                                                                             ACCEPTED
                                                                         03-14-00586-CR
                                                                                 5089156
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    4/29/2015 4:18:44 PM
                                                                       JEFFREY D. KYLE
                No. 03-14-00586-CR                                                CLERK


                  IN THE
            COURT OF APPEALS                            FILED IN
      FOR THE THIRD JUDICIAL DISTRICT            3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                 OF TEXAS                        4/30/2015 11:49:00 AM
                                                     JEFFREY D. KYLE
                                                          Clerk
              TERRELL MAXWELL,
                   Appellant

                          v.

                 The State of Texas,
                      Appellee

   On Appeal In Case Number D-1-DC-08-300490
From the 331st Judicial District Court of Travis County
       The Hon. David Crain, Judge Presiding

                      Brief on Appeal


                    Submitted by:

            The Law Offices of Jon Evans
                806 West 11th Street
                Austin, Texas 78701
                 Tel. 512/476-4075
                 Fax: 512/477-6840
                 jontevans@aol.com

                      Jon Evans
               State Bar No. 00787445

            Attorney for Terrell Maxwell

             Oral Argument Requested
                        Table of Contents

Identities of Parties and Counsel…………………………………………………………iii-iv

Table of Contents………………………………………………………………………… ii

Index of Authorities………………………………………………………………………..vi

Preliminary Statement of the Case…………………………………………………………vii

Issues Presented/Points of Error……………………………………………………………ix

Statement of Facts………………………………………………………………………11

Summary of Arguments……………………………………………………………………

    Issue Number One                                       23



Prayer……………………………………………………………………………………..33

Certificate of Service……………………………………………………………………….34

Word Count Certification…………………………………………………………………35




                               ii
                                  Identity of Parties

      Pursuant to Rule 38.1, Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following

is a complete list of the names and addresses of all parties to the trial court’s final judgment

and their counsel in the trial court, as well as appellate counsel, so that the members of the

court may at once determine whether they are disqualified to serve or should recuse

themselves from participating in the decision of the case, and so the Clerk of the Court may

properly notify the parties to the trial court’s final judgment or their counsel, if any, of the

judgment and all orders of the Court of Appeals.




Identity of Parties and Counsel

TERRELL MAXWELL, Appellant, Robertson Unit, 12071 FM 3522, Abilene, Texas
79601

Jon T. Evans, Attorney for Appellant on Habeas Corpus, 806 W. 11th St., Austin, Texas,
78701, Austin, Texas 78701, phone 512.476.4075, fax 512.477.6840, email:
jontevans@aol.com

Jon T. Evans, Attorney for Appellant at Trial, 806 W. 11th St., Austin, Texas, 78701,
Austin, Texas 78701, phone 512.476.4075, fax 512.477.6840, email: jontevans@aol.com

Jon T. Evans, Attorney for Appellant on Appeal, 806 W. 11th St., Austin, Texas, 78701,
Austin, Texas 78701, phone 512.476.4075, fax 512.477.6840, email: jontevans@aol.com

Rosemary Lehmberg, Travis County District Attorney, Attorney for State of Texas, PO
Box 1768, Austin, Texas 78767, phone 512.854.9400

Scott Taliaferro, Travis County Assistant District Attorney, Attorney for State of Texas
on Appeal and Habeas Corpus, PO Box 1768, Austin, Texas 78767, phone 512.854.9400


                                               iii
Lisa Stewart, Travis County Assistant District Attorney, Attorney for State of Texas on
Appeal and Habeas Corpus, PO Box 1768, Austin, Texas 78767, phone 512.854.9400

Amy Meredith, Travis County Assistant District Attorney, Attorney for State of Texas
at Trial, PO Box 1768, Austin, Texas 78767, phone 512.854.9400

Marianne Powers, Travis County Assistant District Attorney, Attorney for State of
Texas at Trial, PO Box 1768, Austin, Texas 78767, phone 512.854.9400

Hon. Bob Perkins, Retired Judge of the 331st Judicial District Court, PO Box 1768,
Austin, Texas 78767, phone 512.854.9443

Hon. David Crain, Presiding Judge of the 331st Judicial District Court, PO Box 1768,
Austin, Texas 78767, phone 512.854.9443




                                          iv
                                 Index of Authorities


Federal Cases:

Ex parte Henderson, 645 S.W.2d 469 (Tex. Crim. App. 1983)   26

Graham v. Florida, 560 U.S. 48 (2010)                       24

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979)     25, 29

Johnson v. Wells, 566 F.2d 1016 (5th Cir. 1978)             27, 31

Long v. Briscoe, 568 F.2d 1119 (5th Cir. 1978)              27, 31

Miller v. Alabama, 132 S. Ct. 2455 (2012)                   passim

Roper v. Simmons, 543 U.S. 551 (2005)                       29


Constitution

U.S. Const. Amend. VIII                                     31, 32

U.S. Const. Amend. XIV                                      31, 32




                                            v
Statutes and Rules


37 Adm. Code § 145.2              27

37 Adm. Code § 145.3              29

Tex. Gov. Code § 498.003          25, 26

Tex. Gov. Code § 508.141          27

Tex. Gov. Code § 508.144          27

Tex. Gov. Code § 508.149          25

Texas Penal Code § 8.07           30

Texas Penal Code § 12.31          iii, 22, 23

Texas R. App. Pro. § 38.01        vii, ix, 10




                             vi
   Preliminary Statement of the Case and Procedural History

      Pursuant to Tex.R.App.Pro. 38.1, the following is a brief general statement of the

nature of the cause or offense: Appellant, Terrell Maxwell, was charged by indictment with

the offenses of Capital Murder, a capital felony, and Aggravated Robbery, a first degree

felony in Cause Number D-1-DC-08-300490, in the 331st Judicial District Court of Travis

County, Texas. Terrell Maxwell proceeded to trial by jury and was convicted of the offense

of Capital Murder in said cause on December 11, 2008. On that same date of December 11,

2008, Terrell Maxwell was sentenced by the court to the mandatory sentence of Life in the

Institutional Division of the Texas Department of Criminal Justice without the possibility of

parole and a $0 fine. Notice of Appeal was timely given on December 29, 2008.

