section 7.02(a)(2) of the Texas Penal Code—based
solely on proof that he was a party to robbery. Appellant further contends that he
properly preserved charge error, and that inclusion of the misleading application
paragraph caused him “some harm.” The State responds that no error existed in
appellant’s charge, any error is subject to review for egregious harm because
appellant failed to specifically object to this application paragraph, and appellant
was not egregiously harmed. We conclude that no error existed in the jury charge.
                                           3
      1. Standard of review

      We review a claim of jury charge error using the two-step procedure set out
in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v.
State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). We first determine whether
there is error in the charge. Id. (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005)). Then, if error is found, we analyze that error for harm. Celis
v. State, —S.W.3d—, No. PD-1584-11, 2013 WL 2373114, at *3 (Tex. Crim. App.
May 15, 2013) (citing Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.
2012)).

      Error preservation does not become an issue unless harm is assessed. See
Middleton v. State, 125 S.W.3d 450, 453–54 (Tex. Crim. App. 2003). If there was
error and the appellant objected at trial, we reverse if the error “is calculated to
injure the rights of the defendant,” which has been defined to mean that there is
“some harm.” Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171).
If the error was not objected to, it must be “fundamental” to be reversible, meaning
we reverse only if the error was so egregious and created such harm that the
defendant “has not had a fair and impartial trial.” Id. (quoting Almanza, 686
S.W.2d at 171).

      2. The trial court’s jury charge

      Appellant’s indictment for capital murder alleged that he, on or about
August 31, 2009, did unlawfully, while in the course of committing and attempting
to commit the robbery of Joe Fernandes, intentionally cause Fernandes’s death by
shooting him with a firearm. A person commits the offense of murder if he
intentionally or knowingly causes the death of an individual. TEX. PENAL CODE
ANN. § 19.02(b)(1) (West 2011). A person commits the offense of capital murder
if he intentionally commits such murder in the course of committing or attempting
                                         4
to commit the offense of robbery. Id. § 19.03(a)(2) (West Supp. 2012). A person
is criminally responsible for an offense committed by the conduct of another if
“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.” Id. § 7.02(a)(2) (West 2011).

      The charge included a standard instruction on the law of parties that
substantially tracked section 7.02(a)(2).      The charge then instructed in the
application paragraph at issue:

            Now, . . . [i]f you find from the evidence beyond a reasonable
      doubt that on or about the 31st day of August, 2009, in Harris County,
      Texas, Vondra Joseph and/or Milton Holiday and/or Neiman Nelson,
      did then and there unlawfully, while in the course of committing or
      attempting to commit the robbery of Joe Fernandes, intentionally
      cause the death of Joe Fernandes by shooting Joe Fernandes with a
      deadly weapon, namely a firearm, and that defendant, Dontreal Daval
      Brown, with the intent to promote or assist the commission of the
      offense, if any, solicited, encouraged, directed, aided or attempted to
      aid Vondra Joseph and/or Milton Holiday and/or Neiman Nelson to
      commit the offense, if he did;

      . . . then you will find the defendant guilty of capital murder, as
      charged in the indictment.
(Emphases added).

      At the charge conference, appellant’s trial counsel objected to the trial
court’s inclusion of “the offense” language in both places as an “improper
comment on the weight as it is in the charge” and requested that the court define
those “offenses” for the jury. The trial court overruled the objections.

      3. There was no error in the application paragraph at issue.

      Appellant argues that a plain reading of the challenged application paragraph
authorized the jury to convict him of capital murder under section 7.02(a)(2) based

                                          5
on proof that he intended to promote or assist “the offense” of robbery alone, not
that he intended to promote or assist the actual killing of Fernandes. Appellant
supports this argument with no authority, but instead insists that the undefined
references to “the offense” would “actively mislead” a reasonable jury because
“[s]hooting someone is not necessarily an offense whereas ‘robbery’ does carry
that connotation.” We disagree.

