                                                                                 ACCEPTED
                                                                             03-14-00586-CR
                                                                                     7174343
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        9/30/2015 4:24:26 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                           NO. 03-14-00586-CR
                       IN THE COURT OF APPEALS
                            THIRD DISTRICT                   FILED IN
                                                      3rd COURT OF APPEALS
                            AUSTIN, TEXAS                 AUSTIN, TEXAS
                                                      9/30/2015 4:24:26 PM
                         TERRELL MAXWELL,               JEFFREY D. KYLE
                            APPELLANT                         Clerk


                                  VS.

                        THE STATE OF TEXAS,
                             APPELLEE


             APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
                        TRAVIS COUNTY, TEXAS
                   CAUSE NUMBER D-1-DC-08-300490
                      HON. DAVID CRAIN, PRESIDING


                           STATE’S BRIEF


ROSEMARY LEHMBERG
DISTRICT ATTORNEY
TRAVIS COUNTY, TEXAS

M. SCOTT TALIAFERRO
TEXAS BAR NO. 00785584
ASSISTANT DISTRICT ATTORNEY
DIRECTOR, APPELLATE DIVISION
DISTRICT ATTORNEY’S OFFICE
P.O. BOX 1748
AUSTIN, TEXAS 78767
PHONE: 512.854.3626 FAX: 512.854.4810
EMAIL: scott.taliaferro@traviscountytx.gov
       AND AppellateTCDA@traviscountytx.gov

    THE STATE CONDITIONALLY REQUESTS ORAL ARGUMENT


                                   i
                                        TABLE OF CONTENTS




TABLE OF CONTENTS....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iii
STATEMENT REGARDING ORAL ARGUMENT ............................................. v
STATEMENT OF THE CASE .............................................................................. v
STATEMENT OF FACTS .................................................................................... 3
SUMMARY OF THE ARGUMENTS................................................................... 4
THE STATE’S REPLY TO THE FIRST POINT OF ERROR............................... 5
     THE PUNISHMENT SCHEME UNDERLYING THE APPELLANT ’S LIFE
     SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT............................... 5
     1.      Nature of the appellant’s claim .................................................... 5
     2.      The applicable statutory scheme .................................................. 7
        a.   The 2005 version of the statute .................................................... 7
        b.   The 2013 version of the statute .................................................... 8
        c.   It is not clear which version of the statute was applied on
              remand......................................................................................... 9
     3.      Standard governing appellate review ..........................................12
     4.      The mandatory nature of the punishment scheme does not
              render it unconstitutional as applied to the appellant...................13
     5.      Miller should be applied only to sentences that literally
              preclude parole ...........................................................................17
        a.   By its terms, Miller merely applies to sentences of life
              without parole.............................................................................18
        b.   To extend Miller, this Court would be required to assess the
              probability of parole, not merely its possibility...........................19
        c.   Assessing the probability of parole is a speculative
              undertaking that should not be performed by this Court..............22
     6.      If the Court does perform a probability analysis, it should
              find that the appellant’s sentence is not a de facto sentence
              of life without parole ..................................................................28
     7.      Conclusion..................................................................................31

PRAYER ..............................................................................................................32
CERTIFICATE OF COMPLIANCE.....................................................................32
CERTIFICATE OF SERVICE..............................................................................33