             On November 12, 2010, the Third Court of Appeals affirmed the judgment and

sentence of the trial court. See Exhibit 2; Maxwell v. State, No. 03-09-00027-CR (Tex. App.

Austin, November 12, 2010) (not designated for publication).

             Appellant filed a pro se Application for Writ of Habeas Corpus under Article 11

of the Texas Code of Criminal Procedure. In this original Application, Appellant raised

numerous claims. Counsel filed an amendment to this application alleging Miller v. Alabama

grounds, that the Appellant was only 17 at the time a life sentence without the possibility of

parole was assessed.




                                             vii
             On February 6, 2013, the Court of Criminal Appeals ordered that the parties

submit briefs as to whether or not the United States Supreme Court decision in Miller v.

Alabama should be applied retroactively, and what remedy would be appropriate.

             On March 19, 2014, the Court of Criminal Appeals decided that the Appellant’s

case should be returned to the trial court for re-sentencing, and the mandate was affirmed on

April 16, 2014.

             The State of Texas, by and through the Travis County District Attorney’s Office,

decided not to seek a sentence of life without the possibility of parole, and instead asked the

trial court to assess a sentence automatically for life with the possibility of parole.

             Over Appellant’s objections, the Court automatically assessed a life sentence

with the possibility of parole on August 8, 2014.

             Appellant filed a motion for new trial and notice of appeal Sept. 11, 2014.




                                              viii
                            Issues Presented/Points of Error

      Pursuant to Tex.R.App.Pro. 38.1, the following are the points upon which this appeal is

predicated:

Issue Number One—

Pursuant to the holding of the United States Supreme
Court in Miller v. Alabama, 132 S. Ct. 2455 (2012), even a sentence of
life with the possibility of parole after 40 calendar years for a juvenile
violates the Eighth Amendment of the United States Constitution
because: (1) Appellant was a juvenile at the time of the offense and this
fact is “relevant to the Eighth Amendment,” (2) the Eighth
Amendment requires trial courts to consider youth as a mitigating
factor when sentencing a juvenile to life in prison, and (3) in Texas, a
sentence of life in prison with the possibility of parole after 40 years
amounts to a de facto life sentence. As a result, Appellant is entitled
to a new trial.




                                             ix
                                   No. 03-14-00586-CR

                                    IN THE
                              COURT OF APPEALS
                        FOR THE THIRD JUDICIAL DISTRICT
                                   OF TEXAS


                                    Terrell Maxwell,
                                       Appellant

                                             v.

                                   The State of Texas,
                                        Appellee

                  On Appeal From Cause Number D-1-DC-08-300490
              From the 331st Judicial District Court of Travis County, Texas
                         The Hon. David Crain, Judge Presiding

                                     Brief on Appeal



TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

   COMES NOW, TERRELL MAXWELL, Appellant in the above styled and numbered

cause, by and through Jon Evans, undersigned attorney of record, and respectfully files this

“Brief on Appeal,” filed pursuant to Tex.R.App.Pro. 38.1, and would show the Court as

follows:




                                            10
                         Statement of Facts Relevant to Appeal

      The Appellant, Terrell Maxwell, was charged in this cause with Capital Murder, a

capital felony on February 26, 2008. (C.R.I: 03-07). The Appellant was arrested for this

offense on February 28, 2008. (C.R.I: 10-11). The Defendant was indicted for one count of

Capital Murder and a second count of Aggravated Robbery that occurred on or about

December 15, 2007. (C.R.I: 18-000020). The Defendant was appointed counsel Jon Evans on

March 3, 2008. (C.R.I: 16).

      The Defendant was arraigned on a plea of not guilty to the offense of Capital Murder

on December 8, 2008. (C.R.: 000104-105; R.R.III: 6). The State of Texas waived the second

count of the indictment of Aggravated Robbery on December 8, 2008. (R.R.III: 6-7). The

Defendant entered a plea of not guilty (R.R.IV: 5). The Appellant was tried on the issue of

guilt/innocence by a jury on December 8-11, 2008.

      Austin Police Department Officer Ronald Ruiz was dispatched to 1620 Rutland

Boulevard, which was an apartment complex, in the early morning hours on December 15,

2007. (R.R. IV: 12). Officer Ruiz encountered two Hispanic men in the parking lot who

directed him to a van parked there. (R.R. IV: 14-15). The dispatch had been for a shooting in

a van. (R.R. IV: 15). Officer Ruiz found a man in a van with no pulse, who, due to his

apparent injuries, was obviously dead. (R.R. IV: 16). Officer Ruiz testified that the people




                                             11
who had called the police had said they had found the man in this state in the van. (R.R. IV:

21).

       The next witness, Juan Garcia Nieto, testified that a man named Fernando Santander

had worked for him. (R.R. IV: 29). Nieto said that Fernando Santander drove a white van that

Nieto owned while Santander worked for him. (R.R. IV: 30). Nieto told the jury that he had

last seen Santander on the night of December 14, 2007, and that Santander was alive at the

time. (R.R. IV: 32). On December 15, 2007, Nieto received a call from the Austin Police

Department to come to the apartment complex on Rutland Avenue. (R.R. IV: 32). Nieto

testified that upon arrival he saw Santander dead in his van (R.R. IV: 33), and said he

recognized Santander because he had been wearing the same shirt earlier in the evening.

