Opinion issued December 19, 2013




                                     In The
                              Court of Appeals
                                    For The
                         First District of Texas
                           ————————————
                              NO. 01-12-00522-CR
                           ———————————

                    DONNA RENEE THOMAS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 263rd District Court
                            Harris County, Texas
                     Trial Court Case No. 134460001010


                         MEMORANDUM OPINION
      A jury convicted appellant Donna Renee Thomas of capital murder and

found that she used a deadly weapon in the commission of the crime. TEX. PENAL

CODE ANN. § 19.03 (West 2012). The trial court sentenced her to life in prison

without parole. See id. § 12.31. In five issues, Thomas challenges the sufficiency
of the evidence, the charge to the jury, and the constitutionality of Penal Code

section 12.31, which required her mandatory life sentence without parole. We

affirm.

                                  Background

      In August 2008, William Jones, the complainant, was shot and killed at the

home of Marcus Smith. Appellant Donna Thomas was not physically present in the

house at the time of the shooting, but she was waiting in a car outside.

Accordingly, at trial the State argued that Thomas was a party to the charged

offense of capital murder.

      Thomas’s involvement in the shooting arose from her acquaintance with

Reginald Price, a visitor to Houston. He asked Thomas if she knew where to

purchase Xanax. Thomas called her friend, Desiree Jarmon, asking if she could

help to arrange a purchase of 1,500 Xanax pills. Jarmon indicated that she knew

someone named “Hop” who could help, and they were put in contact that day.

Thomas testified that Price gave her money for the Xanax and waited in the car

while she met with Hop at a convenience store. Thomas further testified that Hop

disappeared with the money and never returned with the pills.

      Following the meeting, Thomas called Jarmon to tell her that Hop had stolen

Price’s money. Jarmon agreed to come to Thomas’s house. Jarmon repeatedly

called Hop but was unable to contact him. Jarmon arrived at the house to find

                                        2
Thomas with Price, his cousin Jacoby Hall, and Thomas’s sister, Danyell. Price

put a revolver in Jarmon’s face and demanded that she show him where Hop spent

his time. Thomas did not protest Price’s conduct, but instead began striking

Jarmon repeatedly in the back of the head with an unknown object. This attack

commenced without any provocation from the others, leaving Jarmon bruised and

bloodied. Afterward, Thomas brought Jarmon a new shirt to replace her bloodied

one. Jarmon felt that Thomas was acting on her own and was not taking orders

from Price.

      Jarmon drove the entire group to several locations looking for Hop. At each

stop, the men got out, brandishing at least one gun. Jarmon observed them kick

doors open. This search continued the following day, when the same group and

Jarmon’s brother met up with a woman named Kindra Trotter who claimed to

know Hop. After meeting Trotter, the group let the Jarmons leave. The others,

including Thomas, returned to Trotter’s home that night with a gun and forced

Trotter and her boyfriend into the car.

      Price believed that Hop frequented the home of Marcus Smith, and Trotter

guided them there. At Smith’s home, Hall and Price got out of the car; Danyell

drove Thomas and the others to a nearby gas station. Thomas and Danyell dropped

Trotter’s boyfriend off at his home before returning to Smith’s home with Trotter.




                                          3
Trotter testified that she tried and begged to leave but that Thomas and Danyell

would not release her from the car.

       Hall and Price forced their way into the home and forced Smith onto the

floor. They asked where to find Hop. One of the two carried a revolver, and the

other carried a semiautomatic handgun. The men displayed the guns the entire

time that they interacted with Smith, who did not feel free to leave. The men

ordered Smith to call his friend, William “Boo” Jones, the complainant, who they

believed had been with Hop that day. When Jones knocked on the door, he was

greeted at gunpoint and was forced into the house. At one point, Price became so

frustrated with Jones that he fired a shot with the semiautomatic pistol to scare

him.

       After Jones had been forced into the house, Charles Patterson knocked on

the door, unaware of what had taken place. Patterson had come to visit Smith.

Price and Hall had him come in and drew their guns, making him feel unable to

leave. At one point, Price walked by Jones, who jumped up and grabbed him.

Jones nearly managed to wrestle the gun away from Price, but Hall ran over to help

and recovered the gun. Hall pointed a pistol at Patterson. Jones slipped and fell

onto the floor, and Price began shooting him. Patterson observed at least one

bullet strike Jones, and then Hall shot him as well. After the shooting stopped,




                                        4
Jones spoke but was unable to get up. He was turning purple and bleeding

profusely.

