                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00194-CR


DAMIAN LAMON MURKLEDOVE                                                  APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                                     OPINION

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                                  I. INTRODUCTION

      A jury convicted Appellant Damian Lamon Murkledove of capital murder,

and in accordance with the mandatory sentencing statute, the trial court

sentenced him to life in prison without the possibility of parole. See Tex. Penal

Code Ann. §§ 12.31(a)(2), 19.03(a)(2) (West Supp. 2013).            In ten points, he

complains of the jury instructions, the trial court’s instructions to the venire panel,
the admission of his written statements, and the constitutionality of mandatory life

without parole sentencing. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      One evening after Murkledove played cards with friends, Dominique Jones

asked to speak with him outside. Jones informed Murkledove that he wanted to

burglarize the house of their mutual acquaintance, Daniel Garner. Jones told

Murkledove that he knew when the house would be vacant but that if Garner

happened to be there, Jones “would smoke him.” Jones offered for Murkledove

to participate in the break-in. Murkledove went home that night and thought

about what Jones had told him.

      The following morning, after Murkledove showered, he texted Jones and

said he “might need to hit . . . a lick,” which means to break into a house and

steal property. Jones responded that he was going to burglarize Garner’s house

and asked if Murkledove could find a ride. Murkledove called Bryan Jones,1 who

agreed to provide transportation in exchange for $125. Murkledove then texted

Garner to ask if he was at work; Murkledove was afraid that if Garner was home

during the break-in, Jones might shoot him. Garner said he was not at work.

      Bryan picked up Murkledove, and the two drove to Jones’s house to get

him. After picking up Jones, they went to Jones’s grandmother’s house so that

Jones could get his gun from the house. They then drove to Garner’s house, and

      1
      Bryan Jones is referred to as “Bryan”; Dominique Jones is referred to as
“Jones.”


                                         2
Bryan waited in the car while Murkledove and Jones walked up to the house.

Jones opened the door and saw Garner inside playing videogames. Jones shot

and killed him. Jones and Murkledove loaded Bryan’s vehicle with items from

Garner’s home, including a television, two X-box gaming systems, a computer, a

basket full of purses, a small lockbox, and an assault rifle.

      The men drove to Jones’s grandmother’s house. Jones told Murkledove to

“sneak” the stolen rifle inside the house. Jones’s uncle opened the lockbox in the

backyard, and they found prescription medicine inside. Murkledove threw the

medicine in the sewer across the street. Jones, Murkledove, and Bryan drove to

another house, where they traded the TV for a pair of tire rims, some marijuana,

and money. The men returned to Jones’s grandmother’s house, where they

played dice for a while before Bryan drove Jones and Murkledove home. Jones

took the purses with him to give to his mother.

                              III. JURY INSTRUCTIONS

      Murkledove’s first through fourth and sixth through eighth points all involve

the trial court’s jury instructions. We will address each of his complaints below.

                              A. Standard of Review

      The purpose of the jury charge is to inform the jury of the applicable law

and guide the jury in its application in the case, and the trial judge is ultimately

responsible for the charge’s accuracy. Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007).

In our review of a jury charge, we first determine whether error occurred; if error


                                          3
did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.

Crim. App. 2012). If error occurred, whether it was preserved determines the

degree of harm required for reversal. Id.

      Generally, a defendant is entitled to a jury instruction on every defensive

issue raised by the evidence when requested. Allen v. State, 253 S.W.3d 260,

267 (Tex. Crim. App. 2008). A defense is supported or raised by the evidence “if

there is some evidence, from any source, on each element of the defense that, if

believed by the jury, would support a rational inference that that element is true.”

Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007), cert. denied,

553 U.S. 1059 (2008).      The defendant bears the burden of showing some

evidence exists to support each element of the defense. Juarez v. State, 308

S.W.3d 398, 404 (Tex. Crim. App. 2010); Shaw, 243 S.W.3d at 657–58. A trial

court may refuse an instruction on a defensive theory if the issue was not raised

by the evidence. See Shaw, 243 S.W.3d at 657–58. When reviewing a trial

court’s decision to deny a requested defensive instruction, “we view the evidence

in the light most favorable to the defendant’s requested submission.” Bufkin v.

State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).

