                                  IN THE
                          TENTH COURT OF APPEALS

                                No. 10-09-00335-CR

SCOTTIE LOUIS FORCEY,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F43132


                          MEMORANDUM OPINION


      After a hearing granting a transfer to adult court, Scottie Forcey was convicted of

the offense of capital murder and sentenced to an automatic life sentence without the

possibility of parole.   See TEX. PEN. CODE ANN. § 12.31(a) (Vernon 2003).        Forcey

complains that the sentence imposed violates constitutional prohibitions against cruel

and unusual punishment, that section 12.31(a) is unconstitutional as applied to Forcey,

that the sentence of life without the possibility of parole is disproportionate

punishment, that the transfer to adult court was void because the summons was
defective, and that the trial court erred by denying an instruction on duress in the jury

charge. Because we find no error, we affirm the judgment of the trial court.

Imprisonment for Life without Parole

        Forcey challenges the constitutionality of the Texas sentencing scheme requiring

that he be automatically sentenced to life without parole even though he was only

sixteen at the time of the offense. Forcey contends that the capital murder sentencing

scheme for a juvenile tried as an adult constitutes “cruel and unusual” punishment in

violation of the Eighth and Fourteenth Amendments to the United States Constitution

and article I, section 13 of the Texas Constitution. U.S. CONST. amends. VIII and XIV;

TEX. CONST. art. I, § 13. He further argues that section 12.31(a) is unconstitutional as

applied to him and is a disproportionate punishment to the offense of capital murder.

        The Eighth Amendment guarantees individuals the right not to be subjected to

excessive or cruel and unusual punishment. U.S. CONST. amend. VIII. A punishment is

“excessive,” and therefore prohibited by the Eighth Amendment, if it is not graduated

and proportioned to the offense. Atkins v. Virginia, 536 U.S. 304, 311, 122 S. Ct. 2242, 153

L. Ed. 2d 335 (2002) (citing Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L.

Ed. 793 (1910)); Roper, 543 U.S. at 560. This prohibition against grossly disproportionate

punishment survives under the Eighth Amendment to the United States Constitution

apart from any consideration of whether the punishment assessed is within the range

established by the Legislature. U.S. CONST. amend. VIII; see Solem v. Helm, 463 U.S. 277,

290, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct.




Forcey v. State                                                                        Page 2
2680, 115 L. Ed. 2d 836 (1991) (Scalia, J., plurality op.); Mullins v. State, 208 S.W.3d 469,

470 (Tex. App.—Texarkana 2006, no pet.).

        In 2005, the United States Supreme Court ruled that execution of a juvenile

would be “cruel and unusual” punishment, and therefore, was unconstitutional. Roper

v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Just two days ago, the

Supreme Court has also determined that a sentence of imprisonment for life without the

possibility of parole for a non-homicide offense violates the same provision of the

Eighth Amendment—cruel and unusual punishment. See Graham v. Florida, No. 08-

7412, 560 U.S. _____ (May 17, 2010). Additionally, the Court of Criminal Appeals has

recently granted a petition for review in order to determine whether the sentence of life

without parole for a juvenile offender pursuant to section 12.31(a) is unconstitutional.

See Meadoux v. State, No. 04-08-00702-CR, 2009 Tex. App. LEXIS 9353 at *35 (Tex. App.—

San Antonio Dec. 9, 2009, pet. granted by, In re Meadoux, 2010 Tex. Crim. App. LEXIS 175

(Tex. Crim. App. Mar. 24, 2010)).

        An excessiveness claim is judged by currently prevailing standards of decency.

Atkins, 536 U.S. at 311-12. Proportionality review under such evolving standards of

decency “should be informed by ‘objective factors to the maximum possible extent.’”

Id. at 312. The Supreme Court has stated that the “clearest and most reliable objective

evidence of contemporary values is the legislation enacted by the country’s

legislatures.” Id. In addition to objective evidence, the Constitution contemplates that

the Supreme Court will bring its own judgment to bear “by asking whether there is

reason to disagree with the judgment reached by the citizenry and its legislators.” Id. at


Forcey v. State                                                                        Page 3
313; see Roper, 543 U.S. at 564-578 (holding that both objective indicia of consensus, as

expressed by enactments of legislatures that have addressed the issue, and the Court's

own independent judgment demonstrate that the death penalty is a disproportionate

punishment for juveniles).