        Meanwhile, Thomas, Danyell, and Trotter had parked outside of Smith’s

home.     The group heard approximately three gunshots.        Trotter testified that

Thomas and Danyell did not seem surprised or bothered by the sound of the

gunshots. Thomas then entered the house. Trotter observed Thomas wipe off the

doorknob with her wig before entering. Patterson heard the intruders discuss

taking him somewhere, along with Jones and Smith. After the three men refused

to go, Thomas responded, “Just kill all of ’em.” Patterson believed that Thomas

was giving orders.

        Trotter testified that Thomas returned to the car less than ten minutes later

with Price and Hall. Price had phones and identification cards that he claimed to

have taken from the people in the house. Trotter testified that when they dropped

her off, Price told her, “Don’t say nothing,” or else the same would happen to her.

Trotter testified that it was her impression that Thomas was acting of her own

accord and was never threatened or ordered to do anything by Hall or Price.

        Thomas was convicted of capital murder. See TEX. PENAL CODE § 19.03.

The jury was instructed on two theories of liability for the conduct of others: an

aiding and abetting theory and a conspiracy theory. See id. § 7.02 (West 2011).




                                          5
Because the State did not pursue the death penalty, the trial judge was required to

assess the penalty at imprisonment for life without parole. See id. § 12.31(a).

                                        Analysis

I.      Jury charge

        In her first issue, Thomas argues that the instruction provided to the jury

regarding the law of parties erroneously lowered the State’s burden of proof with

respect to the mens rea required for the offense, and thereby caused her egregious

harm.

        The trial court is required to give the jury “a written charge distinctly setting

forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007); see, e.g., Celis v. State, No. PD-1584-11, 2013 WL 2373114, at *3

(Tex. Crim. App. May 15, 2013). “Appellate review of claims of jury-charge error

involves a determination of whether the charge is erroneous and, if it is, a harm

analysis.” Celis, 2013 WL 2373114, at *3. To determine whether there was error

in the charge, we consider it “as a whole instead of a series of isolated and

unrelated statements.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App.

1995).

        The first sentence of the charge informed the jury: “The defendant, Donna

Renee Thomas, stands charged by indictment with the offense of capital murder,

alleged to have been committed on or about the 16th day of August, 2008, in

                                            6
Harris County, Texas.”       The charge defined capital murder as an offense

committed if a person “intentionally commits murder, as hereinbefore defined, in

the course of committing or attempting to commit the offense of burglary of a

building or the offense of kidnapping.”

      The abstract instruction concerning the law of parties, which Thomas does

not challenge on appeal, instructed the jury that:

             Before you would be warranted in finding the defendant guilty
      of capital murder, you must find from the evidence beyond a
      reasonable doubt not only that on the occasion in question the
      defendant was in the course of committing or attempting to commit
      the felony offense of burglary of a building owned by Marcus Smith,
      as alleged in this charge, but also that the defendant specifically
      intended to cause·the death of William Jones, by shooting William
      Jones, with a deadly weapon, namely, a firearm; [¶]

      or you must find from the evidence beyond a reasonable doubt that the
      defendant, Donna Renee Thomas, with the intent to promote or assist
      in the commission of the offense of burglary of a building, if any,
      solicited, encouraged, directed, aided, or attempted to aid Reginald
      Price and/or Jacoby Hall and/or Danyell Thomas in shooting William
      Jones, if she did, with the intention of thereby killing William Jones;
      [¶]

      or you must find from the evidence beyond a reasonable doubt that on
      the occasion in question the defendant, Donna Renee Thomas, entered
      into an agreement with Reginald Price and/or Jacoby Hall and/or
      Danyell Thomas to commit the felony offense of burglary of a
      building owned by Marcus Smith, as alleged in this charge, and
      pursuant to that agreement they did carry out their conspiracy, and
      while in the course of committing said conspiracy, Reginald Price
      and/or Jacoby Hall and/or Danyell Thomas intentionally caused the
      death of William Jones by shooting William Jones with a deadly
      weapon, namely, a firearm, and the murder of William Jones was
      committed in furtherance of the conspiracy and was an offense that
                                          7
      should have been anticipated by the defendant as a result of carrying
      out the conspiracy . . . .

(Emphasis and internal paragraph breaks supplied.)