                                                          ii
                                        TABLE OF AUTHORITIES
         Cases
Andrade v. State, 700 S.W.2d 585 (Tex. Crim. App. 1985) (Teague, J., concurring)
   ..........................................................................................................................22
Bear Cloud v. State, 2014 WY 113, 334 P.3d 132 (2014) ...............................19, 24
Boneshirt v. United States, No. CIV 13-3008-RAL, 2014 U.S. Dist. LEXIS 161922
  (D.S.D. Nov. 19, 2014)......................................................................................30
Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012) .......................................................19
Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286 (Pa. 2013)..............................19
Commonwealth v. Brown, 466 Mass. 676, 1 N.E.3d 259 (Mass. 2013) .................19
Ellmaker v. State, 329 P.3d 1253 (Kan. App. 2014) (not designated for publication)
   ....................................................................................................................29, 30
Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) ....................13, 26, 31
Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. 2014)......................ix, 3, 9, 11
Ex parte Ragston, 402 S.W.3d 472 (Tex. App.—Houston [14th Dist.] 2013) .......12
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).passim
Hankins v. State, 132 S.W.3d 380 (Tex. Crim. App. 2004) ...................................26
Henry v. State, 82 So.3d 1084 (Fla. App. 2012) ....................................................19
Henry v. State, No. 05-14-00197-CR, 2015 Tex. App. LEXIS 7151 (Tex. App.—
  Dallas July 10, 2015) (not designated for publication).......................................16
LeBlanc v. Mathena, 2015 U.S. Dist. LEXIS 86090 (E.D. Va. July 1, 2015) ........24
Lewis v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014) ................................passim
Lewis v. State, 448 S.W.3d 138 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
   ..........................................................................................................................15
Leza v. State, 351 S.W.3d 344 (Tex. Crim. App. 2011).........................................23
Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).......................passim
Ouk v. State, 847 N.W.2d 698 (Minn. 2014) ...................................................19, 30
People v. Caballero, 55 Cal. 4th 262, 145 Cal. Rptr. 3d 286, 282 P.3d 291 (2012)
   ....................................................................................................................23, 31
People v. Mendez, 188 Cal. App. 4th 47 (Cal. App. 2010) ....................................23
People v. Perez, 214 Cal. App. 4th 49, 154 Cal. Rptr. 3d 114 (Cal. App. 2013)...22,
  30
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) .......6, 22
Santikos v. State, 836 S.W.2d 631 (Tex. Crim. App. 1992)...................................12
State ex rel. Lykos v. Fine, 330 S.W.3d 904 (Tex. Crim. App. 2011) ....................13
State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004) ...............................26
State v. Null, 836 N.W.2d 41 (Iowa 2013) ......................................................22, 24
State v. Ragland, 836 N.W.2d 107 (Iowa 2013) ....................................................23
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) ...................................12

                                                              iii
State v. Vang, 847 N.W.2d 248 (Minn. 2014) .................................................18, 30
Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981)................................23
Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014) (per curiam) .....15, 16, 27
Whitehead v. State, 130 S.W.3d 866 (Tex. Crim. App. 2004) ...............................23
Wilson v. State, No. 14-14-00015-CR, 2015 Tex. App. LEXIS 3818 (Tex. App.—
  Houston [14th Dist.] Apr. 16, 2015) (not designated for publication) ................16
Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000)...........................................26
      Statutes
Tex. Code Crim. Proc. art. 37.071.......................................................................... 8
Tex. Code Crim. Proc. art. 42.02...........................................................................26
Tex. Fam. Code § 51.02......................................................................................... 6
Tex. Gov't Code § 311.032 ...................................................................................10
Tex. Gov't Code § 498.003 ...................................................................................25
Tex. Gov't Code § 508.145 .............................................................................17, 25
Tex. Penal Code § 19.03 ........................................................................................ 7
Tex. Penal Code § 12.31 ................................................................................passim
     Other Authority
George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and
 Procedure § 55:48 (3rd ed. 2011).......................................................................23
      Rule
Tex. R. App. P. 38.1 .............................................................................................26
      Constitutional Provision
U.S. CONST., AMEND. VIII ..................................................................................... 5




                                                        iv
              STATEMENT REGARDING ORAL ARGUMENT

      Undersigned counsel for the State believes that oral argument is unnecessary

because the briefs filed by the parties adequately present the facts and legal

arguments. However, if the Court does grant the appellant’s request for oral

argument, the State respectfully requests that the Court also permit the State to

provide oral argument.


                          STATEMENT OF THE CASE

      On December 15, 2007—at the age of 17—the appellant shot and killed

Fernando Santander during the course of a robbery. The appellant was charged by

indictment with capital murder and aggravated robbery. The State did not seek the

death penalty. On December 11, 2008, a jury found the appellant guilty of capital

murder. 7 RR 165. On that same date, the trial court automatically assessed the

appellant’s punishment at imprisonment for life without parole. 7 RR 168. See

Tex. Penal Code § 12.31(a)(2).

