Affirmed as Reformed and Memorandum Opinion filed June 27, 2013.




                                           In The

                             Fourteenth Court of Appeals


                                   NO. 14-12-00394-CR


                         ERRON KEITH NOLLEY, Appellant
                                              V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 185th District Court
                               Harris County, Texas
                        Trial Court Cause No. 13056722010


                    MEMORANDUM                         OPINION

      A jury convicted Erron Keith Nolley of capital murder,1 and the trial court
assessed his punishment at life imprisonment without the possibility of parole.
Appellant challenges his conviction and sentence; he contends that (1) his sentence
is invalid under state and federal law; (2) imposition of an automatic life sentence
is constitutionally impermissible because it deprives the sentencer of hearing any


      1
          See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2012).
individualized factors or mitigation; and (3) the State impermissibly shifted the
burden of proof during its closing argument.

                                         Background

      On July 27, 2010, appellant and others took part in a robbery. The victims
of the robbery were Luis Gonzales, his 15-year-old cousin Larry Ayala, and
Larry’s 15-year-old friend Albert Cardenas. Albert was shot and killed during the
robbery.

      Appellant was charged with capital murder. He was 16 years old at the time
of the offense.    A juvenile district court waived its original jurisdiction and
transferred the case to the criminal district court.     At the beginning of trial,
appellant was told that if he was convicted of capital murder, he would have to
serve 40 years before being eligible for parole.

      During trial, Larry Ayala identified appellant as Albert’s shooter. One of the
other robbers, Chester Mosley, testified at trial that appellant told him he shot
Albert during the robbery. Witness Elijah McFarland also testified at trial that
appellant told him he had shot Albert.

      The jury found appellant guilty of capital murder. Immediately after the
verdict on April 19, 2012, the trial court assessed appellant’s “punishment at life in
the institutional division of the Texas Department of Criminal Justice.” The trial
court did not mention eligibility for parole. The court signed a judgment on April
19, 2012, reflecting appellant’s sentence to be “life without parole.” Appellant did
not file a motion for new trial. Appellant filed a timely appeal.

                                      Analysis

I.    Punishment

      In his first issue, appellant argues that his sentence for life imprisonment
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without the possibility of parole violates Texas and federal law. Appellant argues
that, as a juvenile, his punishment must be life imprisonment with the possibility of
parole as required by section 12.31 of the Texas Penal Code2 and Miller v.
Alabama, 132 S. Ct. 2455, 2469 (2012).

      Effective September 1, 2009, the Legislature amended section 12.31(a) of
the Texas Penal Code to provide that “[a]n individual adjudged guilty of a capital
felony in a case in which the state does not seek the death penalty shall be
punished by imprisonment in the Texas Department of Criminal Justice for: (1)
life, if the individual’s case was transferred to the court under Section 54.02, Texas
Family Code, or (2) life without parole.” Lewis v. State, 07-11-00444-CR, 2013
WL 2360146, at *12 (Tex. App.—Amarillo May 29, 2013, no. pet. h.) (op. on
reh’g). Therefore, section 12.31(a)(1) of the Texas Penal Code requires a juvenile
defendant, who is certified as an adult and convicted of capital murder, to be
sentenced to life imprisonment if the State does not seek the death penalty. See
Tex. Penal Code Ann. § 12.31(a)(1) (Vernon 2011).

      Appellant committed the offense on July 27, 2010. Appellant was born on
November 12, 1993; thus, he was 16 years old at the time he committed the
offense. A juvenile district court waived its original jurisdiction and transferred
the case to the criminal district court under section 54.02 of the Family Code3 on
May 9, 2011. The State did not seek the death penalty for the capital murder
charge against appellant. After the jury found appellant guilty of capital murder on
April 19, 2012, the trial court immediately pronounced “punishment at life in the
institutional division of the Texas Department of Criminal Justice.” The trial
court’s April 19, 2012 judgment reflects that appellant was sentenced to life

      2
          See Tex. Penal Code Ann. § 12.31 (Vernon 2011).
      3
          See Tex. Fam. Code Ann. § 54.02 (Vernon Supp. 2012).

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imprisonment without the possibility of parole.        Appellant should have been
sentenced to “life” as required by section 12.31(a)(1) of the Texas Penal Code. See
Tex. Penal Code Ann. § 12.31(a).