      On appeal Thomas challenges the application paragraphs of the jury

instruction, which directed the jury to convict Thomas for capital murder in the

following circumstances:

      If you find from the evidence beyond a reasonable doubt that on or
      about the 16th day of August, 2008, in Harris County, Texas,
      Reginald Price and/or Jacoby Hall and/or Danyell Thomas, did then
      and there unlawfully, while in the course of committing or attempting
      to commit the burglary of a building owned by Marcus Smith,
      intentionally cause the death of William Jones by shooting William
      Jones with a deadly weapon, namely, a firearm, and that the
      defendant, Donna Renee Thomas with the intent to promote or assist
      the commission of the offense, if any, solicited, encouraged, directed,
      aided or attempted to aid Reginald Price and/or Jacoby Hall and/or
      Danyell Thomas to commit the offense, if she did; or . . . .

(Emphasis supplied.) Several iterations of this paragraph followed in which the

crime of kidnapping was substituted for that of burglary and various alleged

kidnapping victims were introduced. Thomas contends that the meaning of “the

offense” in these paragraphs is unclear and that these paragraphs authorized the

jury to convict her of capital murder if it found that, with the intent to promote or

assist in the commission of burglary or kidnapping, Thomas solicited, encouraged,

directed, aided, or attempted to aid Price, Hall, or Danyell Thomas to commit that

“offense.” Thomas argues that this jury instruction was erroneous and caused her

egregious harm.
                                         8
       Thomas thus contends that the challenged application paragraphs could be

read to authorize the jury to convict her of capital murder if it found that she

solicited, encouraged, directed, aided, or attempted to aid in the commission of a

kidnapping or burglary, with the intent merely to promote or assist a kidnapping or

burglary, and without requiring the intent to facilitate murder.        This court

addressed a similar challenge to a nearly identical jury instruction in Holford v.

State, 177 S.W.3d 454 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Holford

was a capital murder case that involved application paragraphs concerning the law

of parties. 177 S.W.3d at 460. As in this case, the appellant in Holford contended

the application paragraphs were ambiguous on the theory that their wording—

references to “intent to promote or assist the commission of the offense”—

permitted a capital murder conviction if the appellant merely intended to aid in the

commission of a lesser felony, as opposed to the required intent to aid in murder.

Id. The charge in this case described the charged offense of capital murder as

necessarily occurring “in the course of committing or attempting to commit the

offense of burglary of a building or the offense of kidnapping,” and likewise the

charge in Holford described capital murder for that case as “necessarily occurring

‘while in the course of committing or attempting to commit the robbery.’” Id. at

461.




                                         9
      Holford concluded that “[r]ead logically, the prepositional phrase ‘with the

intent to promote or assist the commission of the offense’ refers to [the

complainant’s] murder, that occurred ‘while in the course of committing or

attempting to commit the robbery,’” and that “[l]ikewise, the clause ‘solicited,

encouraged, directed, aided or attempted to aid [another] to commit the offense’

refers to [the complainant’s] murder.” Id. The same logic applies to this case. We

conclude there was no ambiguity in the charge, and therefore there was no error.

See id. at 465; see also Reyes v. State, 741 S.W.2d 414, 423–24 (Tex. Crim. App.

1987) (rejecting challenge to jury charge when abstract section included an

application of law to the parties in the case); Green v. State, 233 S.W.3d 72, 80

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (differentiating Reyes from an

instruction found egregiously harmful because the charge in Reyes included an

application of law to the named parties in the abstract section).

      Moreover, even if the charge were erroneous, the information presented to

the jury in this case, viewed in its entirety, establishes there was no egregious error.

In the absence of an objection at trial, we will reverse a judgment of conviction for

charge error “only if the error was so egregiously harmful that ‘he has not had a

fair and impartial trial.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984). “Any harm that is inflicted by an erroneous charge must be assessed in

light of (1) the entire jury charge, (2) the state of the evidence, (3) the argument of

                                          10
counsel, and (4) any other relevant information revealed by the record of the trial

as a whole.” Smith v. State, 340 S.W.3d 41, 51 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (citing Almanza, 686 S.W.2d at 171).           Jury charge error is

egregiously harmful if “it affects the very basis of the case, deprives the defendant

of a valuable right, or vitally affects a defensive theory.” Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007). We engage in this assessment of the

record as a whole to determine the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174. Egregious harm is a difficult standard to satisfy and

must be determined through a case-by-case analysis. Smith, 340 S.W.3d at 51.