      The instant appeal is the appellant’s second direct appeal. On his first direct

appeal, the appellant’s conviction and sentence were affirmed by this Court. See

Maxwell v. State, No. 03-09-00027-CR, 2010 Tex. App. LEXIS 9036 (Tex. App.—

Austin Nov. 12, 2010) (not designated for publication). The appellant’s petition



                                          v
for discretionary review was refused by the Court of Criminal Appeals, and this

Court’s mandate was issued on June 22, 2011. 1 CR 69.

      On June 25, 2012, the U.S. Supreme Court ruled, in Miller v. Alabama, that

“mandatory life without parole for those under the age of 18 at the time of their

crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual

punishments.’” Miller v. Alabama, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407

(2012).

      On October 10, 2012, the appellant sought habeas relief, citing the Miller

ruling. 1 CR 114, 120. On March 12, 2014, the Court of Criminal Appeals

granted habeas relief and vacated the appellant’s automatic sentence of life without

parole. The appellant’s case was remanded to the trial court “for further

sentencing proceedings to permit the factfinder to assess applicant’s sentence at (1)

life with the possibility of parole (as both pre-2005 and post-2013 Texas law

permits) or (2) life without parole after consideration of applicant’s individual

conduct, circumstances, and character.” Ex parte Maxwell, 424 S.W.3d 66, 76

(Tex. Crim. App. 2014); 1 CR 170.

      On August 8, 2014, the trial court assessed the appellant’s punishment at

imprisonment for life with the possibility of parole. RR 9; 1 CR 234- 36. On

September 11, 2014, the appellant filed a motion for new trial. 1 CR 240. The

appellant’s notice of appeal was filed on that same date. 1 CR 243. On October


                                          vi
21, 2014, the trial court certified that the appellant has the right of appeal in

relation to the sentence assessed on remand.1 2 CR 3.

       On May 19, 2015, the State moved to dismiss this appeal for want of

jurisdiction. As was explained in that motion, the appellant’s notice of appeal was

untimely. It appears to undersigned counsel that this Court has not yet ruled on the

State’s motion. The State’s motion to dismiss this appeal for want of jurisdiction is

incorporated herein by reference and is re-urged at this time.




       1
          The trial court’s certification of the appellant’s right of appeal does not satisfy the
requirements of Rule 25.2(d) of the Texas Rules of Appellate Procedure. That rule provides,
inter alia, as follows:

       (d) Certification of Defendant's Right of Appeal. --If the defendant is the
       appellant, the record must include the trial court's certification of the defendant's
       right of appeal under Rule 25.2(a)(2). The certification shall include a notice that
       the defendant has been informed of his rights concerning an appeal, as well as any
       right to file a pro se petition for discretionary review. This notification shall be
       signed by the defendant, with a copy given to him. The certification should be
       part of the record when notice is filed, but may be added by timely amendment or
       supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the
       appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a
       certification that shows the defendant has the right of appeal has not been made
       part of the record under these rules.

Tex. R. App. P. 25.2(d) (emphasis added). In the instant case, the notification does not purport
to bear the appellant’s signature. See 2 CR 3. For that reason, the certification does not satisfy
the requirements of Rule 25.2. Unless the appellate record is supplemented with a certification
reflecting a signed notification, this appeal “must be dismissed.” Tex. R. App. P. 25.2(d)


                                                 vii
                              NO. 03-14-00586-CR
                          IN THE COURT OF APPEALS
                               THIRD DISTRICT
                               AUSTIN, TEXAS

                             TERRELL MAXWELL,
                                APPELLANT

                                         VS.

                            THE STATE OF TEXAS,
                                 APPELLEE


                APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
                           TRAVIS COUNTY, TEXAS
                      CAUSE NUMBER D-1-DC-08-300490
                         HON. DAVID CRAIN, PRESIDING


                                 STATE’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

      The State of Texas, by and through the District Attorney for Travis County,

respectfully submits this brief in response to that of the appellant, Terrell Maxwell.