        “In examining the charge for possible error, reviewing courts must examine
the charge as a whole instead of a series of isolated and unrelated statements.”
Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (internal quotation
marks omitted). Here, the jury charge contained the correct abstract definition of
party liability according to section 7.02(a)(2). The application paragraph specified
that it applied to appellant’s indicted charge of capital murder,2 and the jury charge
contained the correct abstract definitions of murder and capital murder. Thus, the
State’s theory under section 7.02(a)(2) was:

       Joseph committed murder by intentionally or knowingly causing
       Fernandes’s death by shooting him with a firearm;

       Joseph committed capital murder by intentionally committing murder in the
       course of commission of a robbery; and

       appellant committed capital murder because he was criminally responsible
       for Joseph’s commission of murder in the course of commission of a robbery
       by, with intent to promote or assist Joseph’s conduct in shooting Fernandes
       and causing his death, soliciting, encouraging, directing, aiding, or
       attempting to aid Joseph in Fernandes’s murder.

       We cannot agree that a reasonable jury would have been confused or misled
by the application paragraph’s use of “the offense” because this language was

       2
          The application paragraph for the lesser offense of aggravated robbery by threat
followed later in the charge. The charge specified that the jury was only to consider aggravated
robbery if it had a reasonable doubt or could not agree on capital murder.

                                               6
unambiguous.    In Holford v. State, the First Court of Appeals considered a
virtually identical section 7.02(a)(2) application paragraph. 177 S.W.3d 454 (Tex.
App.—Houston [1st Dist.] 2005, pet ref’d). There, as here, the appellant argued
that use of the term “the offense” within the application paragraph was ambiguous
and thus the jury was permitted “to convict him as a party to capital murder if he
intended to aid only in the robbery, as opposed to the required intent to aid in the
murder.” Id. at 460. The challenged application paragraph in Holford stated:

            If you find from the evidence beyond a reasonable doubt that on
      or about the 13th day of January, 2002, in Harris County, Texas,
      Harold Louis Vaughn, did then and there unlawfully while in the
      course of committing or attempting to commit the robbery of Trevor
      Cook, intentionally cause the death of Trevor Cook by [cutting Trevor
      Cook with a deadly weapon, namely a knife/striking Trevor Cook
      with a deadly weapon unknown to the Grand Jury], and that the
      defendant, David Charles Holford, with the intent to promote or assist
      the commission of the offense, if any, solicited, encouraged, directed,
      aided or attempted to aid Harold Louis Vaughn to commit the
      offense, if he did;
      . . . then you will find the defendant guilty of capital murder, as
      charged in the indictment.

Id. (emphases added). The Holford court concluded that there was no charge error:

      Read logically, the prepositional phrase “with the intent to promote or
      assist the commission of the offense” refers to Cook's murder, that
      occurred “while in the course of committing or attempting to commit
      the robbery.” Likewise, the clause “solicited, encouraged, directed,
      aided or attempted to aid Harold Louis Vaughn to commit the
      offense” refers to Cook’s murder.

Id. at 461. Similarly, a logical reading of appellant’s application paragraph leads
us to the same conclusion. As in Holford, appellant’s charge describes capital
murder as murder necessarily occurring while in the course of committing or
attempting to commit robbery, and thus required the jury to find that appellant,

                                         7
with the intent to promote or assist Joseph in intentionally causing the death of
Fernandes, solicited, encouraged, directed, aided, or attempted to aid Joseph in
intentionally causing the death of Fernandes, while in the course of committing or
attempting to commit robbery. See id. “[W]hile in the course of committing or
attempting to commit the robbery” functions solely as a subordinate adverb clause
that describes when Fernandes’s murder must have occurred. “[T]he offense” in
the prepositional phrase “with the intent to promote or assist the commission of the
offense” refers back to the immediately preceding noun clause “that . . . Joseph . . .
did then and there unlawfully . . . intentionally cause the death of Joe Fernandes by
shooting Joe Fernandes with a deadly weapon, namely a firearm.” Thus, “the
offense” is Fernandes’s murder. See id. Likewise, “the offense” in the verb phrase
“solicited, encouraged, directed, aided or attempted to aid [Joseph] to commit the
offense” refers back to Fernandes’s murder. See id.