      While we have found no error in the charge as given, see Holford, 177

S.W.3d at 465, even considering that charge as a whole and assuming error in the

challenged paragraphs, at worst that error was an ambiguity, as opposed to an

affirmatively incorrect or misleading instruction. Cf. Green, 233 S.W.3d at 82–84

(Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (refusing to forgive instructions

that “affirmatively misled the jury”).    Moreover, a reading of the challenged

language in the context of the entire charge amply demonstrates that the reference

to “the offense” is a reference to the charged offense of capital murder, and not any

other uncharged “offenses” such as burglary or kidnapping. The jury charge as a

whole communicated that the jury was required to find that Thomas had a specific




                                         11
intent to kill Jones in order to convict her of capital murder under an aiding and

abetting or solicitation theory.

      Thus, the definite and correct statement of law in the abstract section

precluded any egregious harm from resulting from the later application paragraphs

that lacked the same degree of clarity. See Holford, 177 S.W.3d at 461. In sum,

the jury was provided with sufficient information in the paragraphs prior to the

application portion of the charge to understand what “the offense” was. See Smith,

340 S.W.3d at 51 (holding that although the application portion of the jury

instructions did not specifically require that the two acts of sexual abuse occur

during a period at least 30 days in duration, the general instructions, which

preceded the application paragraph, clearly established that requirement).

      The evidence at trial was primarily concerned with the offense of murder

and not kidnapping or burglary. This further substantiates the notion that despite

any ambiguity that may be read into isolated references to “the offense” in the

charge, the jury was on alert that “the offense” at issue was capital murder and not

the underlying felony of kidnapping or burglary.

      With respect to the arguments of counsel, we first note that in voir dire the

State correctly identified the specific intent to kill as a necessary element of capital

murder, albeit not in the precise context of the law of parties. See Smith, 340

S.W.3d at 52–53 (noting that although the application portion of the jury

                                          12
instructions did not specifically require that the two acts of sexual abuse occur

during a period at least 30 days in duration, the State explained the required

durational element while addressing the potential jurors during voir dire). During

the State’s closing argument, the prosecutor again correctly acknowledged the need

for specific intent in order to find Thomas guilty of capital murder, unless

convicted under a conspiracy theory.          See Smith 340 S.W.3d at at 51–52

(explaining that although the application portion of the jury instructions did not

specifically require that the two acts of sexual abuse occur during a period at least

30 days in duration, the State clearly explained the requisite durational element of

the offense in its closing argument); Holford, 177 S.W.3d at 461 (pointing out that

both prosecutor and defense attorney argued to jury that intent to kill victim was

necessary for capital murder conviction).

      On appeal Thomas places great weight on a misstatement of the law during

the course of the State’s discussion of the language of the charge, in which the

prosecutor stated:

      And then immediately into it there’s an “or” and then it goes into the
      definition of parties for burglary of a building. That would be Jacoby
      Hall or Reginald Price or Danyell Thomas, I guess, intended to kill
      William Jones and that Donna Thomas encouraged, aided, directed or
      attempted to aid them with the intent or promote the assistance of
      killing or burglary. And that is, one of the other people did it, they
      wanted to kill him, she wanted him dead and they were all doing it in
      the course of committing a burglary. That’s parties and it’s right here
      in there.

                                         13
(Emphasis supplied.) The prosecutor thus referred to intent to commit a killing “or

burglary.” However, to the extent this explanation misstated the law, in her next

sentence the prosecutor correctly explained that this is a matter of “she [Thomas]

want[ing] him dead.” The State later repeated that the proper emphasis remained

on intent to kill: “Capital murder requires that I meant to kill you and I killed you.

I really wanted you dead while I was committing another felony.” The defense

further reinforced the correct explanation of the charge in its closing statement by

also explaining that capital murder is about specific intent to kill.

      Thus, even assuming that the application instruction erroneously failed to

expressly define “the offense,” we nevertheless conclude that Thomas was not

egregiously harmed by any such error. The jury instructions examined in their

entirety reasonably informed the jury that it was required to find that Thomas had

specific intent to kill Jones or to aid and abet in killing Jones in order to convict her

of capital murder. The evidence indicated that “the offense” in question was a

criminal homicide and not the act of kidnapping or burglary. Moreover, the State’s

voir dire and closing argument informed the jury of the need for specific intent in

order to find Thomas guilty of capital murder unless convicted under a conspiracy

theory. We thus hold that the jury instruction did not egregiously harm appellant.