(R.R. IV: 34).

       Austin Police Department Detective Mark Gilchrest testified that he coordinated some

witness interviews (R.R. IV: 29), as well as the taking of photos of the crime scene. (R.R. IV:

46). Police Department personnel recovered a bullet fragment in the parking lot of the

apartment complex. (R.R. IV: 47). Detective Gilchrest testified that the physical evidence

from the scene indicated that the shooter had been standing between the door of the van and

the car door opening when Santander was shot in the head. (R.R. IV: 57-58). The

identification of Santander was recovered from his person along with $369. (R.R. IV: 71).

Detective Gilchrest opined that this was a “contact wound,” (R.R. IV: 81), and that the wound

was consistent with the shooter having been slightly lower than the position of the victim.


                                              12
(R.R. IV: 83). Detective Gilchrest stated that the lead core that was recovered was consistent

with a larger caliber firearm. (R.R. IV: 91). All areas of the van were dusted for fingerprints.

(R.R. IV: 91). However, Detective Gilchrest did admit that no one conducted tests with

knitting rods, sticks or other means to determine the actual trajectory of the gunshot. (R.R.

IV: 103).

      Austin Police Department Detective Kerry Scanlon testified that the victim was

formally identified as Fernando Santander. (R.R. IV: 115). He testified that after having no

leads for some time after the death of Santander, a tip came in on the case on January 20,

2008. (R.R. IV: 121). The tipster supposedly used to date one of the suspect’s mothers, and

proceeded to give three names. (R.R. IV: 123). The tipster gave nicknames which lead to the

suspects Rashad Dukes, Michael Jamerson and Terrell Maxwell. (R.R. IV: 125). Scanlon met

with the tipster and showed him a photo lineup that included Rashad Dukes. (R.R. IV: 126).

The officers lined up an opportunity to detain all three suspects at the same time. (R.R. IV:

127). Tiffany Kyles, the girlfriend of Michael Jamerson, was interviewed, as was Tawanna

Eaglin, the girlfriend of Rashad Dukes, as was Sharyda Jamerson, the girlfriend of the

Appellant Terrell Maxwell (Sharyda Jamerson was also the sister of Michael Jamerson).

(R.R. IV: 130). The officers were not successful in interviewing the Appellant Maxwell.

(R.R. IV: 131). There was information that a Blue Geo Prizm, which was used by Michael

and Sharyda Jamerson, might be involved in this offense. (R.R. IV: 131). Inside of the Geo

Prizm, a box of .44 caliber ammunition was found, (R.R. IV: 135), and twelve (12) rounds


                                              13
were found to be missing from the box. (R.R. IV: 136). Also, inside of the Geo Prizm, a

possible blood stain was located. (R.R. IV: 134). Officer Scanlon requested both DNA and

fingerprint testing of the bullets found in the car, as well as fingerprinting of the victim’s van.

(R.R. IV: 136-137). Officer Scanlon stated that the Appellant is shorter than his co-

defendants, Dukes and Jamerson. (R.R. IV: 138). Officer Scanlon also requested that a

section of the dashboard of the Geo Prizm be cut out so that DNA testing could be conducted

on the stain. (R.R. IV: 145).

       Israel Tovar Terrazas testified that he was a roommate of the victim Fernando

Santander, (R.R. IV: 157), and that he last saw him alive on the night of December 14, 2007.

(R.R. IV: 158-159). Terrazas stated that he arrived home at around 5:20 A.M. and saw a van

parked in the parking lot that was still turned on, and that Fernando was in the van. (R.R. IV:

160-161). Terrazas went and retrieved his other roommate David from inside of their

apartment. (R.R. IV: 164). They could see that Santander was shot in the head. (R.R. IV:

166). Terrazas called 911. (R.R. IV: 169).

       Michael Jamerson testified that he grew up with Rashad Dukes, and that he met the

Appellant in Middle School. (R.R. IV: 186). He testified that he lived with this sister, Sharyda

Jamerson, the Appellant, Rashad Dukes, Tawanna Eaglin, and Tiffany Kyles on Golden

Meadow Street. (R.R. IV: 188-189). On the night of December 14, 2007, he said that they

were all in the apartment they shard, smoking (marijuana) and watching a movie. (R.R. IV:

189). He said that they decided to “go hit a lick,” to get some money, around 1 or 2 A.M., and


                                                14
said that “it was Rashad and Terrell’s idea.” (R.R. IV: 190). Jamerson said that their intent

was to rob a dope (drug) dealer. (R.R. IV: 191). Jamerson further stated that he was driving,

that the Appellant was the passenger and that Rashad was behind him. (R.R. IV: 192).

Jamerson said that the Appellant “had a big revolver.” (R.R. IV: 192). Jamerson said that the

Appellant gave directions to go to the apartment complex with dope dealers and Mexicans.

(R.R. IV: 194). Michael Jamerson testified that he backed into a parking spot. (R.R. IV: 195).

Jamerson also said that the Appellant told them that “if the dude didn’t give him the money,

he was going to bust,” and that “bust” (in this context) meant “to shoot.” (R.R. IV: 196).

