








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. PD-0833-13 and PD-0999-13


DERRICK LYNN LEWIS, Appellant
and 
ERRON KEITH NOLLEY, Appellant

v.

THE STATE OF TEXAS



ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SEVENTH AND FOURTEENTH COURTS OF APPEALS
BELL AND HARRIS COUNTIES


 Johnson, J., delivered the opinion of the Court in which Meyers, Price,
Womack, Keasler, Hervey, Cochran, and Alcalá, JJ., joined.  Keller, P.J.,
concurred.

O P I N I O N 

	These consolidated cases ask us to interpret the United States Supreme Court's recent
decision in Miller v. Alabama, (1) which held that the Eighth Amendment to the United States
Constitution forbids sentencing schemes for juveniles in which life imprisonment without the
possibility of parole is mandatory rather than based upon an individualized sentencing assessment. 
Appellants argue that their sentences, which the appellate courts reformed to life imprisonment, are
unconstitutional because they were not afforded individualized hearings at which to present
mitigating evidence.  We do not read Miller so broadly and therefore affirm the judgment of the
appellate courts.  
I. Background
Lewis
	On or about August 28, 2008, Appellant Lewis killed Jaime Lujan while in the course of
committing or attempting to commit retaliation against Lujan's coworker, who had provided police
with information that led to the arrest of Lewis's friend. Appellant Lewis was born on August 29,
1991, meaning that he was sixteen on the date of the offense.  He was originally detained as a
juvenile but was later certified to be tried as an adult.  See Tex. Fam. Code Ann. § 54.02.  He was
eventually convicted of capital murder and assessed a mandatory sentence of life imprisonment
without the possibility of parole as required by the then-current version of Section 12.31 of the Penal
Code. (2)  Tex. Penal Code Ann. § 12.31(a) (2008) ("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
institutional division for life without parole.").  He was not afforded the opportunity to present
mitigating evidence at a punishment hearing because life imprisonment without parole was
automatic under the statutory scheme.  Lewis filed a timely appeal, and the appellate court affirmed
his conviction.  Lewis v. State, No. 07-11-0444-CR (Tex. App.--Amarillo Apr. 17, 2013),
withdrawn by Lewis v. State, 402 S.W.3d 852 (Tex. App.--Amarillo 2013).  In 2013, after the
Supreme Court announced its decision in Miller, he filed a supplemental brief contending that his
life-without-parole sentence was unconstitutional in light of Miller v. Alabama, 567 U.S. ___, 132
S.Ct. 2455 (2012) (holding mandatory life without parole cruel and unusual punishment when
imposed on juvenile offenders).  The appellate court reaffirmed appellant Lewis's conviction but
reformed his sentence to life imprisonment. (3) Lewis v. State, 402 S.W.3d 852, 867 (Tex.
App.--Amarillo 2013).  
Nolley
	Appellant Nolley was also sixteen years old when he shot and killed Larry Ayala during a
robbery and home invasion on July 27, 2010. (4)  His case was also transferred from the juvenile
district court to the criminal district court.  See Tex. Fam. Code Ann. § 54.02.  On April 19, 2012,
a jury convicted appellant Nolley of capital murder.  Without a hearing at which to present mitigating
evidence, appellant Nolley was sentenced to life imprisonment without the possibility of parole.  On
appeal, he challenged the legality of his sentence under the 2009 version of Section 12.31(a) of the
Texas Penal Code and Miller v. Alabama.  The appellate court reformed appellant Nolley's sentence
to life imprisonment to comport with Section 12.31(a) of the Penal Code and Supreme Court
precedent but affirmed the trial court's judgment in all other respects.  Nolley v. State, No. 14-12-00394-CR, 2013 WL 3326796, at *5 (Tex. App.--Houston [14th Dist.] Jun. 27, 2013) (mem. op.,
not designated for publication).  
	Both appellants filed petitions for discretionary review, claiming that their reformed
sentences are unconstitutional because Miller requires individualized sentencing of juvenile
offenders.  Appellant Nolley contends, more specifically, that Miller mandates individualized
sentencing when juveniles in Texas face life imprisonment because it is the most severe punishment
for which juveniles are eligible in this state.  Because we do not read Miller so broadly, we affirm
the judgments of the courts of appeals.  
II. Governing Law
	Section 12.31 of the Texas Penal Code governs punishment for capital felonies.  It provides: 