       We conclude that no error existed in the application paragraph at issue,
which properly permitted the jury to find appellant guilty of capital murder as a
party under section 7.02(a)(2). Finding no error in the jury charge, we need not
reach appellant’s arguments as to harm,3 and therefore, we overrule his first issue.

       3
          Even if there were error in the challenged application paragraph, and allowing that
appellant sufficiently preserved error, we cannot agree that the record reveals “some harm.” See
Barrios, 283 S.W.3d at 350; see also Vasquez, 389 S.W.3d at 368–69 (jury charge error harm
assessment considers entire jury charge, state of the evidence, arguments of counsel, and other
relevant information). A review of the entire jury charge reveals proper abstract instructions on
capital murder, murder, and section 7.02(a)(2) party liability; and the application paragraph at
issue specified that it applied to the indicted charge of capital murder. Moreover, the charge
properly instructed the jury on party liability to capital murder as a co-conspirator. See TEX.
PENAL CODE ANN. § 7.02(b) (West 2011). The state of the evidence reveals that, as discussed
infra in Section II.B.2, the jury reasonably could have found appellant had the intent to promote
or assist Fernandes’s murder beyond a reasonable doubt. This evidence also would have
permitted a rational jury to convict appellant as a party to capital murder as a co-conspirator,
which does not require specific intent to promote or assist murder, but rather only that murder
should have been anticipated by appellant as a result of carrying out the conspiracy to commit
robbery. See id. Finally, no one argued at closing that a section 7.02(a)(2) party conviction for
                                               8
See Celis, 2013 WL 2373114, at *3 (“Because there is no charge error in this case,
we need not conduct a harm analysis.”); Barrios, 283 S.W.3d at 353 (same).

B. The trial court did not reversibly err in excluding Holiday’s former
   testimony.
        In his second issue, appellant argues that the trial court abused its discretion
when it refused to admit portions of Holiday’s prior testimony at Joseph’s trial on
the basis of hearsay.        Appellant maintains “Holiday’s testimony would have
corroborated [appellant’s] contention that he did not intend to kill Joe Fernandes
when they robbed the convenience store.” We conclude that the trial court did not
abuse its discretion in excluding Holiday’s former testimony and, in any event, any
error in excluding the testimony was harmless.

       Rule 804(b)(1) allows the admission of former testimony if a declarant is
unavailable as a witness. TEX. R. EVID. 804(b)(1) (providing that “[i]n criminal
cases, testimony given as a witness at another hearing of the same or a different
proceeding, if the party against whom the testimony is now offered had an
opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination” is not excluded as hearsay).              We review a trial court’s
decision on whether to admit former testimony under rule 804(b)(1) for an abuse of
discretion. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994) (en banc).
We do not conduct a de novo review, but instead limit our role to determining
whether the record supports the trial court’s ruling. Id. A trial court’s exclusion of
testimony is an abuse of discretion only if the decision lies outside the zone of
reasonable disagreement. See Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim.

capital murder only required a showing that appellant specifically intended to promote or assist
the robbery. In fact, the State emphasized its section 7.02(b) co-conspirator theory, which
alternative theory the jury was properly permitted to convict appellant of based on the charge.
See Holford, 177 S.W.3d at 462–63 (jury need not choose unanimously between theories of
primary or party liability where sole actus reus is murder).

                                               9
App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)
(op. on reh’g).   A trial court abuses its discretion only if we can say with
confidence that no reasonable perception of the matter under consideration could
have yielded the court’s decision. See Montgomery, 810 S.W.2d at 391.