Jamerson further stated that the Appellant and Dukes got out of the car first and started

walking around the apartment complex, and that he saw the gun drawn and the Appellant

standing in the driver’s doorway of the van. (R.R. IV: 197-199). Jamerson said that the

Appellant had the gun pointed towards the victim’s head, Dukes was on the passenger side,

and that Jamerson walked up next to the Appellant. (R.R. IV: 200-201). Jamerson said that

when he walked up, the gun went off, and that he had not heard any words exchanged

beforehand. (R.R.IV: 201). Jamerson testified that “stuff” got on him, and that they took off

running, (R.R.IV: 202), and that they went back to the apartment. (R.R.IV: 206). When they

arrived back at the apartment, Jamerson went to the sliding glass door to the bedroom and had

his girlfriend wake up and let him into the apartment, and that he went to the front door to let

in Dukes and the Appellant, after which they all began to curse, yell and scream. (R.R.IV:

207). According to Jamerson, the Appellant said he didn’t mean to do this and that it was an


                                              15
accident. (R.R.IV: 208). According to Jamerson, he gave the Appellant his clothes, and got

into the shower with his girlfriend Tiffany Kyles. (R.R.IV: 208). Jamerson reported that he

broke down while in the shower with Kyles, and that when he got out, the Appellant had left,

with Dukes telling him that the Appellant had taken a taxi. (R.R.IV: 209). According to

Jamerson, his sister, Sharyda Jamerson was not present that night. (R.R.IV: 220). Jamerson

admitted that upon first being questioned by the police, he told several lies. (R.R.IV: 225-

226). Jamerson testified that the Appellant had said it was an accident and that he didn’t mean

to do it. (R.R.V: 13-14). Jamerson said that didn’t know if Dukes intended it. (R.R.V: 14).

Jamerson testified that he was familiar with .44 caliber ammunition (R.R.V: 14) and that the

Appellant had a “cowboy looking” gun. (R.R.V: 28). Jamerson related that he was on Texas

Youth Commission parole for aggravated assault with a deadly weapon. (R.R.V: 25).

Jamerson did not know what happened to the gun. (R.R.V: 34), and he related that he

believed it was an accident. (R.R.V: 36). Jamerson then changed his testimony to say that

looking back he can’t say it was an accident that night (R.R.V: 37), but that the Appellant said

it was an accident (R.R.V: 39), as he was crying and saying he was sorry. (R.R.V: 40).

      Lafayette Davis was cab driver on duty on December 15, 2007, and he was called to

pick up a fare named Jonathan around 3 A.M. He did not remember anything about the person

nor could identify the person. (R.R.VI: 109-112).

      James Bixler, an Austin Police Department crime scene specialist testified, as did

William Welch, another senior crime scene specialist from the Austin police Department.


                                              16
Also Pat Bui, who at the time of the offense was an Austin police Department crime scene

specialist, testified.

        Dr. David Dolinak, the Medical Examiner for Travis County, Texas, testified that the

wound to Fernando Santander was a contact gunshot wound (R.R.VI: 169), that Santander

died as the result of the gunshot wound, and that the cause of death was homicide. (R.R.VI:

180-181).

        Cassie Carridine, DNA examiner for the Austin Police Department, testified that the

Appellant was excluded as a contributor to the DNA found on the ammunition. (R.R.VI:

197).

        Charles Parker, fingerprint examiner for the Austin Police Department, testified that

fingerprints were lifted from the decedent’s van (R.R.VI: 205-206), but that there was no

match of the Appellant. (R.R.VI: 212).



        Tiffany Kyles testified that she was dating Michael Jamerson and living in an

apartment on Golden Meadow with Jamerson, Rashad Dukes, Tawanna Eaglin, Sharyda

Jamerson and the Appellant for a total of about 2 ½ months, (which included the night in

question). (R.R.VI: 53). Kyles had been smoking pot with Tawanna Eaglin and was high.

(R.R.VI: 54). Jamerson had a concert that night. (R.R.VI: 55). Kyles woke up to some loud

banging, and she had no idea what time it was, and Jamerson was crying. (R.R.VI: 55-56).

She says “I know he was talking to the Appellant.” (R.R.VI: 56). Kyles had no idea what


                                              17
happened to Jamerson’s clothes. (R.R.VI: 59). Jamerson told her that they were going to rob

someone. (R.R.VI: 60, 75-76). Kyles testified that the Appellant carried a “cowboy gun”.

(R.R.VI: 6). Kyles said that she had seen the Appellant put the gun on top of the refrigerator

“a week or two, I’m not sure” before the incident, and that everybody knew where the gun

was (R.R.VI: 7). Kyles said she had seen the Appellant with a “cowboy gun” prior to the

incident. (Note: she did not give a time frame). (R.R.VI: 13).

      Rashad Dukes testified that he met both the Appellant and Jamerson a long time ago

when they were in school together, (R.R.VI: 22-23), and that they hooked back up together

when Dukes got out of the Texas Youth Commission. (R.R.VI: 24). Dukes said they were all

hanging out at the apartment when they decided to go rob someone. (R.R.VI: 29). Dukes said

Jamerson was driving, the Appellant was the front passenger and Dukes was in back.

(R.R.VI: 30). Dukes said they spotted a man in a van, and that the Appellant had a little pistol,

(R.R.VI: 31), and it was like a “cowboy gun,” (R.R.VI: 32), a revolver. (R.R.VI: 35). Dukes

admitted to lying to the police. (R.R.VI: 36). Dukes testified that the Appellant had said that

the next person who doesn’t give him their money he is going to shoot. (R.R.VI: 37).

According to Dukes, the plan was that Dukes was actually going to take the money. (R.R.VI:

37).Dukes said he heard the Appellant say to the man to give him his money and then heard a

shot and that the man had been shot in the head. (R.R.VI: 42-44). According to Dukes, the

appellant said it was an accident (R.R.VI: 45), and that he was going to call a cab. (R.R.VI:

51). Dukes admitted to telling many lies to the police in order to keep himself and Jamerson


                                               18
out of trouble. (R.R.VI: 59-61). Dukes testified that he thinks the Appellant meant to do it.

(R.R.VI: 75). Dukes also said that the Appellant supposedly sold the gun. (R.R.VI: 75).