(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 (5) 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). (6)  Life imprisonment, with the possibility of parole, is the 
mandatory sentence for defendants convicted of capital murder for crimes they committed as
juveniles. 
	In Miller v. Alabama, (7) the Supreme Court acknowledged, as it has in the past, that juveniles
are fundamentally different from adult offenders.  Juvenile offenders' "immaturity, impetuosity, and
failure to appreciate risks and consequences," (8) reduce their culpability level.  The Supreme Court
treats juveniles differently because the very fact of their youth indicates that their identities--as
criminals or otherwise--are not yet finalized.  "[M]andatory punishment disregards the possibility
of rehabilitation even when the circumstances most suggest it."  Miller, 132 S.Ct. at 2468.  The
Supreme Court held that, because juveniles are different and mandatory sentencing schemes make
those differences irrelevant, "the Eighth Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders."  Id. at 2469.  This holding is narrow. 
Juveniles are still constitutionally eligible for life without parole, but Miller requires an
individualized determination that a defendant is "the rare juvenile offender whose crime reflects
irreparable corruption."  Id. (quotation marks omitted).  
	However, Miller does not forbid mandatory sentencing schemes.  The mandatory nature of
a sentencing scheme is not the aspect that precludes rehabilitation; rather, the sentencing scheme in
Miller was unconstitutional because it denied juveniles convicted of murder all possibility of parole,
leaving them no opportunity or incentive for rehabilitation.  Life in prison with the possibility of
parole leaves a route for juvenile offenders to prove that they have changed while also assessing a
punishment that the Legislature has deemed appropriate in light of the fact that the juvenile took
someone's life under specified circumstances.  See Tex. Penal Code Ann. § 19.03(a). III. Application
	Appellants argue that they are entitled to individualized sentencing hearings before being
assessed sentences of life imprisonment because they were juveniles at the time of their offenses. 
This is not what Miller requires.  Miller does not entitle all juvenile offenders to individualized
sentencing.  It requires an individualized hearing only when a juvenile can be sentenced to life
without the possibility of parole.  After the reformations by the appellate courts, appellants are not
sentenced to life without parole, and under Section 12.31 of the Penal Code, juvenile offenders in
Texas do not now face life without parole at all.  Therefore, appellants' cases do not fall within the
scope of the narrow holding in Miller. (9) 
	Appellant Nolley argues that, because Section 12.31 makes life imprisonment the most severe
penalty available to juveniles in the state of Texas, he is entitled to an individualized hearing before
he can be assessed that sentence.  He cites the Supreme Court's language that "Graham, (10) Roper, (11)
and our individualized sentencing decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest possible penalty for
juveniles," Miller, 132 S.Ct. at 2475, for the proposition that courts should read Miller to apply to
their jurisdiction's strictest penalty. (12)  Appellant's reliance is misplaced.  The sentence immediately
following that one reiterates that mandatory life imprisonment without the possibility of parole for
juvenile offenders violates the principle of proportionality and, accordingly, the Eighth
Amendment's ban on cruel and unusual punishment.  In light of the simultaneous references to
Graham and Roper, the United States Supreme Court's choice of "the harshest possible
punishment," rather than "a state's harshest punishment," indicates that it was referring to sentencing
a juvenile to life without parole.  Finally, and most devastating to appellant's cause, is another
sentence from the Miller opinion: "We therefore hold that mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel
and unusual punishments.'"  Miller, 132 S.Ct. at 2460.  Appellant's suggested interpretation is
broader than the Supreme Court's choice of language supports.  
IV. Conclusion
	Because the holding in Miller is limited to a prohibition on mandatory life without parole for
juvenile offenders, appellants are not entitled to punishment hearings.  We therefore affirm the
judgment of the appellate courts.  