        In reviewing the constitutionality of a sentencing statute as applied to Forcey’s

sentence, we first engage in an initial threshold comparison of the gravity of the offense

with the severity of the sentence to determine whether it leads to an inference of gross

disproportionality. Harmelin, 501 U.S. at 1005; see McGruder v. Puckett, 954 F.2d 313, 316

(5th Cir. 1992); Mullins, 208 S.W.3d at 470. Only then do we compare the sentence at

issue to the sentences imposed for similar crimes in the same jurisdiction and sentences

imposed for commission of the same crime in other jurisdictions. Harmelin, 501 U.S. at

1005; Solem, 463 U.S. at 292; McGruder, 954 F.2d at 316; Mullins v. State, 208 S.W.3d 469,

470 (Tex. App.—Texarkana 2006, no pet.); Dunn v. State, 997 S.W.2d 885, 892 (Tex.

App.—Waco 1999, pet. ref’d).

        Forcey contends that the same reasoning used in Roper to find execution of a

juvenile “cruel and unusual” should apply to a mandatory sentence of life without

parole for a juvenile. See Roper, 543 U.S. at 569-70 (citing three reasons for declining to

classify juveniles as the “worst offenders” worthy of the death penalty: (1) lack of

maturity and an underdeveloped sense of responsibility; (2) susceptibility to outside

pressures; and (3) the less than fully-formed nature of their characters). In Roper, the

Supreme Court did not address the issue of the constitutionality of a life without parole

sentence for a juvenile. Id. at 560; but see Harmelin v. Michigan, 501 U.S. 957, 995-96, 111


Forcey v. State                                                                       Page 4
S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (sentencing scheme that calls for an automatic life

without parole sentence, rather than an individualized punishment determination, is

not “cruel and unusual”).

        It is within the legislature’s power to determine the ranges of punishment for

criminal offenses.   See Ex parte Moser, 602 S.W.2d 530, 533 (Tex. Crim. App. 1980)

(legislature may alter or abolish the procedure whereby the jury assesses a defendant's

punishment within the bounds of due process and other constitutional strictures). The

Texas sentencing scheme for capital murder in effect at the time of the offense provides

that upon conviction an adult offender may receive one of two possible punishments:

death or life imprisonment without parole. TEX. PEN. CODE ANN. § 12.31(a); TEX. CODE

CRIM. PROC. ANN. art. 37.071 §§ 1, 2 (Vernon Supp. 2009). Because a juvenile who has

been certified to stand trial as an adult for capital murder may not be sentenced to

death, the juvenile must be sentenced to the lesser punishment, life imprisonment

without parole. TEX. PEN. CODE ANN. § 8.07(c) (Vernon 2003).

        At least two Texas courts of appeal have rejected a juvenile’s argument that a

mandatory life sentence upon conviction for capital murder is unconstitutional based

on the Supreme Court’s reasoning in Roper; the Supreme Court has denied certiorari in

one of the cases. See Willis v. State, No. 06-04-0172-CR, 2005 Tex. App. LEXIS 7113 (Tex.

App.—Texarkana Aug. 31, 2005, no pet.) (mem. op., not designated for publication);

Thomas v. State, No. 14-06-00066-CR, 2007 Tex. App. LEXIS 6212 (Tex. App.—Houston

[14th Dist.] Aug. 7, 2007, pet. ref'd), cert. denied, 129 S. Ct. 51, 172 L. Ed. 2d 54 (2008)

(mem. op., not designated for publication).