                                          2
                            STATEMENT OF FACTS

      In its opinion remanding the instant case to the trial court for further

sentencing proceedings, the Court of Criminal Appeals provided the following

factual summary:

      A jury convicted applicant of the offense of capital murder. The jury
      heard evidence that, on the night of December 15, 2007, the 17-year-
      old applicant, along with Rashad Dukes and Michael Jamerson, were
      "smoking weed and watching movies" when applicant suggested
      robbing somebody. Applicant had a revolver that was "all black"
      except for a "pearl white handle"—"kind of a cowboy-looking gun."
      They drove Jamerson's car to an apartment complex chosen "because
      that is where the dope dealers and Mexicans were." When they arrived
      at the complex, they sat in the car for several minutes. Applicant
      announced that he would shoot the person they robbed if that person
      did not give them money.

      The trio then got out of the car and approached Fernando Santander,
      who was sitting in a parked van. Applicant held his gun to Mr.
      Santander's cheek and demanded that he "give him his money."
      Visibly scared, Mr. Santander "put up his hands out of shock."
      According to Dukes, "[T]hat's when [applicant] shot him."
      Immediately thereafter, applicant and his accomplices "all took off
      running at the same time." They returned to Jamerson's car and drove
      away. Applicant told the others that "he didn't mean to do it" and that
      "it was an accident." Mr. Santander's body was discovered by friends
      early the next morning, slumped across the center console of the van.
      A .44 caliber jacket fragment was recovered from the parking lot near
      the van. A "tipster" led officers to the three suspects. Dukes and
      Jamerson confessed and testified against applicant in his capital
      murder trial.

Ex parte Maxwell, 424 S.W.3d 66, 68 (Tex. Crim. App. 2014).

      An expanded version of those facts is set forth in the opinion issued by the

Austin Court of Appeals in relation to the appellant’s first direct appeal. See
                                          3
Maxwell v. State, No. 03-09-00027-CR, 2010 Tex. App. LEXIS 9036 at *1 -*8

(Tex. App.—Austin Nov. 12, 2010) (not designated for publication).


                      SUMMARY OF THE ARGUMENTS

      In a single point of error, the appellant asserts that the statutory scheme

underlying his sentence of life with the possibility of parole is unconstitutional as

applied to him. The appellant’s claim is predicated upon Miller v. Alabama, 132 S.

Ct. 2455, 183 L. Ed. 2d 407 (2012), where the U.S. Supreme Court held that a

mandatory sentence of life without parole violates the Eighth Amendment's

prohibition on cruel and unusual punishment if the defendant was younger than age

18 when the crime was committed.

      This Court should reject the appellant’s claim. The Court of Criminal

Appeals has previously determined that the mandatory nature of that scheme does

not render it unconstitutional. Further, the Miller holding need not be, and should

not be, extended and applied to the appellant’s sentence. The statutory scheme at

issue is entitled to a presumption of constitutionality, and the appellant has failed

to rebut that presumption.




                                           4
         THE STATE’S REPLY TO THE FIRST POINT OF ERROR

      THE PUNISHMENT SCHEME UNDERLYING THE APPELLANT ’S LIFE
      SENTENCE DOES NOT VIOLATE THE EIGHTH AMENDMENT.

                                Argument and Authorities

      In his sole point of error, the appellant challenges the punishment assessed

by the trial court on remand.

   1. Nature of the appellant’s claim

      The appellant contends that the statutory scheme under which he was

sentenced is unconstitutional as applied to him. The appellant’s claim is based

upon two arguments, both of which are predicated primarily upon the holding of

the U.S. Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). In Miller, the U.S. Supreme Court held that a mandatory sentence of “life

without parole” violates the Eighth Amendment's prohibition on cruel and unusual

punishment if the defendant was younger than age 18 when the crime was

committed. 132 S. Ct. 2455, 2464.

      First, the appellant challenges the mandatory nature of the statutory scheme

under which he was sentenced. See, e.g., App. Brief at 23 (emphasizing that “any

sentencing scheme that takes sentencing discretion away from juries and the courts

violates the holding of Miller v. Alabama”). Specifically, he argues that the

provision at issue, Texas Penal Code section 12.31, is unconstitutional under



                                           5
Miller because it required the trial court to assess a life sentence2without requiring

that the court first conduct an individualized sentencing hearing to consider his age

at the time of the offense and the “‘three significant gaps between juveniles and

adults’” identified in Miller.3 App. Brief at 23, quoting Miller v. Ala., 132 S. Ct.

