Affirmed in Part; Reversed and Remanded in Part and Memorandum Opinion on
Remand filed December 13, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                  NO. 14-09-01040-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               ON       REMAND


       Appellant Herbert Ray Wilson 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) an automatic sentence of life without the
possibility of parole violated the Eighth Amendment to the U.S. Constitution because he
was a juvenile at the time of the offense. Finding no error, a panel of this Court affirmed
appellant’s conviction and sentence.    Wilson v. State, 348 S.W.3d 32 (Tex. App.—
Houston [14th Dist.] 2011, pet. ref’d). On petition for writ of certioriari, the United
States Supreme Court vacated the judgment and remanded to this court for further
consideration in light of Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012).
Having considered this case further in light of the new decision in Miller, we reverse the
trial court’s judgment as to punishment and remand for a new punishment hearing only.

       Following a line of cases recognizing that juveniles may have less “moral
culpability” because of their youth, the Supreme Court held that mandatory life
imprisonment without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Miller, 132 S.Ct. at 2460. The Court in Miller reasoned:

       [A] judge or jury must have the opportunity to consider mitigating
       circumstances before imposing the harshest possible penalty for juveniles.
       By requiring that all children convicted of homicide receive lifetime
       incarceration without possibility of parole, regardless of their age and age-
       related characteristics and the nature of their crimes, the mandatory
       sentencing schemes before us violate this principle of proportionality, and
       so the Eighth Amendment’s ban on cruel and unusual punishment.

Id. at 2475.

       The Court specifically did not consider the argument that the Eighth Amendment
categorically bars life without parole for juveniles. Id. at 2469. Although the Supreme
Court thought “appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon,” it did “not foreclose a sentencer’s ability to make that
judgment in homicide cases.” Id. at 2469. The Court required that sentencers “take into
account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.”        Id.   The Court cited immaturity, family
environment, circumstances of the crime and the possibility of rehabilitation as important
considerations for the sentencer. Id. at 2468–70.

       In this case, the evidence shows that appellant was seventeen years old at the time
of the offense. Under the current statutory scheme, appellant’s crime carries a mandatory
minimum punishment of life without the possibility of parole. See Tex. Penal Code Ann.


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§ 12.31(b)(2). Because appellant’s punishment violates the Eighth Amendment to the
United States Constitution, we sustain his second issue.

      Ordinarily, this court has authority to reform an improper sentence to reflect the
sentence that should have been given. See Tex. R. App. P. 43.3. We cannot modify the
sentence to impose one that is not statutorily authorized, however. See Henry v. State,
No. 05-11-00676-CR, 2012 WL 3631251 (Tex. App.—Dallas Aug. 24, 2012, no pet.)
(mem. op.).

      Accordingly, we affirm the trial court’s judgment on guilt for the reasons given in
our original opinion. For the reasons explained above, however, we reverse the judgment
as to punishment and remand to the trial court for a new punishment hearing.




                                         /s/       J. Brett Busby
                                                   Justice



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




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