      A witness is rendered unavailable if he invokes his Fifth Amendment
privilege not to testify. Jones v. State, 843 S.W.2d 487, 490 (Tex. Crim. App.
1992), abrogated on other grounds, Maxwell v. State, 48 S.W.3d 196 (Tex. Crim.
App. 2001) (grand jury witness); Bryan v. State, 837 S.W.2d 637, 644 (Tex. Crim.
App. 1992), abrogated on other grounds, Trevino v. State, 991 S.W.2d 849, 853
(Tex. Crim. App. 1999) (defendant); see TEX. R. EVID. 804(a)(1) (witness is
unavailable if he “is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of the declarant’s statement”).
“[H]earings on the allegation brought against a criminal defendant,” including
trials and grand jury proceedings, satisfy the requirement that the testimony be
given at “another hearing of the same or a different proceeding.” See Jones, 843
S.W.2d at 490–91 (citing TEX. R. EVID. 804(b)(1)). The final requirement for
admission under rule 804(b)(1) is that the “party against whom the testimony is
now offered had an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.” Id. (citing TEX. R. EVID. 804(b)(1)). This
serves to protect the party against whom the hearsay evidence is offered from the
ill-effects of not being able to examine the witness who gave the testimony. Id. at
491. Rule 804(b)(1) does not require that the opponent of the evidence have had
an “identical” motive to develop the testimony, but rather only requires that he
have had a “similar” motive. Coffin, 885 S.W.2d at 147.




                                        10
      1. The trial court did not abuse its discretion in excluding Holiday’s
         testimony.
      Appellant contends that Holiday’s former testimony meets all of rule
804(b)(1)’s requirements. During his guilt phase, outside the presence of the jury,
appellant called Holiday to the stand. Holiday, who had testified for the State at
Joseph’s trial but whose criminal case was still pending, invoked the Fifth
Amendment. Appellant then moved to have certain pages of Holiday’s testimony
from Joseph’s trial admitted as former sworn testimony. The State objected on the
basis of hearsay, and the trial court sustained the objection.

      The only requirement at issue is whether the State’s motive to develop
Holiday’s testimony was similar. See id. Holiday’s former testimony does not
come from grand jury proceedings for the same trial, as in Jones, or from a retrial
of the same defendant, as in Bryan. The State argues that, even though Joseph and
appellant were co-defendants, the State did not have a similar enough motive to
develop Holiday’s testimony in Joseph’s trial for purposes of incriminating
appellant.

      Presuming without deciding, for purposes of our analysis, that Holiday’s
former testimony fell within rule 804(b)(1), we still conclude the trial court did not
abuse its discretion in refusing to admit the proffered testimony. Our analysis of
admissibility does not stop at whether Holiday’s former testimony meets rule
804(b)(1). See Jones, 843 S.W.2d at 492. When a trial court excludes evidence,
part of which is admissible and part of which is not, the party on the adverse side
of the ruling must separate the admissible evidence from the inadmissible evidence
and state the reason for its admissibility, e.g., which exception to the hearsay rule
he was relying upon or specifying how the evidence was not hearsay. See Willover
v. State, 70 S.W.3d 841, 845–46 (Tex. Crim. App. 2002); Jones, 843 S.W.2d at


                                          11
492–93; see also TEX. R. EVID. 103(a)(2). This is because “[i]nadmissible hearsay
testimony does not become admissible simply because it is contained within an
admissible document or transcript.” Jones, 843 S.W.2d at 492 (citing TEX. R.
EVID. 805). This is also because, as the Jones court explained in upholding the
exclusion of grand jury witness testimony:

       The trial court need never sort through challenged evidence in order to
       segregate the admissible from the excludable, nor is the trial court
       required to admit only the former part or exclude only the latter part.
       If evidence is offered and challenged which contains some of each,
       the trial court may safely admit it all or exclude it all, and the losing
       party, no matter who he is, will be made to suffer on appeal the
       consequences of his insufficiently specific offer or objection.
Id. Our review reveals that the requested excerpt of Holiday’s testimony contains
both admissible evidence—what appellant, Joseph, and Nelson did upon returning
to the car after the robbery—and presumptively inadmissible hearsay evidence—
appellant’s and Joseph’s out-of-court statements to Holiday. Although appellant’s
trial counsel identified certain transcript pages that he wanted to be admitted, he
did not segregate and specifically offer which portions of Holiday’s testimony he
sought to have admitted.           The only reason appellant provided in support of
admission of the entirety of the excerpt was rule 804(b)(1).4                       Under these
circumstances, the trial court was within its discretion to disallow all of the
requested evidence. See Willover, 70 S.W.3d at 847 (citing Jones, 843 S.W.2d at
492–93).