2455, 2464. In Miller, the Supreme Court specified the nature of those “gaps”:

       First, children have a “‘lack of maturity and an underdeveloped sense
       of responsibility,’” leading to recklessness, impulsivity, and heedless
       risk-taking. Second, children “are more vulnerable . . . to negative
       influences and outside pressures,” including from their family and
       peers; they have limited “contro[l] over their own environment” and
       lack the ability to extricate themselves from horrific, crime-producing
       settings. And third, a child's character is not as “well formed” as an
       adult’s; his traits are “less fixed” and his actions less likely to be
       “evidence of irretrievabl[e] deprav[ity].”

Miller v. Ala., 132 S. Ct. 2455, 2464, quoting Roper v. Simmons, 543 U.S. 551,

569, 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

       Second, the appellant asks this Court to extend the narrow holding of Miller

in a way that has not been sanctioned by the U.S. Supreme Court or by any

appellate court in Texas. Emphasizing that he will merely be “eligible for parole

consideration after 40 calendar years,” the appellant argues that being paroled is a


       2
         As used in this brief, the phrases “life sentence” and “life with parole” are used
interchangeably and refer to a sentence of life with the possibility of parole.
       3
         Consistent with its usage in Miller, the word “juvenile,” as used herein, indicates that
the defendants at issue were younger than age 18 when they committed their crimes. The use of
that word does not suggest that the offender at issue was a “child” within the meaning of the
Texas Juvenile Justice Code, i.e., a person who was ten years of age or older but younger than 17
years of age. See Tex. Fam. Code § 51.02(2).
                                                 6
“remote possibility” for him and that, as a consequence, “[t]here 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.” App. Brief at 25 (emphasis in original). Thus, the appellant

seeks to extend Miller, which literally addressed sentences of life without parole,

to cases involving sentences that are “de facto” sentences of life without parole.

   2. The applicable statutory scheme

       The appellant was convicted of capital murder, which is a capital felony.

See Tex. Penal Code sec. 19.03(b).

           a. The 2005 version of the statute

When the appellant’s initial sentence of life without parole was assessed on

December 11, 2008, section 12.31(a) provided, inter alia, as follows:

       § 12.31. Capital Felony
       (a) … An individual adjudged guilty of a capital felony in a case in
       which the state does not seek the death penalty shall be punished by
       imprisonment in the institutional division for life without parole.

Tex. Penal Code § 12.31(a) (2005) (emphasis added).4 This version of section

12.31(a) (which is referred to herein as “the 2005 version”) did not expressly

authorize a sentence of life with the possibility of parole.



       4
         Section 12.31 was amended in 2005 by Senate Bill 60, which added the phrase “without
parole” to the statute. See Acts 2005, 79th Leg., Ch. 787 (S.B. 60), Sec. 1, eff. September 1,
2005. That same legislation made a similar amendment to article 37.071. See Tex. Code Crim.
                                              7
           b. The 2013 version of the statute

       The language of section of 12.31(a) changed significantly before August 8,

2014, the date when the trial court, on remand, re-sentenced appellant and assessed

the sentence of life with the possibility of parole. By that time, the sentence

required by section 12.31(a) depended upon the age of the offender when the

offense was committed:

       § 12.31. Capital Felony
         (a) … An individual adjudged guilty of a capital felony in a case in
       which the state does not seek the death penalty shall be punished by
       imprisonment in the Texas Department of Criminal Justice for:
         (1) life, if the individual committed the offense when younger than
       18 years of age; or
         (2) life without parole, if the individual committed the offense
       when 18 years of age or older.

Tex. Penal Code § 12.31(a) (2013) (emphasis added). This amendment of the

statute took effect on July 22, 2013.5 This age-based distinction was added to the




Proc. art. 37.071 § 1 (2005) (“If a defendant is found guilty in a capital felony case in which the
state does not seek the death penalty, the judge shall sentence the defendant to life imprisonment
without parole”).
       5
          Section 12.31 was amended in 2013 by Senate Bill 2, which added the age-based
distinction between the authorized sentences. See Acts 2013, 83rd Leg., 2nd C.S., ch. 2 (S.B. 2),
§ 1, effective July 22, 2013. That same legislation amended article 37.071 by incorporating a
reference to section 12.31 into that article. See Tex. Code Crim. Proc. art. 37.071 § 1 (2013) (“If
a defendant is found guilty in a capital felony case in which the state does not seek the death
penalty, the judge shall sentence the defendant to life imprisonment or to life imprisonment
without parole as required by Section 12.31, Penal Code”).