Dukes admitted to previously telling his girlfriend Tawana Eaglin that the gunshot was

accidental. (R.R.VI: 78).

      Tawanna Eaglin testified that she dated Rashad (Dukes), and that she knew Jamerson

through Rashad (Dukes). (R.R.VI: 80-81). On the night of the incident, Eaglin testified that

she was at the apartment, watching movies, listening to music and “chilling.” (R.R.VI: 84-

85). She stated that the three men left, and she didn’t know where they were going or for how

long they were to be gone. (R.R.VI: 85). Later, she was awakened by Dukes, who had her

come into the living room. (R.R.VI: 86-87). Dukes told her they tried to rob “a Mexican

dude,” the gun went off, and the guy was shot. (R.R.VI: 88). Dukes told her that the

Appellant had the gun and it went off accidentally. (R.R.VI: 89). Eaglin never saw the

Appellant with a gun. (R.R.VI: 91). Eaglin testified that she saw the Appellant earlier in the

evening but did not when Dukes and Jamerson returned to the apartment. (R.R.VI: 98-100).

She stated, “He wasn’t there.” (R.R.VI: 101).

      Travis County District Attorney’s Investigator Anthony Johnson testified regarding the

efforts undertaken to attempt to gain service and attendance at trial of two witnesses, Shryda

Jamerson and Juan Gonzalez (R.R.VII: 7-17). Also, Austin Police Department Officer Jeff

Crawford testified regarding his efforts to find the witness Juan Gonzalez. (R.R.VII: 21).




                                             19
      Greg Karim, the firearms and tool mark examiner for the Austin Police Department

testified. (R.R.VII: 24). Karim said that the slug found in the parking lot/ scene of the crime,

was consistent with a .44 caliber slug, and that the .44 caliber ammunition found is consistent

with the slug found. (R.R.VII: 59). Karim said that no firearm was ever submitted to him,

(R.R.VII: 60), and that he cannot tell amount of pressure used to fire the gun, nor can he

determine who fired the gun. (R.R.VII: 61).

      Outside of the presence of the jury a long discussion was held regarding an extraneous

offense which the State wished to put on. Defense Counsel objected on Texas Rules of

Evidence grounds, T.R.E. 401, 403 and 404 (b), as well as on grounds that the extraneous was

too remote in time as to be relevant. Counsel’s objections were overruled and a running

objection was granted as to the testimony of the next two witnesses. (R.R.VII: 62-72).

      Anthony Lovingood testified that on December 9, 2007, Rashad Dukes showed up at

his apartment. (R.R.VII: 75). Lovingood went on to describe a robbery, and identified the

Appellant as being one of the two men involved. (R.R.VII: 77-89). Rachel Sullivan testified

as to the same events of December 9, 2007, describing waking up to loud noises, seeing a

person she knew as Rashad Dukes, and detailing a robbery. (R.R.VII: 99-105). (It should be

noted that she did not describe a gun.)

      The Defendant, Terrell Maxwell, chose not to testify (R.R. VII: 117-118).

      The jury found the Appellant, Terrell Maxwell, guilty of Capital Murder as alleged in

the indictment. (R.R.VII: 165).


                                              20
      The Defendant had elected for the jury to assess punishment (C.R.I: 101-102). At the

sentencing phase of the trial, the Court imposed an automatic life sentence without parole for

the Defendant, Terrell Maxwell, (as the State could not seek the death penalty under the law,

as the Defendant was 17 at the time of the incident) (R.R.VII: 168).

      The Appellant filed his Notice of Appeal on December 29, 2008, (C.R.I: 135-137) and

the Court certified his right to appeal. (C.R.I:142-143).

       On November 12, 2010, the Third Court of Appeals affirmed the judgment and

sentence of the trial court. See Exhibit 2; Maxwell v. State, No. 03-09-00027-CR (Tex. App.

Austin, November 12, 2010) (not designated for publication).

      Appellant filed a pro se Application for Writ of Habeas Corpus under Article 11 of the

Texas Code of Criminal Procedure. In this original Application, Appellant raised numerous

claims. Counsel filed an amendment to this application alleging Miller v. Alabama grounds,

that the Appellant was only 17 at the time a life sentence without the possibility of parole was

assessed.

      On February 6, 2013, the Court of Criminal Appeals ordered that the parties submit

briefs as to whether or not the United States Supreme Court decision in Miller v. Alabama

should be applied retroactively, and what remedy would be appropriate.

      On March 19, 2014, the Court of Criminal Appeals decided that the Appellant’s case

should be returned to the trial court for re-sentencing, and the mandate was affirmed on April

16, 2014.


                                              21
      At the time of re-sentencing, the State of Texas, by and through the Travis County

District Attorney’s Office, decided not to seek a sentence of life without the possibility of

parole, and instead asked the trial court to assess a sentence automatically for life with the

possibility of parole. (C.R.Supp.5).

      Over Appellant’s objections, the Court automatically assessed a life sentence

with the possibility of parole on August 8, 2014. (C.R.Supp.9).

      Counsel’s objections were based on the points that (1) there is no appropriate

sentencing scheme for a person 17 years of age charge with capital murder when that capital

murder occurred between 2005 and 2013, pursuant to Tex.Pen.Code 12.31; (2) A life

sentence even with the possibility of parole after 40 years constitutes a cruel and unusual

punishment for a 17 year old pursuant to the 8th Amendment to the United States Constitution

and in violation of Miller v. Alabama; (C.R.Supp. 4-9)




                                             22
                                   ISSUE NUMBER ONE


With regard to a proposed remedy regarding appropriate punishment, pursuant to
the holding of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455
(2012), even a sentence of life with the possibility of parole after 40 calendar years
for a juvenile violates the Eighth Amendment of the United States Constitution
because: (1) Appellant was a juvenile at the time of the offense and this fact is
“relevant to the Eighth Amendment,” (2) the Eighth Amendment requires trial
courts to consider youth as a mitigating factor when sentencing a juvenile to life in
prison, and (3) in Texas, a sentence of life in prison with the possibility of parole
after 40 years amounts to a de facto life sentence. As a result, in light of this State’s
system and its failure to consider the mitigating factors set forth in Miller v.
Alabama, the Appellant is entitled to a new punishment hearing with a structure
that does take into account the mitigating factors addressed in Miller v. Alabama.