       4
         Specifically, appellant’s trial counsel stated: “This is not hearsay. It’s sworn testimony.
And [Holiday] has made himself unavailable, Judge. . . . I have made the Court aware of my
understanding of the hearsay exception to former testimony.” Even on appeal, appellant never
specifies how his out-of-court statements to Holiday would not otherwise be inadmissible as
hearsay.

                                                12
       2. Any error in excluding Holiday’s testimony was harmless.

       Appellant contends the trial court’s error prevented him from presenting
evidence in support of his defense that he did not have specific intent to kill
Fernandes.5 However, we conclude that any error in the exclusion of Holiday’s
former testimony was harmless. “With respect to the erroneous admission or
exclusion of evidence, constitutional error is presented only if the correct ruling
was constitutionally required; a misapplication of the rules of evidence is not
constitutional error.” Fox v. State, 115 S.W.3d 550, 563 (Tex. App.—Houston
[14th Dist.] 2002, pet ref’d). Thus, we generally analyze harm under rule 44.2(b)
because the error is not constitutional. Id.; see TEX. R. APP. P. 44.2. We disregard
such evidentiary error unless it affected appellant’s substantial rights; that is, if it
had a substantial and injurious effect or influence on the jury’s decision. See King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

       Our examination of the entire record leads us to conclude that the alleged
error did not affect any substantial right of appellant. First, substantially similar
testimony was admitted into evidence. The proposed testimony from Holiday was
that appellant asked Joseph why he shot Fernandes, and Joseph answered,
“Because he tried to grab me.” T. Miller testified appellant gave a statement that
the reason Joseph shot Fernandes was because the clerk “jumped at” or “grabbed”
appellant, and appellant did “say he didn’t know that was going to happen.”

       Moreover, there was other evidence from which the jury could have
reasonably inferred appellant’s intent to promote or assist Joseph in the murder of
Fernandes beyond a reasonable doubt. See Motilla v. State, 78 S.W.3d 352, 360


       5
         We note appellant does not argue that the erroneous exclusion of evidence amounted to
denial of his due process or other constitutional right. See Potier v. State, 68 S.W.3d 657, 659
(Tex. Crim. App. 2002) (en banc).

                                              13
(Tex. Crim. App. 2002) (“Though not dispositive, the evidence of the defendant’s
guilt is a relevant factor in conducting a harm analysis under Rule 44.2(b).”).
Appellant agreed to participate in “hitting a lick” at the convenience store and
served as the second gunman to Joseph. Appellant was captured on video as he
participated in the robbery with a semi-automatic firearm. He was shown checking
the manager’s office, “crouching down with the gun out,” walking with “his gun
out,” and going “behind the counter with the victim.” Appellant was holding the
firearm “[t]o be able to use it.” Finally, M. Miller testified that firearms are deadly
weapons, and it was “not unusual” and was “common sense” for someone to end
up hurt or dead in robberies involving firearms. See Jones v. State, 944 S.W.2d
642, 647 (Tex. Crim. App. 1996) (“The jury may infer the intent to kill from the
use of a deadly weapon unless it would not be reasonable to infer that death or
serious bodily injury could result from the use of the weapon.”). And T. Miller
testified appellant did not indicate “particularly” that he was shocked or surprised
by Joseph’s having shot Fernandes. On this record, we cannot conclude that the
exclusion of Holiday’s testimony had a “substantial or injurious” influence. See
King, 953 S.W.2d at 273.

C. The trial court erred in awarding a specific amount of court costs against
   appellant.
      In his third issue, appellant argues that there was insufficient evidence to
support the court costs of $280 assessed against him in the judgment. Appellant
contends that because there is no certified bill of costs, there is no way to
determine whether any costs are for attorney’s fees, which he contends cannot be
assessed against indigent defendants.      See TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West 2011).

      In Johnson v. State, 389 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.]