Forcey v. State                                                                       Page 5
        The Texas legislature recently amended section 12.31 of the Penal Code to restore

parole eligibility for juvenile capital murder offenders who are certified as adults for

trial; but the legislature chose not to make the law retroactive, specifically restricting the

amendment to juvenile offenders who commit capital murder on or after September 1,

2009.    See TEX. PEN. CODE ANN. § 12.31(a) (Vernon Supp. 2009) (providing for a

mandatory life sentence, with the option of parole, for a juvenile whose case is

transferred under section 54.02 of the Family Code). Given that the legislature chose

not to apply the parole eligibility amendment retroactively to juveniles who have

already been sentenced for a capital murder, we do not believe that it would be

appropriate for this court to “judicially amend” the statute. See TEX. PEN. CODE ANN. §

12.31(a)(1).

        We conclude that, until the Supreme Court or the Court of Criminal Appeals

determines otherwise, the Texas sentencing scheme mandating life without parole for a

juvenile convicted of capital murder does not constitute “cruel and unusual”

punishment in violation of the federal and state constitutions on its face. Harmelin, 501

U.S. at 995-996.

        As applied to Forcey, his sentence was not grossly disproportionate to the

gravity of the offense of capital murder.          Forcey was convicted of shooting a

convenience store clerk in the head multiple times during the commission of a robbery.

Even if the sentence was sufficient to create an inference of gross disproportionality,

there is no evidence in the record that allows us to compare Forcey’s sentence to the

sentences imposed on other persons in Texas or on persons in other jurisdictions who


Forcey v. State                                                                         Page 6
committed a similar offense. See Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.—

Texarkana 1999, no pet.) (“there is no evidence in the record reflecting sentences

imposed for similar offenses on criminals in Texas or other jurisdictions by which to

make a comparison”). Without such evidence, the record before us does not support

Forcey’s claims. Jackson, 989 S.W.2d at 846. We overrule issues one, two, and three.

Defective Summons

          Forcey complains that the summons served on him was invalid under section

54.02(b) of the Family Code because it did not state that the proposed transfer was to a

“criminal court.” See TEX. FAM. CODE ANN. § 54.02(b) (Vernon 2009).

          Section 54.02(b) states:

          The petition and notice requirements of Sections 53.04, 53.05, 53.06, and
          53.07 of this code must be satisfied, and the summons must state that the
          hearing is for the purpose of considering discretionary transfer to criminal
          court.

See Id.

          The Court of Criminal Appeals has held that the summons need not expressly

contain      the   words    “to      criminal   court”   to   satisfy   Section   54.02(b)   if   the

summons expressly incorporates the attached petition by reference and the petition

contains references to criminal proceedings in criminal court. Hardesty v. State, 659

S.W.2d 823 (Tex. Crim. App. 1983). The summons in this case expressly referred to the

attached petition and the petition contains references to criminal proceedings in

criminal court. See In re Franklin, 699 S.W.2d 689, 690 (Tex. App.—Texarkana 1985, no

pet.). We overrule issue four.

Denial of Instruction
Forcey v. State                                                                               Page 7
         Forcey complains that the trial court erred by denying him an instruction on the

affirmative defense of duress in the charge to the jury. However, Forcey did not testify

or otherwise admit to committing the offense. Forcey may only raise duress as a

justification if he admitted that he engaged in the proscribed conduct as alleged in the

indictment. See TEX. PEN. CODE ANN. §§ 2.04(c), 8.05(a) (Vernon 2003); Anguish v. State,

991 S.W.2d 883, 885 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); Bernal v. State, 647

S.W.2d 699, 706 (Tex. App.—San Antonio 1982, no pet.); cf. Young v. State, 991 S.W.2d

835, 839 (Tex. Crim. App. 1999) (counsel not ineffective in failing to request necessity

instruction when defendant did not admit committing the offense). Therefore, the trial

court did not err by denying his requested instruction on duress. We overrule issue

five.

Conclusion

         The sentence imposed of life without the possibility of parole is not

unconstitutional as it relates to Forcey, nor is it disproportionate to the offense of capital

murder. The summons that was served upon Forcey was not defective. Forcey was not

entitled to an instruction on the defense of duress. We affirm the judgment of the trial

court.

                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 19, 2010
Do not publish
[CRPM]
Forcey v. State                                                                         Page 8