1. Legal Argument
A. Introduction
      Miller v. Alabama invalidated Texas Penal Code § 12.31(a)(2).
      The Appellant contends that any sentencing scheme for juveniles that takes
sentencing discretion away from juries and the courts violates the holding of Miller
v. Alabama. Such a scheme, even if it purports to make parole possible after 40
calendar years, fails to consider the “three significant gaps between juveniles and
adults” that the Supreme Court has identified in Miller v. Alabama: that (1) juveniles
have a “‘lack of maturity and an underdeveloped sense of responsibility,’” leading to
recklessness, impulsivity, and heedless risk-taking; (2) juveniles are “more
vulnerable…to negative influences and outside pressures,” including from family
and peers, have limited “control over their own environment,” and “lack the ability
to extricate themselves from horrific, crime-producing settings,” and (3) a child’s
character is not as “well-formed” as an adult’s, his traits are “less fixed,” and his

                                           23
actions less likely to be “evidence of irretrievabl[e] deprav[ity].” See Miller v.
Alabama, Id. at 2458.
      Such a “one-size-fits-all” sentencing scheme of juveniles convicted of serious
offenses also “..precludes consideration of [the juvenile’s] chronological age and its
hallmark features--among them, immaturity, impetuosity, and failure to appreciate
risks and consequences. It prevents taking into account the family and home
environment that surrounds him--and from which he cannot usually extricate
himself--no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his participation in the conduct and the
way familial and peer pressures may have affected him. Indeed, it ignores that he
might have been charged and convicted of a lesser offense if not for incompetencies
associated with youth--for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys. See, e.g., Graham v. Florida, 130 S. Ct. at 2032. As a result, as the
following analysis will show, the sentencing of juveniles should be left to the
discretion of juries and the courts, as juries and the courts are best-positioned to
consider the individual circumstances and maturity level of the juvenile.




B. The Texas Board of Pardons and Paroles is under no obligation to release
Appellant and others situated like him after 40 calendar years or at any time
thereafter.


      Merely because Appellant may become eligible for parole after serving 40
calendar years does not guarantee that the parole board will grant parole. The Texas
Board of Pardons and Paroles has the sole discretion to grant parole after Appellant

                                            24
becomes eligible for parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7-8
(1979) (Because parole is discretionary, a state inmate has no constitutional
entitlement to due process on an expectation of parole).
      Further, Appellant is not eligible for mandatory release supervision. Because
there was a deadly weapon finding in his conviction, See Exhibit 1, (CR, 132),
Appellant is permanently ineligible for release on mandatory supervision. Tex. Gov.
Code § 508.149(a). As a result, Appellant must be either released on regular parole
on or after serving 40 calendar years, or must simply serve his entire sentence, which
means Appellant will die in prison. Id.


C. There is effectively no difference between the mandatory sentencing scheme
struck down in Miller v. Alabama and a sentencing scheme of automatic life in prison
with the possibility of parole after 40 years.


      The only difference between the mandatory sentencing scheme such as Texas
Penal Code § 12.31(a)(2), which was struck down in Miller v. Alabama, and a
mandatory sentencing scheme where a juvenile is automatically sentenced to life in
prison with the possibility of parole after 40 calendar years is simply that the
juvenile is eligible for parole consideration after 40 calendar years. This remote
possibility of parole does not remedy the unconstitutionality of a sentencing scheme
under which a juvenile may be condemned to life in prison without any judicial
consideration of the mitigating effects of youth. Further, as explained above, the
Texas Board of Pardons and Paroles is under no obligation to release the child no
matter what evidence is presented 40 years later, and such a parole board hearing
does not protect a juvenile against the type of cruel and unusual punishment in the
way a jury or court must due to the ruling in Miller v. Alabama.

                                           25
      The parole system in Texas does not require the Board of Pardons and Paroles
to consider Appellant’s age at the time of the offense as a mitigating factor. Nor does
the system in Texas require the Board to consider any of the other factors listed
in Miller v. Alabama, which include the extent of his or her culpability, the
juvenile’s capacity for change, the circumstances of the crime, extent of the
juvenile’s participation in the crime, the juvenile’s environment in which he or she
grew up, including those of his or her family, home, and his or her neighborhood,
the juvenile’s emotional maturity and development, criminal history, peer pressure,
any history of drugs or alcohol, the juvenile’s mental health history, and any
potential for rehabilitation. See Miller v. Alabama, Id. at 2458.
      Rather, Appellant will be reviewed by the Board at age 57, when the weight of
the evidence of the Miller factors may be diminished or simply unavailable. First,
aside from never being eligible for mandatory release supervision, Appellant is not
eligible for any good-conduct time. Normally, the director of the prison institution
may grant good conduct time to an inmate who accrues good time on the following
basis: twenty days for each 30 days actually served while classified as a Class I
inmate or a trusty, and ten days for each 30 days actually served while classified as a
Class II inmate. Tex. Gov. Code. § 498.003(b). The problem for inmates such as
Appellant is that good-conduct time does not reduce his sentence, but merely applies
only to eligibility for parole or mandatory release supervision. Tex. Gov. Code. §
498.003(a); Ex parte Henderson, 645 S.W.2d 469, 472 (Tex. Crim. App. 1983).
Because Appellant is not eligible for mandatory release supervision or even parole
until he serves 40 calendar years, there is no such thing as good-conduct time
accruing for Appellant.
      Next, before recommending parole, the Parole Panel, representing the Board