                                          14
2012, pet. granted), we held that when the record does not support the assessment
of a certain dollar amount in costs, the trial court errs in entering a specific dollar
amount in its judgment.        Appellant specifically requested the district clerk to
include the bill of costs in the appellate record, but none was provided.

      The State responds that numerous provisions in the Texas Code of Criminal
Procedure and the Local Government Code authorize various court costs to be paid
by appellant, totaling $404. Thus, the evidence is sufficient to support the $280 in
court costs assessed. We rejected this precise argument in Rogers v. State, —
S.W.3d—, No. 14-12-00182-CR, 2013 WL 2442194, at *8 (Tex. App.—Houston
[14th Dist.] June 6, 2013, no pet. h.). Therefore, because there is no evidence in
the record to support the trial court’s assessment against appellant of $280 as court
costs, we sustain his third issue and modify the trial court’s judgment to delete the
specific dollar amount of costs assessed. See id.; Johnson, 389 S.W.3d at 516.

D. The trial court did not violate appellant’s constitutional rights by imposing
   life without parole.
      In his fourth and fifth issues, appellant argues that the automatic punishment
of life without parole6 is unconstitutional under the Eighth Amendment of the
United States Constitution, as well as article 1, section 13, of the Texas
Constitution, because the sentencing scheme provides no vehicle for the
consideration of mitigating evidence.7 We disagree.

      Appellant acknowledges that this court consistently has held that a
mandatory life sentence does not amount to cruel and unusual punishment under
either constitution. E.g., Wilkerson v. State, 347 S.W.3d 720, 723 (Tex. App.—

      6
          See TEX. PENAL CODE ANN. § 12.31(a) (West 2011).
      7
           Appellant preserved error on these issues in a pretrial motion challenging the
constitutionality of the automatic life sentence statute.

                                             15
Houston [14th Dist.] 2011, pet. ref’d). In Wilkerson, we rejected the appellant’s
argument that Harmelin v. Michigan8 applied with less force after the issuance of
Graham v. Florida.9 347 S.W.3d at 722–73. We determined that Graham did not
control where the appellant was not a juvenile and was not convicted of a non-
homicide crime, but Harmelin still did. Wilkerson, 347 S.W.3d at 723.

       Since we decided Wilkerson, the Supreme Court has extended Graham to
hold that a sentence of mandatory life without parole for those under the age of
eighteen at the time of their crimes violates the Eighth Amendment. Miller v.
Alabama, —U.S.—, 132 S. Ct. 2455, 2460 (2012). Appellant argues that we must
reconsider Harmelin in light of and extend Miller to adult offenders. We disagree.
In Miller, the Court specifically stated that its holding “neither overrules nor
undermines nor conflicts with Harmelin.” 132 S. Ct. at 2470. Further, the Court
explained at length how it is the fact of youth itself that precludes mandatory
sentencing schemes for juveniles: “a sentencer misses too much if he treats every
child as an adult.”       Id. at 2467–68 (“[M]andatory penalties, by their nature,
preclude a sentencer from taking account of an offender’s age and the wealth of
characteristics and circumstances attendant to it.”).

       We conclude that Harmelin and Wilkerson still control, and we overrule
appellant’s fourth and fifth issues.




       8
          In Harmelin v. Michigan, the Supreme Court held that the imposition of a mandatory
sentence of life in prison without parole, without consideration of mitigating factors, did not
constitute cruel and unusual punishment, and refused to extend the individualized sentencing
doctrine to the term-of-years context. 501 U.S. 957, 994–96 (1991).
       9
         In Graham v. Florida, the Supreme Court held that it was unconstitutional for a juvenile
to be sentenced to life without parole for a non-homicide crime. 560 U.S. 48, 130 S. Ct. 2011,
2034 (2010).

                                               16
                           III.      CONCLUSION

      Having sustained appellant’s third issue, we modify the judgment to delete
the specific amount of court costs. Having found no reversible error otherwise, we
affirm the judgment as modified.




                                     /s/    Tracy Christopher
                                            Justice


Panel consists of Justices Brown, Christopher, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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