                      B. Instruction on the Law of Parties

      In his first two points, Murkledove argues that by including part of the

definition of the offense of conspiracy in the jury charge, the court actually

instructed the jury that it could convict him as a party to the more serious offense




                                         4
of capital murder if the jury found him guilty of conspiracy, an offense for which

he was not indicted.

      A person commits the offense of capital murder when he intentionally

causes the death of an individual during the course of committing or attempting

to commit burglary or robbery. Tex. Penal Code Ann. § 19.03(a)(2); see also id.

§§ 19.02(b)(1), 29.02(a), 30.02(a) (West 2011). A person commits the offense of

criminal conspiracy if, with the intent that a felony be committed, he agrees with

one or more persons that they or one or more of them engage in conduct that

would constitute the felony offense. Id. § 15.02(a)(1) (West 2011).

      A person may be convicted as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or both. Id. § 7.01(a) (West 2011). The law of parties, set

forth in penal code section 7.02, may be applied to a case even though no such

allegation is contained in the indictment. Montoya v. State, 810 S.W.2d 160, 165

(Tex. Crim. App. 1989), cert. denied, 502 U.S. 961 (1991); see Tex. Penal Code

Ann. § 7.02 (West 2011). Under section 7.02(a), a person may be found guilty of

an offense as a party to an offense if “acting with intent to promote or assist the

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

aid the other person to commit the offense.” Tex. Penal Code Ann. § 7.02(a)(2).

Section 7.02(b) provides another theory of party liability as a co-conspirator:

            If, in the attempt to carry out a conspiracy to commit one
      felony, another felony is committed by one of the conspirators, all
      conspirators are guilty of the felony actually committed, though


                                         5
        having no intent to commit it, if the offense was committed in
        furtherance of the unlawful purpose and was one that should have
        been anticipated as a result of the carrying out of the conspiracy.

Id. § 7.02(b).

        Here, the abstract portion of the court’s charge included instructions on the

law of parties from subsections (a) and (b) of section 7.02. It also included a

definition of the term “conspiracy” as follows: “The term ‘conspiracy’ means an

agreement with one or more persons that they or one or more of them engage in

conduct that would constitute a felony.” The application portion of the court’s

charge authorized Murkledove’s conviction for capital murder as the perpetrator

of Garner’s death, as a party to the offense under the law of parties set forth in

section 7.02(a), or as a party to the offense under the law of parties set forth in

section 7.02(b). Specifically regarding the third theory, the charge instructed the

jury:

               If you find from the evidence beyond a reasonable doubt that
        Damian Murkledove and Dominique Jones entered into an
        agreement to commit the offense of robbery or burglary of a
        habitation as above defined of Daniel Garner and pursuant to that
        agreement, they did carry out their conspiracy and that on or about
        the 19th day of February, 2010 in Tarrant County, Texas, while in the
        course of committing such robbery or burglary, Dominique Jones
        intentionally caused the death of Daniel Garner by shooting him with
        a firearm, and that the defendant Damian Murkledove pursuant to
        the conspiracy, if any, with the intent to assist Dominique Jones in
        the commission of said robbery or burglary, then and there at the
        time of the shooting was acting with and aiding or attempting to aid
        Dominique Jones in the execution of the robbery or burglary of
        Daniel Garner, if any, and that the shooting of Daniel Garner was
        committed in furtherance of the conspiracy, if any, of Damian
        Murkledove and Dominique Jones to rob Daniel Garner or to
        burglarize the home of Daniel Garner and that the shooting of Daniel


                                          6
      Garner, if any, was an offense that should have been anticipated as
      a result of the carrying out of the conspiracy, then you will find the
      defendant, Damian Murkledove, guilty of Capital Murder as charged
      in the indictment.

      The court of criminal appeals, when faced with an almost identical jury

instruction to the one at issue here, has addressed the same argument that

Murkledove advances here. See Montoya, 810 S.W.2d at 165. In Montoya, the

court of criminal appeals rejected the appellant’s argument that the inclusion of

the theory of conspiracy in the court’s charge erroneously allowed the jury to

consider whether the appellant was guilty of the separate offense of criminal

conspiracy under penal code section 15.02. Id. The court held that the charge,

which also defined the term “conspiracy,” “merely contained an alternative

‘parties’ charge as provided in [penal code section] 7.02.” Id.; see also English v.