       Additionally, the United States Supreme Court held that the “Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Miller, 132 S. Ct. at 2469. Pursuant
to the Supreme Court’s holding in Miller, appellant’s sentence of life without
parole should be reformed to a sentence of life imprisonment. See Tex. R. App. P.
43.2; Lewis v. State, 2013 WL 2360146 at *13 (court of appeals reformed juvenile
appellant’s sentence of life without parole to a sentence of life imprisonment
pursuant to Miller); see also Salinas v. State, 163 S.W.3d 734, 743 (Tex. Crim.
App. 2005) (Texas Court of Criminal Appeals reformed juvenile appellant’s death
sentence to a sentence of life imprisonment pursuant to Roper v. Simmons, 543
U.S. 551, 578 (2005)). In its brief, the “State concurs that the judgment should be
reformed to correct the clerical error and reflect that appellant is subject to review
for parole . . . .”

       We sustain appellant’s first issue.

       Appellant contends in his second issue that even if we reform his sentence, a
mandatory sentence of life imprisonment with the possibility of parole for
juveniles is nonetheless unconstitutional under Miller because it precludes the
sentencer from “hearing any individualized factors or mitigation.”

       Section 12.31(a)(1) of the Texas Penal Code requires a juvenile defendant,
whose case was transferred to criminal court under section 54.02 of the Family
Code and who was convicted of capital murder, to be sentenced to life
imprisonment if the State does not seek the death penalty. See Tex. Penal Code
Ann. § 12.31(a)(1).      Statutes are presumed to be constitutional until it is
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determined otherwise. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App.
2009).

      Further, the Supreme Court in Miller held narrowly that the Eighth
Amendment forbids a sentencing scheme mandating life imprisonment without the
possibility of parole for juveniles. Miller, 132 S. Ct. at 2469. The Court stated that
“a judge or jury must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles. By requiring that all
children convicted of homicide receive lifetime incarceration without possibility of
parole, regardless of their age and age-related characteristics and the nature of their
crimes, the mandatory sentencing schemes before us violate th[e] principle of
proportionality, and so the Eighth Amendment’s ban on cruel and unusual
punishment.” Id. at 2475.

      The Court narrowly tailored its holding to mandatory sentences of life
imprisonment without the possibility of parole for juveniles. Id. at 2469. The
Supreme Court did not categorically foreclose a sentencer’s ability to impose a
judgment of life imprisonment on a juvenile without the possibility of parole in
homicide cases, nor did it require that mitigating circumstances be considered for a
sentence less severe than life without the possibility of parole as applied to a
juvenile. See id. at 2475.

      We conclude that Miller does not support appellant’s argument that a
mandatory sentence of life imprisonment with the possibility of parole is
constitutionally impermissible under Miller.

      Accordingly, we overrule appellant’s second issue.

II.   Closing Argument

      In his third issue, appellant contends that the State impermissibly attempted

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to shift the burden of proof to the defense “four times” during its closing argument
at the guilt-innocence phase of the trial, and that the trial court sustained his
objection to the State’s argument “only two times.”        Appellant points to the
following statements as being improper jury argument:

      [THE STATE]: . . . . Well, where is the evidence of that? Where is
      the testimony that the defense certainly could have put on, that they
      were never there that evening at their house. Where is their mother or
      father to testify, well, I don’t know where they were then. I didn’t see
      them around. They certainly could put that testimony on.
      [DEFENSE COUNSEL]: Excuse me, Your Honor. I object to that.
      We have no burden in this case.
      THE COURT: Sustained.
      [DEFENSE COUNSEL]: I object to counsel trying to transfer the
      burden over to the defendant.
      THE COURT: I sustained your objection, counsel.
      [THE STATE]: Well, ladies and gentlemen, yes, they don’t have the
      burden but they certainly can put on any evidence they want to.
      [DEFENSE COUNSEL]: Objection, Your Honor, We have no
      burden, we don’t have to put on any evidence.
      THE COURT: I sustained the objection.
                     *                   *                  *
      [THE STATE]: . . . You know, the defense also, I agree, doesn’t have
      to put any defense on, doesn’t have to put any witnesses on but they
      certainly can put on any alibi witnesses if they want to.
      [DEFENSE COUNSEL]: Excuse me, Your Honor. Objection.
      THE COURT: I’m sorry. I did not hear.
      [DEFENSE COUNSEL]: He’s still putting the burden on the defense,
      telling us we can put on witnesses, we can put on evidence.
      [THE STATE]: Alibi witnesses, Judge.
      THE COURT: I’m sorry?
      [THE STATE]: Alibi witnesses.