                                           26
of Pardons and Paroles Division, must be satisfied that Appellant will not only
support himself, outside prison but will also fulfill the obligations of a law-abiding
citizen. Tex. Gov. Code § 508.141(e). The Board is authorized to release Appellant
only if it determines that Appellant’s release is in the best interest of society. Tex.
Gov. Code § 508.141(f).
      Other than these speculative and vague standards, the only statutory rule
concerning the criteria for granting parole is that the Board must develop and
implement “standard parole guidelines” for making parole decisions. Tex. Gov.
Code § 508.144(a). Despite this statue, the Board’s rules permit “complete
discretion” to grant or deny parole. See 37 Adm. Code § 145.2(a). Standard, but
nonexclusive, criteria on which parole decisions are made include the inmate’s
current offense or offenses, the amount of time the inmate has served and his
institutional adjustment, and the inmate’s criminal history 37 Adm. C. § 145.2(b)(2).


      And the primary factor considered by the Board in making parole decisions is
the inmate’s prior criminal record. See 37 Adm. C. § 145.2(b)(2)(E); Long v. Briscoe,
568 F.2d 1119, 1120 (5th Cir. 1978); Johnson v. Wells, 566 F.2d 1016, 1017-1018 (5th
Cir. 1978). In fact, the 2012 Parole Guidelines Annual Report of the Texas Board of
Pardons and Paroles makes clear that when calculating the risk assessment of a
potential parolee, Capital Murder causes the highest score in the offense severity
class. See Exhibit 8, page 6, Annual Report, which can also be found at:
http://www.tdcj.state.tx.us/bpp/publications/FY%202012_ParoleGuidelinesAR.pdf
In fact, as the Annual Report shows, none of the Miller v. Alabama factors are
relevant to the Parole Board’s consideration of a juvenile.
      Page 6 of the Annual Report (See Exhibit 8) clearly shows that the “Static


                                            27
Factors” used by the Parole Board, which come from the inmate’s prior criminal
record and do not change over time, are the inmate’s age at first commitment to a
juvenile or adult correctional facility, history of supervisory release revocations for
felony offenses, prior incarcerations, employment history, and the commitment
offense. When the commitment offense is Capital Murder, which causes the highest
score in the offense severity class, the “Static Factor” in considering the risk
assessment is going to be astronomically high.
      Next, the “Dynamic Factors” used by the Parole Board (See Exhibit 8, page 6),
reflect characteristics the inmate has demonstrated since being incarcerated, and
may change over time. These dynamic factors include the inmate’s current age,
whether he is a “confirmed security threat group (gang) member,” he education, his
vocational and certified on-the-job training programs completed during the present
incarceration, his prison disciplinary conduct, and his current prison custody level.
      As the Parole Guidelines Score chart shows (See Exhibit 8, page 7), Capital
Murder will cause the highest guideline level score. And during the last fiscal year,
those in Appellant’s guideline level were approved at a rate of 13%, with 109 cases
approved for parole out of 841 cases considered. See Exhibit 8, page 8. And this
13% includes all types of cases that create the highest guideline level score, and not
just Capital Murder.
      Other than this criteria, the Board may also consider the inmate’s personality,
the adequacy of the inmate’s proposed release plan, his attitude toward the future
and ability to earn a living outside of prison, his family status and whether there are
family members and others in the community with whom the prisoner will be able to
form constructive associations, the type of residence and community in which the
prisoner intends to live, his history of excessive use of alcohol or narcotics, his mental

                                           28
and physical condition, his conduct in prison, and “any other factors that the Board
may consider relevant to a particular case.” See 37 Adm. C. § 145.3(2); 37 Adm. C.
§ 145.2(b); See also Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 11-18.
      Missing from these parole requirements is any requirement that an inmate’s
juvenile status at the time of the crime, even if considered, must be deemed
mitigating. In Roper, 543 U.S. at 573, the Supreme Court opined that this problem
may be addressed by implementing rules designed to guarantee that the jury or
court give proper effect to “the mitigating force of youth.” Id.
      Miller v. Alabama puts in place a rule addressing the Eighth Amendment issue,
requiring those deciding a juvenile’s sentence “to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” 132 S. Ct. at 2469; 2467-2468 (Age must be treated as a
mitigating factor “when a juvenile confronts a sentence of life and death in prison).
      Also missing from the criteria and factors used by the Parole Board are any of
the factors listed in Miller v. Alabama, which include the extent of his or her
culpability, the juvenile’s capacity for change, the circumstances of the crime, extent
of the juvenile’s participation in the crime, the juvenile’s environment in which he or
she grew up, including those of his or her family, home, and his or her
neighborhood, the juvenile’s emotional maturity and development, criminal history,
peer pressure, any history of drugs or alcohol, the juvenile’s mental health history,
and any potential for rehabilitation. See Miller v. Alabama, Id. at 2458.
      It is clear from Miller v. Alabama that the timing of the required discretionary,
individualized, youth-specific consideration is constitutionally significant. 132 S.Ct.
at 2474. As a result, a determination of these factors approximately 40 years after
the date of sentence will not substitute for judicial discretion at the sentencing