State, 592 S.W.2d 949, 954 (Tex. Crim. App.) (noting that section 7.02(b) “does

not address itself to the offense of conspiracy, but to an [a]ttempt to carry out a

conspiracy[]; it encompasses attempted or completed offenses that are the object

of the conspiracy”), cert. denied, 449 U.S. 891 (1980).

      Contrary to Murkledove’s argument, the application of section 7.02(b) and

the inclusion of the definition of the term “conspiracy” from section 15.02 did not

permit the jury to convict him of capital murder under the theory of party liability if

it found him guilty of the offense of conspiracy.       See Gilmore v. State, 397

S.W.3d 226, 245 (Tex. App.—Fort Worth 2012, pet. ref’d); Wood v. State, 4

S.W.3d 85, 89 (Tex. App.—Fort Worth 1999, pet. ref’d); see also Ladd v. State, 3



                                          7
S.W.3d 547, 565 (Tex. Crim. App. 1999) (holding that defining term “conspiracy”

as that term is used in section 7.02(b) was not error), cert. denied, 529 U.S. 1070

(2000). Instead, the charge properly allowed the jury to find Murkledove guilty of

capital murder under the law of parties. See Wood, 4 S.W.3d at 89.

      We overrule Murkledove’s first and second points.

    C. No Instruction on Criminal Conspiracy and Its Sentencing Range

      In his third point, Murkledove argues that the trial court erred by not

instructing the jury that it could convict him of criminal conspiracy and by not

including the penalty range for that offense.2

      Murkledove did not request a lesser-included offense instruction on

conspiracy.   The trial court has no duty to sua sponte instruct the jury on a

lesser-included offense because a lesser-included offense, like a defensive

issue, is not “applicable to the case” absent a request for its inclusion in the jury

charge. See Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010).

      Regarding an instruction on the penalty range for conspiracy, Murkledove

was not charged with conspiracy, the jury did not receive an instruction on it, and

in any event, an instruction regarding punishment is not proper in the guilt-

innocence stage of trial. See Staggs v. State, 503 S.W.2d 587, 588 (Tex. Crim.

App. 1974) (“[I]nclusion of information regarding punishment in the charge at the


      2
       The offense of criminal conspiracy is “one category lower than the most
serious felony that is the object of the conspiracy,” here, capital murder. See
Tex. Penal Code Ann. § 15.02(d).


                                         8
guilt-innocence stage is improper.”); see also Tex. Code Crim. Proc. Ann. art.

37.07, § 2(a) (West Supp. 2013) (providing that trial court shall instruct jury on

issue of guilt or innocence, without authorizing jury to pass upon the punishment

to be imposed).

      We overrule Murkledove’s third point.

                       D. Instruction on Principal or Party

      In his fourth point, Murkledove argues that the trial court erred by including

in the jury instructions an instruction that it could convict him as either a principal

or a party. Murkledove argues that this instruction was erroneous because the

indictment did not contain a parties allegation.

      It is well-settled that a jury may be charged on the law of parties even

though no such allegation is contained in the indictment. Marable v. State, 85

S.W.3d 287, 287 & n.2 (Tex. Crim. App. 2002) (collecting cases); see Adames v.

State, 353 S.W.3d 854, 861 (Tex. Crim. App. 2011) (reaffirming that state and

federal law both specify that due process does not require defendant’s culpability

as a party to be plead in charging instrument), cert. denied, 132 S. Ct. 1763

(2012).     “This rule applies not only to the law of parties found in [s]ection

7.02(a)(2) [of the Texas Penal Code] but also the law of parties found in [s]ection

7.02(b).”    Montoya, 810 S.W.2d at 165.       Thus, the trial court did not err by

including an instruction on the law of parties in the jury charge even though it was

not pled in the indictment.

      We overrule Murkledove’s fourth point.


                                          9
              E. No Instruction on Independent Impulse Defense

       In his sixth point, Murkledove argues that the trial court erred by denying

his request for a jury instruction on the law of independent impulse. The theory

behind an independent impulse instruction is that, although the defendant had

agreed to participate in some form of offense rising to the level of a felony, the

offense for which he is being prosecuted arose from an independent impulse.

See Mayfield v. State, 716 S.W.2d 509, 515 (Tex. Crim. App. 1986), overruled by

Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001). Here, Murkledove

argues that he was entitled to an instruction on independent impulse because

evidence showed that he was “admittedly intent” on burglarizing Garner’s home

but that he did not anticipate that Jones would shoot Garner.