                                                 8
statute in response to Miller. Ex parte Maxwell, 424 S.W.3d 66, 69 (Tex. Crim.

App. 2014).6

           c. It is not clear which version of the statute was applied on remand

       Even though the amendment of the section 12.31(a) took effect on July 22,

2013, prior to the date (August 8, 2014) when the appellant was re-sentenced, on

remand, to life with the possibility of parole, it is not clear that the latter version of

section 12.31(a) (“the 2013 version”) is the version that was applied when the

appellant’s punishment was assessed in 2014. Senate Bill 2, the legislation

promulgating the 2013 change to the statutory language of section 12.31(a),

contained the following savings clause:




       6
         In its opinion remanding the instant case to the trial court for further sentencing
proceedings, the Court of Criminal Appeals provided the following summary of the recent
changes to section 12.31(a):
       Until 2005, an individual adjudged guilty of a capital felony in a case in which the
       State did not seek the death penalty was punished by life. Tex. Penal Code §
       12.31(a) (2003). From 2005 to 2009, such an individual was punished by life
       without parole. Tex. Penal Code § 12.31(a) (2005-2007). From 2009 to 2013, the
       sentence was (1) life, if the individual's case was transferred to the district court
       under Section 54.02, Family Code; or (2) life without parole. Tex. Penal Code §
       12.31(a) (2009-2011). Section 12.31(a)—amended in response to Miller—now
       provides that "[a]n individual adjudged guilty of a capital felony in a case in
       which the state does not seek the death penalty shall be punished by imprisonment
       in the Texas Department of Criminal Justice for: (1) life, if the individual
       committed the offense when younger than 18 years of age; or (2) life without
       parole, if the individual committed the offense when 18 years of age or older."
       Tex. Penal Code § 12.31(a) (2013).

Ex parte Maxwell, 424 S.W.3d 66, 69 (Tex. Crim. App. 2014).
                                                 9
      The change in law made by this Act:
        (1) applies to a criminal action pending, on appeal, or commenced
      on or after the effective date of this Act, regardless of whether the
      criminal action is based on an offense committed before, on, or after
      that date; and
         (2) does not affect a final conviction that exists on the effective date
      of this Act.

Acts 2013, 83rd Leg., 2nd C.S., ch. 2 (S.B. 2), § 3, effective July 22, 2013

(emphasis added).

      In short, if the appellant’s conviction was already “final,” within the

meaning of this savings clause, as of July 22, 2013 (i.e., the date when the

amendment of the statute became effective), then the 2013 version could not have

been applied by the trial court when it assessed the appellant’s punishment on

remand. If the 2013 version did not apply, it appears that the trial court had

authority to apply the 2005 version of the statute, to the extent that the 2005

version remained constitutionally valid.

      The appellant asserts that Miller “invalidated Texas Penal Code §

12.31(a)(2).” App. Brief at 23. That assertion, however, is not entirely correct. In

actuality, Miller invalidated the 2005 version of section 12.31 only to the extent

that the provision authorizes the mandatory imposition of a sentence of life without

parole for an offender who committed the offense while younger than 18 years of

age. See Tex. Gov't Code § 311.032(c) (“In a statute that does not contain a

provision for severability or nonseverability, if any provision of the statute or its


                                           10
application to any person or circumstance is held invalid, the invalidity does not

affect other provisions or applications of the statute that can be given effect

without the invalid provision or application, and to this end the provisions of the

statute are severable”); Ex parte Jones, 803 S.W.2d 712 (Tex. Crim. App. 1991).

      Thus, the 2005 version of that statute is applied, in effect, by disregarding

the phrase “without parole.” Where applicable, that version therefore mandates an

automatic sentence of life with parole for an offender who committed the capital

felony while younger than 18 years of age. This is evident from the ruling of the

Court of Criminal Appeals in this very case, where the Court’s remand order

authorized the trial court to assess—without the trial court’s “consideration of

applicant's individual conduct, circumstances, and character”—a sentence of “life

with the possibility of parole.” Ex parte Maxwell, 424 S.W.3d 66, 76 (Tex. Crim.