See Bazanes v. State, 310 S.W.3d 32, 37 (Tex. App.—Fort Worth 2010, pet. ref’d)

(erroneous application paragraph that omits essential element of offense did not

                                           14
constitute egregious harm when abstract portion set forth essential element,

sufficient evidence existed to show essential element, and jury was not misled by

arguments of counsel but was repeatedly and correctly advised that State had to

prove essential element); Holford, 177 S.W.3d at 461 (holding that capital murder

instruction substantially identical in form was not ambiguous and that, assuming it

were ambiguous, any error did not cause egregious harm in light of argument of

counsel and pellucid application of law in abstract section). Accordingly, we

overrule Thomas’s first issue.

II.   Sufficiency of the evidence

      Thomas raises two challenges to the legal sufficiency of the evidence to

support her conviction. When evaluating the legal sufficiency of the evidence, we

view the evidence in the light most favorable to the verdict and 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).     The fact-finder is the exclusive judge of the witnesses’

credibility and the weight to be given to their testimony. Jones v. State, 944

S.W.2d 642, 647–48 (Tex. Crim. App. 1996).

      A.    Intent to kill

      In her second point of error, Thomas contests the legal sufficiency of the

evidence to prove that she intentionally caused Jones’s death.        A person is

                                        15
criminally responsible as a party if “acting with intent to promote or assist in the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense.” TEX. PENAL CODE § 7.02(a)(2). Thomas

contends that the evidence is insufficient to establish that she, with the intent to

promote or assist in the murder of William Jones, encouraged or aided or

attempted to aid Price or Hall in committing the murder.

      The jury could have found Thomas guilty of capital murder by concluding

that either: (1) under Penal Code section 7.02(a), acting with intent to promote or

assist the commission of the murder, Thomas solicited, encouraged, directed,

aided, or attempted to aid another person to commit the murder; or (2) under

section 7.02(b), the murder was committed in an attempt to carry out a conspiracy

to commit a felony, and, though Thomas had no intent to commit the murder, it

was committed in furtherance of the unlawful purpose and should have been

anticipated as a result of the execution of the conspiracy. This court has previously

held that a defendant in a capital murder case may be convicted solely on a

conspiracy theory of culpability contained in the jury charge. Love v. State, 199

S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Fuller v.

State, 827 S.W.2d 919, 932–33 (Tex. Crim. App. 1992)). “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 that is required for an affirmative

                                         16
answer to the anti-parties issue.” Valle v. State, 109 S.W.3d 500, 503–04 (Tex.

Crim. App. 2003).

      Although Thomas contends that she could not have anticipated the murder

would occur, this court considered a similar claim in Love v. State, 199 S.W.3d 447

(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In Love, the court found the

evidence sufficient to satisfy section 7.02(b), specifically, that the defendant should

have anticipated the possibility of a murder occurring during the course of a

robbery in light of the fact that the defendant was aware that his co-conspirators

had guns. 199 S.W.3d at 453–54; see also Green v. State, 682 S.W.2d 271, 285–

86 (Tex. Crim. App. 1984) (holding that murder should have been reasonably

anticipated as a possible result of robbery when appellant admitted to entering a

house armed with a gun); Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App.

[Panel Op.] 1979) (holding that direct evidence of appellant’s participation in

aggravated robbery in concert with other individuals while brandishing a deadly

weapon would permit the jury to infer that murder should have been reasonably

anticipated as possible consequence).      The evidence in this case would have

supported a rational jury’s determination that Thomas was well aware that Price

and the other male participants in the incident had at least one gun brandished each

time they forced entry into a home or took someone in the car with them.

“Evidence that a defendant knew his co-conspirators might use guns in the course

                                          17
of the robbery can be sufficient to demonstrate that the defendant should have

anticipated the possibility of murder occurring during the course of the robbery.”

Love, 199 S.W.3d at 453. Thus, the evidence is sufficient to demonstrate that

Thomas should have anticipated that a murder might occur in the course of

carrying out the conspiracy.

      The court charged the jury under section 7.02(b), which does not require a

specific intent to commit murder, but only that the defendant should have

anticipated murder occurring in the course of carrying out a felony. Accordingly,

we conclude that the evidence is legally sufficient to support Thomas’s conviction

under section 7.02(b). Because the jury returned a general verdict, and because the

evidence is legally sufficient to support a finding of guilt under section 7.02(b), we

will not depart from the jury’s verdict. Love, 199 S.W.3d at 455 (citing Rabbani v.