       The trial court must instruct the jury on properly-requested statutory

defenses raised by the evidence. Walters v. State, 247 S.W.3d 204, 208–09

(Tex. Crim. App. 2007); Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App.

1997). But a defense that is not recognized by the legislature in the relevant

statute as either a defense or as an affirmative defense does not warrant a

separate instruction.   See Giesberg v. State, 984 S.W.2d 245, 246–47 (Tex.

Crim. App. 1998), cert. denied, 525 U.S. 1147 (1999). Independent impulse is

not a listed statutory defense in the penal code. See Solomon, 49 S.W.3d at

368.    As the court of criminal appeals has explained, an instruction on

independent impulse is merely a negation of elements in the State’s case;

therefore, “its inclusion would be superfluous, and in fact, would be an


                                        10
impermissible comment on the weight of the evidence.” Id.; see Walters, 247

S.W.3d at 209–10; Giesberg, 984 S.W.2d at 250.

      Here, Murkledove’s proposed defensive issue would simply negate the

party-liability theory of the State’s case; all that was required, then, was for the

appropriate portions of the jury charge to track the language of section 7.02(b).

See Solomon, 49 S.W.3d at 368. In addressing Murkledove’s first two points

above, we set out the applicable portions of the jury charge, which track the

language of penal code section 7.02(b). The trial court did not err by denying

Murkledove’s request for an instruction on the law of independent impulse.

      We overrule Murkledove’s sixth point.

                    F. No Instruction on Necessity Defense

      In his seventh point, Murkledove argues that the trial court erred by

denying his request for a jury instruction on the defense of necessity. He argues

that evidence existed that he acted out of necessity to preserve his own life

because Jones said he would kill Garner and Murkledove feared that if he did not

participate, Jones would kill him too.

      The penal code provides that it is a defense to prosecution if:

      (1)  the actor reasonably believes the conduct is immediately
      necessary to avoid imminent harm;

      (2)   the desirability and urgency of avoiding the harm clearly
      outweigh, according to ordinary standards of reasonableness, the
      harm sought to be prevented by the law proscribing the conduct; and

      (3) a legislative purpose to exclude the justification claimed for the
      conduct does not otherwise plainly appear.


                                         11
Tex. Penal Code Ann. § 9.22 (West 2011); see id. § 9.02 (West 2011).             In

addition to the statutory elements, the court of criminal appeals has held that a

defendant must present evidence “essentially admit[ting] to every element of the

offense including the culpable mental state” in order to raise a necessity defense.

Shaw, 243 S.W.3d at 659.

      The first prong of the necessity defense requires evidence of a reasonable

belief of both immediate necessity and imminent harm. Tex. Penal Code Ann.

§ 9.22. “Reasonable belief” means a belief that would be held by an ordinary

and prudent person in the same circumstances as the defendant.             See id.

§ 1.07(a)(42) (West Supp. 2013). A defendant’s sincere belief that his conduct is

immediately necessary to avoid imminent harm is unreasonable as a matter of

law if the undisputed facts demonstrate a complete absence of “immediate

necessity” or “imminent harm” as legally defined. Dewalt v. State, 307 S.W.3d

437, 454 (Tex. App.—Austin 2010, pet. ref’d); see Pennington v. State, 54

S.W.3d 852, 857 (Tex. App.—Fort Worth 2001, pet. ref’d). “‘Imminent’ means

something that is immediate, something that is going to happen now.” Dewalt,

307 S.W.3d at 454. Harm is imminent when there is an emergency situation and

it is “immediately necessary” to avoid that harm, in other words, when a “split-

second decision” is required without time to consider the law. Pennington, 54

S.W.3d at 857; see also Dewalt, 307 S.W.3d at 454.

      Here, Murkledove points to a written statement that he made to police as

support for his requested jury instruction on necessity. Reviewing this statement


                                        12
and the entirety of the record in the light most favorable to Murkledove’s

necessity defense, no evidence shows any imminent danger to him or his family.

His statement to police does not demonstrate that he had to make a “split-second

decision” in order to avoid harm to himself or his family. See Dewalt, 307 S.W.3d

at 454.   Instead, his statement shows that he (1) learned the night before

Garner’s death that Jones wanted to burglarize Garner’s home and would kill

Garner “if it came down to it,” (2) thought about Jones’s proposal when he went

home that night, (3) texted Jones while still at home the following morning to say

that he needed to burglarize a house, (4) arranged for transportation to Garner’s

house while still at home, and (5) rode with Bryan to pick up Jones and then rode

with Bryan and Jones to pick up a gun before going to Garner’s house.