App. 2014) (“We remand this case for further sentencing proceedings to permit the

factfinder to assess applicant's sentence at (1) life with the possibility of parole (as

both pre-2005 and post-2013 Texas law permits) or (2) life without parole after

consideration of applicant's individual conduct, circumstances, and character”).

      Although the remand order, issued on March 12, 2014, made reference to

“both pre-2005 and post-2013 Texas law,” the language used by the Court of

Criminal Appeals suggests that neither of those versions was applied here. The

“pre-2005” was not applicable because it was superseded by the 2005 version


                                           11
(which took effect on September 1, 2005). If the appellant’s conviction was

already “final,” within the meaning of the savings clause, then (as was explained

above) the 2013 version was likewise inapplicable.

       In the instant case, it makes no difference which version of section 12.31

was applied. Each version, if applied, mandated the assessment of a sentence of

life with the possibility of parole, even though the appellant was age 17 when he

murdered Mr. Santander.

    3. Standard governing appellate review

       The appellant makes an “as applied” challenge to the constitutionality of the

capital-felony sentencing statute.7 “[A]n ‘as applied’ challenge to the

constitutionality of a statute requires the challenger to demonstrate that the statute

has operated unconstitutionally when applied to his particular circumstances.



7
  The appellant’s claim does not amount to a facial challenge to the constitutionality of the
section 12.31. In a facial challenge, the appellate court must examine the statute “as it is written,
rather than how it is applied in a particular case.” State v. Rosseau, 396 S.W.3d 550, 558 (Tex.
Crim. App. 2013); cf. Ex parte Ragston, 402 S.W.3d 472, 476 (Tex. App.—Houston [14th Dist.]
2013) (distinguishing between facial challenge and as-applied challenge in context of pretrial
habeas challenge to section 12.31). Analysis of the statute's constitutionality must begin with the
presumption that the statute is valid and that the Legislature did not act arbitrarily or
unreasonably in enacting it. 396 S.W.3d 550, 558. “A facial challenge to a statute is the most
difficult challenge to mount successfully because the challenger must establish that no set of
circumstances exists under which the statute will be valid.” Santikos v. State, 836 S.W.2d 631,
633 (Tex. Crim. App. 1992). Here, the appellant’s claim is predicated upon the fact that he was
younger than 18 years of age when he committed the offense; he makes no claim that the statute
operates unconstitutionally in cases against defendants who were older than age 18 when
committing the offense of capital murder.


                                                 12
Because a statute may be valid as applied to one set of facts and invalid as applied

to another, it is incumbent upon the challenger to first show that, in its operation,

the statute is unconstitutional as to him in his situation; that it may be

unconstitutional as to others is not sufficient.” State ex rel. Lykos v. Fine, 330

S.W.3d 904, 916 (Tex. Crim. App. 2011).

      When assessing the constitutionality of a statute as applied, the appellate

court is required to presume that the statute is valid and that the Legislature did not

act unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503,

511 (Tex. Crim. App. 1978).

   4. The mandatory nature of the punishment scheme does not render it
      unconstitutional as applied to the appellant

   The appellant argues that Penal Code section 12.31is unconstitutional under

Miller, as applied to him, because the mandatory nature of that statute “precludes

consideration of [the juvenile’s] chronological age and its hallmark features….”

App. Brief at 23, quoting Miller, 132 S. Ct. 2455, 2468. He contends, inter alia,

that “any sentencing scheme that takes sentencing discretion away from juries and

the courts violates the holding of Miller v. Alabama.” App. Brief at 23. The

appellant’s argument lacks merit because the mandatory nature of the statute did

not result in a violation the Eighth Amendment’s prohibition against cruel and

unusual punishment.


                                           13
      The argument presented here has been squarely addressed by the Court of

Criminal Appeals. In Lewis v. State, 428 S.W.3d 860 (Tex. Crim. App. 2014), the

court held that, unlike a sentence of life without parole, a life sentence may

properly be assessed without a punishment hearing, even if the defendant was

younger than age 18 when he committed the capital murder. See id. at 864.

      There, the Court of Criminal Appeals considered the consolidated appeals of

two defendants, each of whom committed the offense of capital murder at age 16.