State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).

      B.     Predicate offenses

      In her third point of error, Thomas argues that no rational trier of fact could

have found the essential elements of the underlying felony or felonies of this crime

beyond a reasonable doubt.

      Proof of only one of the two underlying felonies is necessary to support

Thomas’s conviction. See Brooks v. State, 990 S.W.2d 278, 283 (Tex. Crim. App.

1999) (when a jury returns general guilty verdict on indictment charging

                                         18
alternative theories of committing same offense, the verdict stands if evidence

supports any of theories charged). Thus, the evidence need only be sufficient to

prove that the murder was committed in the course of committing or attempting to

commit one of the two underlying offenses—either kidnapping or burglary.

Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). “Therefore, if the

evidence in this case establishes burglary, we need not examine whether there was

sufficient evidence to show kidnapping.” Matamoros v. State, 901 S.W.2d 470,

474 (Tex. Crim. App. 1995).

      With respect to the predicate offense of burglary, the jury was instructed:

      A person commits the offense of burglary of a building if, without the
      effective consent of the owner, the person:
      (1) Enters a building or any portion of a building not then open to
             the public, with the intent to commit a felony, theft, or an
             assault; or
      (2) Enters a building and commits or attempts to commit a felony,
             theft, or an assault.

The evidence demonstrated that Price and Hall forced their way into Smith’s

house, among other residences, wielding guns. The evidence further demonstrates

that Price and Hall held Patterson, Smith, and Jones at gunpoint and that Price and

Hall eventually shot and killed Jones in Smith’s home. This evidence is sufficient

for the jury to find that Price and Hall committed a burglary. See Matamoros, 901

S.W.2d at 474 (where evidence showed appellant entered the victim’s home

without permission and subsequently murdered the victim, the court concluded the

                                         19
intent necessary to establish the felony of burglary was demonstrated by the

ultimate murder of the victim).

       There was also evidence at trial demonstrating that Thomas acted in concert

with Price and Hall. Trotter witnessed Thomas wiping the doorknob to Smith’s

house with her wig, as if to remove evidence that Price and Hall had been there.

Patterson observed Thomas telling Hall and Price to “kill ’em all,” referring to the

two unharmed captives after Jones had already been shot.        Moreover, additional

evidence was provided by Trotter, Jarmon, and Patterson that Thomas willingly

participated in the events and appeared not to be forced to participate in this series

of events by Price and Hall. The jury was provided with sufficient evidence to

show that Thomas aided or encouraged Price and Hall in the commission of a

burglary. Accordingly, we overrule Thomas’s third point of error.

III.   Constitutionality of sentence

       The Eighth Amendment of the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.”        U.S. CONST. amend. VIII. The Eighth

Amendment has been incorporated to apply to the States through the operation of

the Due Process Clause of the Fourteenth Amendment. Louisiana ex rel. Francis

v. Resweber, 329 U.S. 459, 463, 67 S. Ct. 374, 376 (1947); see also Robinson v.

California, 370 U.S. 660, 675, 82 S. Ct. 1417, 1425 (1962). The constitutional

                                         20
prohibition of “cruel and unusual punishment” is measured by the “‘evolving

standards of decency that mark the progress of a maturing society.’” Roper v.

Simmons, 543 U.S. 551, 561, 125 S. Ct. 1183, 1190 (2005) (quoting Trop v.

Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598 (1958) (plurality opinion)).

Moreover, the “applicability [of the Eighth Amendment’s prohibition on cruel and

unusual punishment] must change as the basic mores of society change.” Kennedy

v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 2649 (2008) (citing Furman v.

Georgia, 408 U.S. 238, 382, 92 S. Ct. 2726, 2800 (1972)).

      The Texas Penal Code provides, in relevant part:

         (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: . . .
            (2) life without parole.

TEX. PENAL CODE § 12.31(a). In this framework a defendant convicted of a capital

felony faces a minimum penalty of life imprisonment without the possibility of

parole. Since the State did not seek the death penalty, Thomas faced a mandatory

sentence of life without parole if convicted. Section 12.31(b) further provides that

the jury is informed that a sentence of life imprisonment is mandatory upon

conviction of a capital felony when the state does not seek the death penalty. Id. §

12.31(b). Section 12.31 leaves no provision for individualized consideration of the
                                        21
defendant’s character, background, or other mitigating factors which may justify a

lesser sentence than life imprisonment without parole. Thomas asserts that the

absence of such a provision violates the constitutional prohibition on cruel and

unusual punishment.