Moreover, nothing in the record reflects that Jones made any threats—immediate

or otherwise—to Murkledove if he did not assist with the break-in. Even if one

could infer that Murkledove feared the possibility of or potential for harm to

himself or his family, no evidence exists upon which an inference could be made

that harm was imminent when he decided to act. See Washington v. State, 152

S.W.3d 209, 212 (Tex. App.—Amarillo 2004, no pet.) (“[T]he evidence permits

one to reasonably infer no more than that appellant feared the possibility of or

potential for harm and acted in response thereto.”); see also Scroggs v. State,

396 S.W.3d 1, 13 (Tex. App.—Amarillo 2010, pet. ref’d, untimely filed) (noting

that appellants had overnight to deliberate the situation before they embarked on

their felonious conduct).   Reviewing the record in the light most favorable to


                                       13
Murkledove’s necessity defense, we hold that no evidence exists that

Murkledove reasonably believed his conduct was immediately necessary to avoid

imminent harm. See Tex. Penal Code Ann. § 9.22. Thus, the trial court did not

err by denying Murkledove’s request for an instruction on necessity.

      We overrule Murkledove’s seventh point.

                    G. No Instruction on Duress Defense

      In his eighth point, Murkledove argues that the trial court erred by denying

his request for a jury instruction on the defense of duress.     He argues that

evidence existed that he acted under duress because Jones threatened him.

      The affirmative defense of duress applies when the accused “engaged in

the proscribed conduct because he was compelled to do so by threat of imminent

death or serious bodily injury to himself or another.” Id. § 8.05(a) (West 2011).

To raise the defense, the evidence must show both compulsion and imminency.

Compulsion “exists only if the force or threat of force would render a person of

reasonable firmness incapable of resisting the pressure,” and imminency exists

where the person making the threat intends and is prepared to carry out the

threat immediately on the accused’s failure to commit the charged offense. Id.

§ 8.05(c); Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.]

1999, pet. ref’d) (holding that threat of future harm cannot be construed as

“imminent” under the statute).

      As we stated above in addressing Murkledove’s seventh point regarding

the necessity defense, no evidence exists in the record upon which an inference


                                       14
could be made that any threats perceived by Murkledove were imminent such

that he was compelled to participate in the break-in that led to Garner’s murder.

See Tex. Penal Code Ann. § 8.05(c); Anguish, 991 S.W.2d at 886. Murkledove

stated that he was worried that Jones would kill him if he did not participate, but

there is no evidence that Jones made a specific, objective threat to Murkledove

or another if Murkledove did not participate in the break-in. See Cameron v.

State, 925 S.W.2d 246, 250 (Tex. App.—El Paso 1995, no pet.) (finding no

objective basis for a claim of compulsion when evidence showed only that

defendant was afraid of co-conspirator’s temper and followed his orders). And

although Jones did threaten to kill Garner during the break-in “if it came to that,”

after learning this, Murkledove went home, went to bed, woke up the next

morning, showered, and contacted Jones on his own initiative to discuss “hitting

a lick.” While still at home, Murkledove then arranged for a driver to take him and

Jones to Garner’s house. Any threats perceived by Murkledove when he learned

of Jones’s plan were not imminent such that he was entitled to a duress

instruction. See Tex. Penal Code Ann. § 8.05(c); Anguish, 991 S.W.2d at 886.

Further, the defense of duress is unavailable if a defendant “intentionally,

knowingly, or recklessly placed himself in a situation in which it was probable that

he would be subjected to compulsion.” Tex. Penal Code Ann. § 8.05(d). For the

above reasons, we hold that the trial court did not err by denying Murkledove’s

request for a jury instruction on duress.

      We overrule Murkledove’s eighth point.


                                            15
                 IV. SECTION 12.31 INSTRUCTION TO VENIRE PANEL

      In his fifth point, Murkledove argues that the trial court erred by not

instructing the potential jurors that a sentence of life without parole is mandatory

upon conviction of a capital felony.

      Section 12.31 of the penal code requires that in a capital felony trial in

which the State does not seek the death penalty, prospective jurors should be

informed that a sentence of life imprisonment without parole is mandatory on

conviction of the capital felony. Id. § 12.31(b)(2).