Delivered: April 30, 2014
Publish
1.  567 U.S. ___, 132 S.Ct. 2455 (2012).  
2.  We summarized the history of Section 12.31 over the last decade in footnote 3 of Ex parte Maxwell: 

Until 2005, an individual adjudged guilty of a capital felony in a case in which the State did not seek
the death penalty was punished by life.  Tex. Penal Code § 12.31(a) (2003).  From 2005 to 2009,
such an individual was punished by life without parole.  Tex. Penal Code § 12.31(a) (2005-2007). 
From 2009 to 2013, the sentence was (1) life, if the individual's case was transferred to the district
court under Section 54.02, Family Code; or (2) life without parole.  Tex. Penal Code § 12.31(a)
(2009-2011).  Section 12.31(a)--amended in response to Miller--now provides that "[a]n 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 comitted 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 § 12.31(a) (2013). 

Ex parte Maxwell, No. AP-76,964, 2014 WL 941675, at *9 (Tex. Crim. App. March 12, 2014).  
3.  We recently held that Miller v. Alabama does apply retroactively to post-conviction challenges.  Ex parte
Maxwell, No. AP-76,964, 2014 WL 941675 (Tex. Crim. App. March 12, 2014).  
4.  Nolley was born on November 12, 1993.
5.  The Supreme Court has made juvenile offenders categorically ineligible for the death penalty, so all cases
in which juvenile offenders are charged with capital murder will be governed by Section 12.31(a).  See Roper v.
Simmons, 543 U.S. 551, 574 (2005); Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).  
6.  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 into effect on July 22, 2013.  Acts
2013, 83rd Leg., 2nd C.S., ch. 2 (S.B. 2), § 3.  
7.  "In deciding the issue, the Court consolidated two cases: Miller, an Alabama case on direct appeal, and
Jackson v. Hobbs, an Arkansas case on collateral review.  Both cases involved 14-year-old boys convicted of first-degree murder and sentenced to mandatory life in prison without parole."  Ex parte Maxwell, 2014 WL 941675, at
*2.   
8.  Miller, 567 U.S. ___, 132 S.Ct. at 2469.  
9.  Other courts have commented on how narrow the holding in Miller is.  See, e.g., United States v.
Reingold, 731 F.3d 204, 214 (2d Cir. 2013) ("[T]he Supreme Court identified no categorical constitutional
requirement that juveniles sentenced to life imprisonment for murder be offered some opportunity for release.  It
ruled only that life without parole for such juvenile offenders could not be mandatory and had to reflect an
individualized sentencing determination."); Randell v. State, 2013 WL 7158872, at *1, n.1 (Nevada 2013)
(unpublished opinion) (Miller does not apply because "[i]n Nevada, the decision of whether to impose a sentence of
life without the possibility of parole is discretionary, and therefore, appellant's case does not run afoul of Miller." 
(citations omitted)). 
10.  Graham v. Florida, 560 U.S. 48, 74 (2010) ("This Court now holds that for a juvenile offender who did
not commit homicide the Eighth Amendment forbids the sentence of life without parole.").  
11.  Roper v. Simmons, 543 U.S. 551, 575 (2005) (holding the death penalty cruel and unusual when imposed
upon juvenile offenders).  
12.  He also attempts to analogize the Supreme Court's line of cases comparing life without parole for
juveniles with the death penalty for adults.  E.g., Graham, 560 U.S. at 74 (juveniles' lessened culpability makes it
cruel and unusual to impose sentences of life without parole on them for non-homicide offenses in the same way that
imposing the death penalty on adults for non-homicide offenses is cruel and unusual).  This comparison fails because
appellant is sentenced to life in prison, not life without parole.  The Constitution permits states without the death
penalty to impose life without parole sentences on adults, so even if he made a valid comparison, this argument
would not aid appellant.  