                                           29
hearing, which occurs immediately following conviction.
      The Supreme Court held that even judicial discretion at the transfer stage
could not rescue the constitutionality of a statutory scheme imposing automatic life
imprisonment on juveniles: “the question at transfer hearings may differ
dramatically from the issue at a posttrial sentencing. Because many juvenile systems
require that the offender be released at a particular age or after a certain number of
years, transfer decisions often present a choice between extremes: light punishment
as a child or standard sentencing as an adult (here, life without parole).” 132 S.Ct.
at 2474. The Supreme Court pointed out that many States use mandatory transfer
systems, and a juvenile of a certain age who has committed a specified offense will be
tried in adult court, regardless of any individualized circumstances. Id. In Texas, a
juvenile who is 17 years of age is considered an “adult” for all purposes pertaining to
the Texas Penal Code. Tex. Pen. Code § 8.07. The Supreme Court also showed that
numerous states allow the decision of whether to transfer a juvenile under the age of
17 exclusively in the hands of prosecutors, with no statutory mechanism for judicial
reevaluation. Miller, Id. at 2474.
      In addition, the Supreme Court noted that “although later mental evaluation
as an adult affords some semblance of procedural due process, it is, in effect, too
little, too late,” in the context of disapproval that defendant was not granted funds
for a mental health expert for his transfer hearing. Id. at 2462 n.3.
      Finally, the Parole Board members are not members of the judicial branch,
and sentencing is solely a judicial function. Miller v. Alabama made it clear that
those “meting out punishment” must consider a juvenile’s “lessened culpability” and
greater capacity for change.” Id. at 2460. While a jury or trial court under the
Miller v. Alabama rule must consider all the factors listed by the Supreme Court,

                                           30
which include the extent of his or her culpability, the juvenile’s capacity for change,
the circumstances of the crime, extent of the juvenile’s participation in the crime, the
juvenile’s environment in which he or she grew up, including those of his or her
family, home, and his or her neighborhood, the juvenile’s emotional maturity and
development, criminal history, peer pressure, any history of drugs or alcohol, the
juvenile’s mental health history, and any potential for rehabilitation, See Miller v.
Alabama, Id. at 2458, the Texas Board of Pardons and Paroles, as an extension of the
Texas governor’s office, has only one real consideration: whether the inmate’s
release will endanger the public. And because one of the primary criteria considered
by the Board in making parole decisions is the inmate’s prior criminal record, See 37
Adm. C. § 145.2(b)(2)(E); Long v. Briscoe, 568 F.2d at 1120; Johnson v. Wells, 566
F.2d at 1017-1018, when the inmate is in prison for Capital Murder, it is not overly
speculative to conclude that there is effectively no difference between the mandatory
sentencing scheme struck down in Miller and a sentencing scheme of automatic life
in prison with the possibility of parole after 40 years.
      As a result, a mandatory life sentence that leaves the possibility of release after
40 years solely in the hands of the Board cannot satisfy the absolute prohibition on
“making youth and all that accompanies it irrelevant to the imposition of that
harshest prison sentence.” Id. at 2469.      The Texas Board of Pardons and Paroles
has no prohibition as what Miller v. Alabama imposes upon courts, and even if there
was such a prohibition, because the decision to parole an inmate is at the sole
discretion of the Parole Board, there is no judicial mechanism for the prohibition’s
enforcement. Therefore, a mandatory life sentence that leaves the possibility of
release after 40 years under such a scheme is a de facto life sentence and would
continue to be a violation of the Appellant’s rights pursuant to the both the 8th and

                                           31
14th amendments to the United States Constitution.


In cases where the court imposes a sentence of life imprisonment, a numeric value is
necessary to include these cases in any sentence length analysis. Accordingly, life
sentences are reported as 470 months, a length consistent with the average life
expectancy of federal criminal offenders given the average age of federal offenders.
Also, sentences of greater than 470 months are also reported as 470 months for some
analyses. The footnote in the relevant tables and figures indicates when this occurs.
United States v. Nelson


2. Conclusion
      Pursuant to the holding in Miller v. Alabama, even a sentence of life with the
possibility of parole after 40 calendar years for a juvenile violates the Eighth
Amendment of the United States Constitution because: (1) Appellant was a juvenile
at the time of the offense and this fact is “relevant to the Eighth Amendment,” (2)
the Eighth Amendment requires trial courts to consider youth as a mitigating factor
when sentencing a juvenile to life in prison, and (3) in Texas, a sentence of life in
prison with the possibility of parole after 40 years amounts to a de facto life sentence.


      As a result, Appellant prays that this court grant the relief requested, and
that a new trial be held.




                                            32
                                            Prayer

       WHEREFORE, PREMISES CONSIDERED, TERRELL MAXWELL, Appellant in

the above styled and numbered cause respectfully prays that this Court find his sentence as

well as his conviction to be in error, and that this Court reverse his conviction and remand to

the trial court for a new trial. The Appellant prays for all other general relief to which he may

be entitled.

                                         Respectfully submitted,

                                         JON EVANS
                                         Attorney at Law
                                         806 W. 11TH ST.
                                         Austin, Texas 78701
                                         Tel. 512/476-4075
                                         Fax: 512/477-6840


                                     by:
                                        /S/ JON EVANS
                                        JON EVANS
                                        State Bar No. 00787445

                                         Attorney for TERRELL MAXWELL

                           Statement Regarding Oral Argument

                                Oral Argument is Requested.




                                               33
                                   Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing “Appellant’s

Brief on Appeal” was hand-delivered to the office of the District Attorney of Travis County,

Texas; and to Appellant at the address listed in the Certificate of Parties, on the 28th day of

April, 2015.


                                        /s/ JON EVANS ……………………………………

                                        JON EVANS




                                              34
WORD COUNT CERTIFICATION



    I DO HEREBY CERTIFY THAT THE WORD COUNT FOR THIS DOCUMENT IS
EXACTLY 7635 WORDS.

                               /s/ Jon Evans__________________________.
                               JON EVANS