      The record reflects that the trial court did not instruct the jurors pursuant to

section 12.31(b). However, Murkledove did not object or request that the trial

court give such an instruction. As a prerequisite for presenting a complaint for

appellate review, rule of appellate procedure 33.1(a) requires a timely objection

with sufficient specificity to make the trial court aware of the complaint. See Tex.

R. App. P. 33.1(a); Smith v. State, 420 S.W.3d 207, 214 (Tex. App.—Houston

[1st Dist.] 2013, pet. ref’d) (holding failure to request trial court instruct panel

pursuant to section 12.31(b) forfeited complaint); Flowers v. State, 959 S.W.2d

644, 646 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (same).

      Moreover, even if Murkledove had preserved his complaint for appeal, he

was not harmed by the trial court’s failure to instruct the potential jurors pursuant

to penal code section 12.31(b). See Ford v. State, 73 S.W.3d 923, 925–26 (Tex.

Crim. App. 2002) (“Under our harmless error rule the violation of a mandatory

statute does not, by itself, call for the reversal of a conviction.”); see also Tex. R.


                                          16
App. P. 44.2(b). In conducting a harm analysis of a jury-formation error, a court

should consider what right is protected by the statute. Ford, 73 S.W.3d at 925–

26; McCluer v. State, No. 14-09-00058-CR, 2010 WL 1438957, at *9 (Tex.

App.—Houston [14th Dist.] Apr. 13, 2010, pet. ref’d) (not designated for

publication) (applying Ford to section 12.31(b) error), cert. denied, 132 S. Ct. 319

(2011). The right protected by section 12.31(b) is the statutory right to have the

prospective jurors informed that the State is not seeking the death penalty and

that a sentence of life imprisonment without parole is mandatory upon conviction

of the capital offense. See Tex. Penal Code Ann. § 12.31(b).            And in jury-

formation issues, the substantial right at issue is the ability to empanel only those

jurors who are qualified to serve. See Gray v. State, 233 S.W.3d 295, 301 (Tex.

Crim. App. 2007).      If an appellant does not present record evidence that

demonstrates that the trial court’s error deprived him of a jury comprised of

legally qualified jurors, he suffered no harm. Id.

      Here, the record reflects that although the trial court did not instruct the

potential jurors of the mandatory life sentence, the potential jurors ultimately

received this information by defense counsel during voir dire. Defense counsel

told the prospective jurors, “Capital murder has got two punishments, the death

penalty or life without parole. Real simple. It’s the death penalty or life without

parole. [The prosecutor] told you they waived the death penalty. You find him

guilty of capital murder, he never leaves the prison.”       Murkledove points to

nothing in the record indicating that the lack of a section 12.31(b) instruction by


                                         17
the trial court resulted in the empaneling of unqualified jurors. See id.; Smith,

420 S.W.3d at 214; McCluer, 2010 WL 1438957, at *9.

      We overrule Murkledove’s fifth point.

                     V. ADMISSION OF WRITTEN STATEMENTS

      In his ninth point, Murkledove argues that the trial court erred by overruling

his objections to the admission of his handwritten statements on photographs of

the exteriors of three houses admitted as State’s Exhibits 9, 10, and 11. He

argues that the statements were not made voluntarily and that they violate code

of criminal procedure article 38.22’s requirement that certain warnings and a

waiver of those warnings appear on the face of the statements.3 See Tex. Code

Crim. Proc. Ann. art. 38.22, § 2 (West Supp. 2013).

      We need not determine whether the trial court erred by admitting the

handwritten statements on State’s Exhibits 9, 10, and 11 because even

assuming error, we hold that any error was harmless under the standard for

constitutional error.4 See Tex. R. App. P. 44.2(a); Kane, 173 S.W.3d at 594


      3
       Murkledove raised these issues in a pretrial motion to suppress, but after
a hearing on the issues, the trial court deferred ruling on them. When the State
offered those exhibits at trial, Murkledove reurged his objections, which the trial
court overruled. Thus, Murkledove properly preserved this issue for appeal. See
Tex. R. App. P. 33.1(a).
      4
       The trial court did not make written findings on the voluntariness issue, but
because we assume error and find no harm, we need not abate for findings on
voluntariness. See Randle v. State, No. 10-11-00117-CR, 2013 WL 1188647, at
*5–6 (Tex. App.—Waco Mar. 21, 2013, pet. ref’d) (mem. op., not designated for
publication) (assuming statement involuntary when no voluntariness hearing held
and conducting harm analysis); Kane v. State, 173 S.W.3d 589, 594 (Tex. App.—