      Consideration by the jury or judge of mitigating factors is required for most

impositions of the death penalty, but that requirement has not been extended to the

lesser penalty of life imprisonment without parole for adult offenders. See Lockett

v. Ohio, 438 U.S. 586, 604–05, 98 S. Ct. 2954, 2964–65 & n.11 (1978). This

requirement is applied in death penalty cases due partially to the “nonavailability

of corrective or modifying mechanisms with respect to an executed capital

sentence.” Id. at 605, 98 S. Ct. at 2965. The sentence of life in prison without

parole is “the second most severe penalty permitted by law.” Harmelin v.

Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705 (1991) (Kennedy, J.

concurring). A sentence of life imprisonment without parole “‘means denial of

hope; it means that good behavior and character improvement are immaterial; it

means that whatever the future might hold in store for the mind and spirit of [the

convict], he will remain in prison for the rest of his days.’” Graham v. Florida, 560

U.S. 48, 130 S. Ct. 2011, 2027 (2010) (quoting Naovarath v. State, 105 Nev. 525,

526, 779 P.2d 944 (1989)). Both the death sentence and the sentence of life

without parole preclude the possibility of reentering society; in both circumstances,

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to the extent that the convicted is given opportunity to grow or engage in self-

improvement, there nevertheless is no opportunity to earn his or her freedom on

this basis. Thus, “life without parole sentences share some characteristics with

death sentences that are shared by no other sentences . . . the sentence alters the

offender’s life by a forfeiture that is irrevocable.” Id. at 2027.

      Despite the similarities between the death sentence and the sentence of life

without parole, the Supreme Court has declined to mandate consideration of

mitigating factors for the imposition of life imprisonment without parole in the

case of adults. In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680 (1991), the

Supreme Court rejected an Eighth Amendment objection to a mandatory sentence

of life imprisonment without parole. 501 U.S. at 996, 111 S. Ct. at 2702. The

petitioner argued that his sentence violated the Eighth Amendment because the

mandatory sentence was disproportionate to the crime for which he was convicted

(possession of more than 650 grams of cocaine), and because the judge was

statutorily required to impose the sentence of life imprisonment without parole and

could not consider any mitigating factors. See id. at 961–62, 111 S. Ct. at 2683–

84. The Court rejected the petitioner’s assertion that the Eighth Amendment

mandated consideration of mitigating factors in order to impose his sentence:

             [Petitioner] argues that it is “cruel and unusual” to impose a
             mandatory sentence of such severity, without any consideration
             of so-called mitigating factors such as, in his case, the fact that
             he had no prior felony convictions . . . . [T]his claim has no
                                           23
             support in the text and history of the Eighth Amendment.
             Severe, mandatory penalties may be cruel, but they are not
             unusual in the constitutional sense, having been employed in
             various forms throughout our Nation’s history . . . . There can
             be no serious contention, then, that a sentence which is not
             otherwise cruel and unusual becomes so simply because it is
             “mandatory.”

Id. at 994–95, 111 S. Ct. at 2701; see also id. at 1006, 111 S. Ct. at 2708 (Kennedy,

J., concurring) (“It is beyond question that the legislature ‘has the power to define

criminal punishments without giving the courts any sentencing discretion . . . .’”

(quoting Chapman v. United States, 500 U.S. 453, 467, 111 S. Ct. 1919, 1928

(1991))).

      Last year in Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court

held that the Eighth Amendment forbids a sentencing scheme that mandates life

imprisonment without possibility of parole for juvenile homicide offenders. 132 S.

Ct. at 2457–58. In Miller, the Court relied heavily on the inherent differences

between juveniles and adults in order to reach its holding. See id. at 2463–66. The

Court noted that children may be less deserving of the most severe punishments

because they feature a “‘lack of maturity and an underdeveloped sense of

responsibility.’” Id. at 2464 (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).

The Court further noted that children “‘are more vulnerable . . . to negative

influences and outside pressures’” than adults and have limited “‘contro[l] over

their own environment.’” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).

                                         24
The Court also explained that a child’s actions are less likely to be indicative of

lifelong delinquency because “‘[o]nly a relatively small proportion of

adolescents’” who engage in illegal activity “‘develop entrenched patterns of

problem behavior.’” Id. (quoting Roper, 543 U.S., at 570, 125 S. Ct. at 1196).

