Affirmed and Memorandum Opinion filed April 16, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00015-CR

                     HERBERT RAY WILSON, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1133069

                 MEMORANDUM                       OPINION


      Appellant Herbert Ray Wilson was convicted of capital murder and
sentenced to life in prison with the possibility of parole. He challenges his sentence
on the ground that the denial of an individualized sentencing hearing violates the
United States and Texas Constitutions. We affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND

       Appellant was convicted of capital murder and sentenced to life in prison
without the possibility of parole. On original submission, appellant argued that (1)
his confession was involuntary, and (2) a mandatory sentence of life without the
possibility of parole violated the Eighth Amendment because he was a juvenile at
the time of the offense. This court affirmed appellant’s conviction and sentence.
Wilson v. State, 348 S.W.3d 32, 44 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d). On petition for writ of certiorari, the United States Supreme Court vacated
the judgment and remanded the case for further consideration in light of Miller v.
Alabama, 567 U.S. —, 132 S. Ct. 2455 (2012). Wilson v. Texas, — U.S. —, 133 S.
Ct. 108, 108 (2012). In view of Miller, this court remanded the case to the trial
court for a new punishment hearing. Wilson v. State, No. 14-09-01040-CR, 2012
WL 6484718, at *2 (Tex. App.—Houston [14th Dist.] Dec. 13, 2012, no pet.) (not
designated for publication). While the case was on remand, the legislature
amended Texas Penal Code section 12.31(a) to read as follows:

       (a) An individual adjudged guilty of a capital felony in a case in
       which the state seeks the death penalty shall be punished by
       imprisonment in the Texas Department of Criminal Justice for life
       without parole or by death. An individual adjudged guilty of a capital
       felony in a case in which the state does not seek the death penalty
       shall be punished by imprisonment in the Texas Department of
       Criminal Justice for:
       (1) life, if the individual committed the offense when younger than
       18 years of age; or
       (2) life without parole, if the individual committed the offense
       when 18 years of age or older.

Tex. Penal Code Ann. § 12.31(a) (West Supp. 2014).1 On December 12, 2013, the

       1
         The 2013 Session Laws amending this section in response to Miller v. Alabama include
a savings clause making it applicable to cases pending and on appeal when the provision went
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trial court sentenced appellant to confinement in the Institutional Division of the
Texas Department of Criminal Justice for life with the possibility of parole in 40
years. See Tex. Gov’t Code Ann. § 508.145(b) (West Supp. 2014). Appellant
timely appealed.

                                          ANALYSIS

       In four issues, appellant contends that Texas Penal Code section 12.31(a)(1)
violates both the United States and Texas Constitutions because it does not provide
for individualized sentencing hearings. We consider each issue in turn.

A.     The denial of an individualized sentencing hearing did not violate the
       Eighth Amendment.
       In his first issue, appellant claims that under the Eighth Amendment, a
juvenile offender is entitled to an individualized sentencing hearing before being
assessed a mandatory sentence of life imprisonment with the possibility of parole.
Under Miller, a sentencing scheme for juvenile offenders that mandates life in
prison without the possibility of parole violates the Eighth Amendment. 132 S.Ct.
at 2469. Noting that Miller did not forbid mandatory sentencing schemes per se,
the Court of Criminal Appeals refused to extend the holding in Miller to situations
identical to the one presented here: a mandatory sentence for a juvenile offender of
life in prison with the possibility of parole. Lewis v. State, 428 S.W.3d 860, 863
(Tex. Crim. App. 2014); see Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim.
App. 2014) (per curiam); Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). The court held that juvenile offenders
sentenced to life imprisonment with the possibility of parole are not entitled to


into effect on July 22, 2013. Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3, 2013 Tex. Gen.
Laws 5020, 5020–21; see Lewis v. State, 428 S.W.3d 860, 863 n.6 (Tex. Crim. App. 2014).



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individualized sentencing hearings. Lewis, 428 S.W.3d at 864. We are bound in
criminal cases to follow decisions of the Court of Criminal Appeals. Lewis, 448
S.W.3d at 146. Appellant’s first issue is overruled

B.    The denial of an individualized sentencing hearing did not violate the
      Due Process Clause.
      In his second issue, appellant claims that under the Due Process Clause, a
juvenile sentenced to life with the possibility of parole is entitled to an
individualized sentencing hearing. A number of Texas Courts of Appeals,
including this one, have determined mandatory sentencing statutes generally do not
violate due process. Id. at 147; see e.g., Laird v. State, 933 S.W.2d 707, 715 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d) (mandatory life sentence for capital
murder did not violate due process); Cardona v. State, 768 S.W.2d 823, 827 (Tex.
App.—Houston [14th Dist.] 1989, no pet.) (mandatory sentence for delivery of
cocaine did not violate due process). Because appellant offers no reason for
deviating from this line of cases, we overrule his second issue.

C.    The denial of an individualized sentencing hearing did not violate the
      “cruel or unusual punishment” prohibition of article I section 13 of the
      Texas Constitution.
      In his third issue, appellant claims that under the “cruel or unusual
punishment” prohibition of article I section 13 of the Texas Constitution, a juvenile
offender is entitled to an individualized sentencing hearing before being assessed a
mandatory sentence of life imprisonment with the possibility of parole. See Tex.
Const. art. I, § 13. Appellant asserts that rights under article I section 13 of the
Texas Constitution should be interpreted more broadly than rights under the Eighth
Amendment. In support of this proposition, appellant notes that article I section 13
prohibits “cruel or unusual punishment” while the Eighth Amendment prohibits
“cruel and unusual punishment.” The Court of Criminal Appeals has rejected the

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distinction appellant proposes. See Cantu v. State, 939 S.W.2d 627, 639 (Tex.
Crim. App. 1997). Therefore, an analysis of this issue under the Texas Constitution
is identical to an analysis under the United States Constitution. As we have
previously determined that appellant is not entitled to an individualized sentencing
hearing under the Eight Amendment, we overrule his third issue.

D.    The denial of an individualized sentencing hearing did not violate article
      I section 19’s “due course of law” guarantee.
      In his fourth issue, appellant claims that under Texas Constitution article I
section 19’s “due course of law” guarantee, a juvenile sentenced to life with the
possibility of parole is entitled to an individualized sentencing hearing. We have
already concluded that the denial of an individualized hearing did not violate
appellant’s due process rights under the Fourteenth Amendment. Texas courts
consistently have found no distinction in this context between the rights afforded
by the “due course of law” clause of article I section 19 and those afforded by the
Due Process Clause of the Fourteenth Amendment. See Lewis, 448 S.W.3d at 147.
Appellant offers no discernable reason for finding a distinction in this case.
Accordingly, we overrule this issue.

                                  CONCLUSION

      Having overruled each of appellant’s issues on appeal, we affirm the trial
court’s judgment.


                                       /s/       Marc W. Brown
                                                 Justice


Panel consists of Justices Jamison, Busby, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).


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