                                        18
(applying rule 44.2(a) to error in admitting involuntary statement). In applying the

“harmless error” test, our primary question is whether there is a “reasonable

possibility” that the error might have contributed to the conviction. Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied,

526 U.S. 1070 (1999).

      Our harmless error analysis should not focus on the propriety of the

outcome of the trial; instead, we should calculate as much as possible the

probable impact on the jury in light of the existence of other evidence. Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944

(2001). We “should take into account any and every circumstance apparent in

the record that logically informs an appellate determination whether ‘beyond a

reasonable doubt [that particular] error did not contribute to the conviction or

punishment,’” and if applicable, we may consider the nature of the error, the

extent that it was emphasized by the State, its probable collateral implications,

and the weight a juror would probably place on the error. Snowden v. State, 353

S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). This

requires us to evaluate the entire record in a neutral, impartial, and even-handed

manner, not “in the light most favorable to the prosecution.” Harris v. State, 790


Fort Worth, 2005, no pet.) (same); see also Tex. Code Crim. Proc. Ann. art.
38.22, § 6 (requiring specific fact findings by trial court when question of
voluntariness of statement raised); Vasquez v. State, 411 S.W.3d 918, 920 (Tex.
Crim. App. 2013) (mandating abatement to trial court for findings on
voluntariness when issue raised at trial).


                                        19
S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds

by Snowden, 353 S.W.3d at 821–22.

      The statements at issue here were handwritten by Murkledove on

photographs of three separate houses. On State’s Exhibit 9, Murkledove wrote

that the assault rifle was left at the house in the photograph, the lock box was

broken open there, and that Jones may have given some purses to his

grandmother who lives there. On State’s Exhibit 10, Murkledove wrote that the

house in the photograph belonged to Jones’s mother and was where Murkledove

had last seen the tire rims and the rest of the purses; Murkledove also wrote that

the murder weapon “might be a couple houses down under the mattress or in his

car.” Murkledove wrote on State’s Exhibit 11 that the house in the photograph

was possibly where Jones traded the TV and Xbox for marijuana and money.

      After making the complained-of written statements on the photographs,

Murkledove gave a detailed written statement, in which he stated that he

discussed breaking into Garner’s house with Jones the night before Garner’s

murder, that he arranged transportation to Garner’s house the following day so

that he and Jones could steal Garner’s property, that Jones brought a gun with

him and said that if Garner was there, he would have to kill him, and that

Murkledove entered the house with Jones and stole property from inside after

Jones shot and killed Garner. In that statement, admitted as State’s Exhibit 8A,

Murkledove also explained that after the break-in, they hid the stolen rifle and

opened the lockbox of pills at Jones’s grandmother’s house, they sold the TV at


                                       20
another house, and Jones took the murder weapon home with him. Murkledove

stated that Jones usually kept his gun in his house, which is down the street from

his grandmother’s house, or in his car.       Murkledove does not challenge the

admissibility of that statement on appeal.5

      The handwritten statements on the photographs of the houses tended to

corroborate the most compelling evidence of the State’s case—Murkledove’s

written statement admitted as State’s Exhibit 8A.       But other unobjected-to

evidence at trial also showed that Murkledove directed police to three houses

and, upon execution of search warrants on those houses, corroborated

Murkledove’s written statement about the location of the stolen property. See

Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (“It is well

established that the improper admission of evidence does not constitute

reversible error if the same facts are shown by other evidence which is not

challenged.”) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App.

1978)). At trial, Detective Shane Drake with the Fort Worth Police Department

testified without objection that he and another detective drove Murkledove by

three houses pointed out by Murkledove and later prepared search warrants for

those houses. Execution of those warrants revealed some of the items stolen

from Garner’s house.

      5
       Murkledove also made several other written and oral statements prior to
making the written statements on State’s Exhibits 9, 10, and 11 in which he
admitted involvement in the break-in of Garner’s house; he does not challenge
the admissibility of those statements on appeal.