Thus, children may be more capable of rehabilitation than older convicts and may

warrant more opportunity to earn their reentry into society.

      Thomas was not a juvenile when she committed the charged offense, nor

does she offer any argument that she falls within a category of defendants who,

like the juvenile offenders at issue in Miller, should not be subject to a sentence of

life without parole without consideration of mitigating factors.        Accordingly,

Miller does not apply to her, and Harmelin controls Thomas’s appeal. Given the

Court’s holding therein, we cannot agree with Thomas that the Eighth Amendment

is violated by the unavailability of any procedural mechanism to allow for

consideration of mitigating factors under the mandatory sentencing scheme

contained within section 12.31 of the Texas Penal Code. See Harmelin, 501 U.S.

at 994–95, 111 S. Ct. at 2701; accord Duran v. State, 363 S.W.3d 719, 723 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d).

      Section 13 of the Texas Bill of Rights provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”

TEX. CONST. art. I, § 13. This language features only one variation from the

                                         25
language of the Eighth Amendment of the U.S. Constitution: “[t]he Texas

Constitution states its prohibition disjunctively— ‘cruel or unusual’ punishments—

instead of the Eighth Amendment’s conjunctive formulation—‘cruel and

unusual.’” Duran, 363 S.W.3d at 723. Thomas relies on the textual difference

between the Texas Constitution and U.S. Constitution to support her argument that

the state and federal constitutional provisions are not coextensive because of the

different meanings of “and” and “or.”        Thomas argues based on text that a

punishment may be prohibited in Texas solely because it is “cruel” or solely

because it is “unusual.” The Court of Criminal Appeals has rejected the argument

that this distinction permits the Texas provision to be interpreted more expansively

than the Eighth Amendment with respect to the constitutionality of capital

punishment. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).

Following that controlling interpretation, we will not assume that those terms mean

something different in the Texas Constitution than in the Eighth Amendment of the

federal Constitution. Duran, 363 S.W.3d at 723.

      Thomas argues that the imposition of a mandatory life sentence without

parole is unusual within the meaning of Article I, Section 13 of the Texas Bill of

Rights, noting that only two categories of defendants (capital murder defendants

when the death penalty is not sought and certain repeat sex offenders) face an

automatic sentence of life imprisonment without parole.       However, “[s]evere,

                                        26
mandatory penalties . . . are not unusual in the constitutional sense, having been

employed in various forms throughout our Nation’s history.” Harmelin, 501 U.S.

at 994–95, 111 S. Ct. at 2701. Moreover, “the fact that a certain non-death-penalty

punishment is mandatory, and thereby precludes consideration of mitigation

evidence, does not automatically render the punishment cruel and unusual.” Moore

v. State, 54 S.W.3d 529, 541 (Tex. App.—Fort Worth 2001, pet. ref’d).

      Thomas further argues that the particularly strong respect for trial by jury in

Texas warrants interpreting Article I, Section 13 more broadly than the Harmelin

Court interpreted the Eighth Amendment.         She substantiates this assertion by

noting the fact that Texas is one of the few states with jury sentencing.

      While Thomas is correct in identifying the longstanding Texas policy of

reverence for jury trials and jury sentencing, she presents no authority sufficient to

warrant this court in taking the jurisprudential step she proposes. Moreover, the

Court of Criminals Appeals has read the Texas Constitution’s guaranty of trial by

jury not to encompass jury sentencing. Ex parte Marshall, 72 Tex. Crim. 83, 85,

161 S.W. 112, 113 (1913). In Marshall, the court addressed whether the Texas

Constitution requires “that the jury shall assess the punishment.” Id. The court

held that “the fixing of the penalty by a jury” is not “either implied or guaranteed”

by the Texas Constitution. Id.; see also Martinez v. State, 66 S.W.3d 467, 471

(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (“[T]he Texas Constitutional

                                          27
right to a jury trial does not include the right to have the jury assess punishment.”).

In light of the foregoing, we cannot now conclude that the mandatory imposition of

a life sentence without parole constitutes cruel or unusual punishment within the

meaning of Texas Constitution. Accord Duran, 363 S.W.3d at 723–24.

      We hold that the mandatory life sentence imposed under section 12.31 of the

Texas Penal Code is not unconstitutional under the Eighth Amendment of the

United States Constitution or Article I, Section 13 of the Texas Constitution. We

overrule Thomas’s fourth and fifth issues.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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