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      THE COURT: Overruled.
      [THE STATE]: Ladies and gentlemen, if Erron Nolley wasn’t there,
      they certainly have the right to call and subpoena and bring in
      witnesses who say, no, he wasn’t there. He was with me that night —
      that day.
      [DEFENSE COUNSEL]: Your Honor, I object to any line of
      questioning, response, argument by counsel requiring the defense to
      put on any witnesses.
      THE COURT: Overruled.
       [THE STATE]: I’m not saying that they have to, ladies and
      gentlemen. What I’m saying is they have the right to do so. And
      certainly the absence of any alibi witnesses can be considered by you-
      all —
      [DEFENSE COUNSEL]: Objection, Your Honor, to counsel’s
      argument, still talking about the defense having to put on witnesses.
      THE COURT: Overruled.
      [THE STATE]: It’s something that you can consider. If he wasn’t
      there, where was he? What was he doing? Who was he with? You
      don’t have any evidence of that.
      You know, something else the defense brings up is that this is kind of
      — they really haven’t proved which murder weapon it was that did it.
Appellant argues that the State’s remarks do not fall within the four permissible
areas of jury argument and that he was harmed by the State’s “repeated
misstatement of the burden of proof and argument that [he] needed to present
evidence.”

      Proper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3)
answer to argument of opposing counsel; and (4) plea for law enforcement. Brown
v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Error exists when facts not
supported by the record are interjected in the argument, but such error is not
reversible unless, in light of the record, the argument is extreme or manifestly

                                        7
improper. Id.

      With regard to the first remark the State made, the trial court sustained
appellant’s objections; and appellant failed to preserve any alleged error. In order
to preserve jury argument error for appellate review, the defendant must (1) make
an objection; (2) request an instruction to disregard; and (3) make a motion for a
mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). After the
trial court sustained the objection, appellant did not ask for an instruction to
disregard or move for a mistrial. It is well settled that when appellant has been
given all the relief he requested at trial, there is nothing to complain of on appeal.
Id. With regard to the first argument, appellant failed to preserve any alleged error.
See id.

      With regard to the remaining remarks made by the State, the trial court
overruled appellant’s objections. We conclude the State’s remarks did not shift the
burden of proof to the defense and did not constitute improper jury argument.

      A prosecutor may not use final argument to invite the jury to speculate about
matters that are outside of or unsupported by the record. See Borjan v. State, 787
S.W.2d 53, 57 (Tex. Crim. App. 1990). A prosecutor is permitted to argue logical
inferences that arise from a party’s failure to produce evidence that is shown to
exist. Sanders v. State, 74 S.W.3d 171, 173 (Tex. App.—Texarkana 2002, pet.
ref’d). A prosecutor may properly comment on a defendant’s failure to produce
evidence, as long as the remarks do not fault the defendant for failing to testify.
See Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000); Patrick v. State,
906 S.W.2d 481, 491 (Tex. Crim. App. 1995). We look at the challenged language
from the jury’s standpoint and determine whether the comment “was manifestly
intended or was of such a character that the jury would necessarily and naturally
take it as a comment on the defendant’s failure to testify.” Bustamante v. State, 48

                                          8
S.W.3d 761, 765 (Tex. Crim. App. 2001). Reversal is not required where the
language can be reasonably construed as referring to a defendant’s failure to
produce testimony or evidence from sources other than himself. Livingston v.
State, 739 S.W.2d 311, 338 (Tex. Crim. App. 1987).

      The remarks appellant challenges on appeal were made in rebuttal to the
defense closing argument. In response to appellant’s closing argument implying
that appellant was not present during the offense, the State argued that “if
[appellant] wasn’t there, [appellant] certainly ha[s] the right to call and subpoena
and bring in witnesses who say, no, he wasn’t there. He was with me that night —
that day.” The State stated that appellant does not have to call any witnesses, but
has “the right to do so.” The State remarked that the jury may consider the absence
of alibi witnesses and consider if appellant “wasn’t there, where was he? What
was he doing? Who was he with?”

      In Caron v. State, 162 S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.]
2006, no pet.), this court reviewed an objection made to a prosecutor’s statement
that “[i]f there is something out there that is going to exonerate you, you want to
make it known.” We rejected appellant’s argument that the prosecutor improperly
shifted the burden of proof to the defense and reasoned: “During the jury
argument, the State may comment on appellant’s failure to present evidence in his
favor.” Id. As in Caron, the State’s remarks about appellant’s right to call
witnesses regarding his whereabouts at the time of the offense constituted
permissible argument and did not shift the burden of proof to appellant. See id.;
see also Sanders v. State, 74 S.W.3d at 173 (prosecutor’s remark that “the defense
could have subpoenaed [alibi witness] to testify if in fact he had been the one
driving, and the defense had failed to do so” was permissible jury argument).

      Accordingly, we overrule appellant’s third issue.

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                                     Conclusion

       We reform the trial court’s judgment to delete the reference to “without
parole,” and to reflect a sentence of life imprisonment in conformity with section
12.31(a)(1) of the Texas Penal Code. In all other respects, we affirm the judgment
of the trial court.




                               /s/     William J. Boyce
                                       Justice




Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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