                                        21
      We cannot say that the admission of State’s Exhibits 9, 10, and 11 moved

the jury from a state of nonpersuasion to one of persuasion as to Murkledove’s

guilt for the offense of capital murder. See Wesbrook, 29 S.W.3d at 119; see

also Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (stating that

factors to consider in harm analysis are how important the evidence was to

State’s case, whether evidence was cumulative of other evidence, and whether

other evidence corroborated complained-of evidence on material points). Thus,

assuming error and performing a harm analysis under rule 44.2(a), we hold

beyond a reasonable doubt that any error did not contribute to Murkledove’s

conviction.6 See Tex. R. App. P. 44.2(a).

      We overrule Murkledove’s ninth point.

                     VI. LIFE WITHOUT PAROLE PUNISHMENT

      In his tenth point, Murkledove argues that his mandatory life sentence

without parole constitutes cruel and unusual punishment under both the United

States and Texas constitutions because he had just turned eighteen two months




      6
        Because we hold that any error was harmless under the heightened
standard of rule 44.2(a), we need not analyze whether any error in admitting
those same statements in violation of code of criminal procedure article 38.22
violated Murkledove’s substantial rights under rule 44.2(b). See Tex. R. App. P.
44.2(b), 47.1; see also Woods v. State, 152 S.W.3d 105, 118 (Tex. Crim. App.
2004) (stating that the erroneous admission of an appellant’s statement in
violation of article 38.22 amounts to nonconstitutional error), cert. denied, 544
U.S. 1050 (2005).


                                       22
before the offense and because he was convicted as a party to, not the

perpetrator of, capital murder.7

      The Supreme Court has held that a mandatory life sentence without the

possibility of parole for defendants under the age of eighteen at the time of their

crimes violates the Eighth Amendment’s prohibition of cruel and unusual

punishment.    Miller v. Alabama, 132 S. Ct. 2455, 2463, 2469 (2012).           But

Murkledove had turned eighteen two months prior to Garner’s murder so Miller

does not apply here. Murkledove was subject to Texas’s statutorily-mandated

sentence of life without parole, which applies to individuals who commit offenses

when they are eighteen years of age or older.        See Tex. Penal Code Ann.

§ 12.31(a)(2); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2013).

      Additionally, although the Supreme Court has held that the Eighth

Amendment encompasses an individualized sentencing doctrine that precludes

mandatory sentencing in cases in which the death penalty is sought, that is not

the case for non-death-penalty sentencing, even life without parole.          See

Harmelin v. Michigan, 501 U.S. 957, 994–95, 111 S. Ct. 2680, 2701–02 (1991).

Texas courts have consistently held that the mandatory life sentence required

under section 12.31(a) of the penal code and article 37.071, section 1 of the code

of criminal procedure is not unconstitutional as cruel and unusual punishment

under the Eighth Amendment and article I, section 13 of the Texas constitution.

      7
      Murkledove filed a pretrial motion on this issue, which the trial court
denied, and raised the issue in his amended motion for new trial.


                                        23
Cienfuegos v. State, 113 S.W.3d 481, 495 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d) (collecting cases); see Slater v. State, No. 02-11-00368-CR, 2013 WL

2631194, at *6 (Tex. App.—Fort Worth June 13, 2013) (mem. op., not designated

for publication), pet. ref’d, 408 S.W.3d 876 (Tex. Crim. App. 2013). This is true

when the defendant has been convicted of capital murder under the theory of

party liability set forth in penal code section 7.02(b). Battle v. State, 348 S.W.3d

29, 31 (Tex. App.—Houston [14th Dist.] 2011, no pet.); Cienfuegos, 113 S.W.3d

at 496. As we have previously stated, “It is well settled that a mandatory life

sentence for the offense of capital murder is not unconstitutional.” Barnes v.

State, 56 S.W.3d 221, 239 (Tex. App.—Fort Worth 2001, pet. ref’d), abrogation

on other grounds recognized by Hurd v. State, 322 S.W.3d 787, 793 n.5 (Tex.

App.—Fort Worth 2010, no pet.).

      Because Murkledove committed the offense after he turned eighteen years

of age and because a mandatory life sentence for capital murder is not

unconstitutional, we overrule Murkledove’s tenth point.

                                 VII. CONCLUSION

      Having overruled Murkledove’s ten points on appeal, we affirm the trial

court’s judgment.




                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE



                                        24
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: May 15, 2014




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