Each defendant stood trial as an adult, was convicted of capital murder, and was

automatically assessed the mandatory sentence of life without the possibility of

parole. Each defendant claimed, on direct appeal, that his sentence was

unconstitutional under Miller. In each case, the court of appeals agreed with the

Miller claim and reformed the respective defendant’s sentence to life imprisonment

with a possibility of parole. Id. at 861-63.

      Both defendants then filed petitions for discretionary review, claiming that

Miller requires individualized sentencing of juvenile offenders and that their

reformed sentences were therefore unconstitutional. The Court of Criminal

Appeals rejected those claims, specifically finding that the mandatory nature of the

statute did not run afoul of Miller:

      Miller does not forbid mandatory sentencing schemes. The mandatory
      nature of a sentencing scheme is not the aspect that precludes
      rehabilitation; rather, the sentencing scheme in Miller was
      unconstitutional because it denied juveniles convicted of murder all
                                          14
      possibility of parole, leaving them no opportunity or incentive for
      rehabilitation. Life in prison with the possibility of parole leaves a
      route for juvenile offenders to prove that they have changed while
      also assessing a punishment that the Legislature has deemed
      appropriate in light of the fact that the juvenile took someone's life
      under specified circumstances.

Lewis, 428 S.W.3d 860, 863 (emphasis added).

      Applying those principles to the claims made by the two defendants, the

court reasoned as follows:

      Appellants argue that they are entitled to individualized sentencing
      hearings before being assessed sentences of life imprisonment because
      they were juveniles at the time of their offenses. This is not what
      Miller requires. Miller does not entitle all juvenile offenders to
      individualized sentencing. It requires an individualized hearing only
      when a juvenile can be sentenced to life without the possibility of
      parole. After the reformations by the appellate courts, appellants are
      not sentenced to life without parole, and under Section 12.31 of the
      Penal Code, juvenile offenders in Texas do not now face life without
      parole at all. Therefore, appellants' cases do not fall within the scope
      of the narrow holding in Miller.

Id., 428 S.W.3d at 863-64.

      The court concluded, “Because the holding in Miller is limited to a

prohibition on mandatory life without parole for juvenile offenders, appellants are

not entitled to punishment hearings.” Id. at 864. Accord Turner v. State, 443

S.W.3d 128, 129 (Tex. Crim. App. 2014) (per curiam) (holding that appellant “is

not entitled to an individualized sentencing hearing” and reforming sentence from

life without parole to life with the possibility of parole); Lewis v. State, 448 S.W.3d

138 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
                                          15
      The procedural history of the instant case differs slightly from those of the

Court of Criminal Appeals cases addressed above. In Lewis and in Turner, the

sentence of each defendant was reformed by an appellate court from life without

parole to life with a possibility of parole. In the case at bar, the appellant’s original

sentence of life without parole was reversed on appeal, and his sentence of life

with the possibility of parole was assessed by the trial court on remand. That

distinction is inconsequential. In other cases where the life sentence was assessed

upon remand, the appellate courts have followed Lewis and Turner and held that

the “punishment on remand did not violate the Eighth Amendment.” Henry v.

State, No. 05-14-00197-CR, 2015 Tex. App. LEXIS 7151 at *5 (Tex. App.—

Dallas July 10, 2015) (not designated for publication); Wilson v. State, No. 14-14-

00015-CR, 2015 Tex. App. LEXIS 3818 (Tex. App.—Houston [14th Dist.] Apr.

16, 2015) (not designated for publication).

      Accordingly, the Court should find that the appellant was not entitled to an

individualized punishment hearing under the Eighth Amendment and that the

mandatory nature of section 12.31 therefore did not cause that statute to be

unconstitutional as applied to him.




                                           16
   5. Miller should be applied only to sentences that literally preclude parole

       As was mentioned above, the appellant asks this Court to extend Miller

(which addressed only life sentences that literally precluded parole) to a sentence

that is, according to the appellant, a “de facto” sentence of life without parole. He

argues that being paroled is a “remote possibility” for him and that “[t]here 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.” App. Brief at 25.

       It is true that the appellant’s eligibility for parole will not begin until he has

served 40 calendar years in prison. See Tex. Gov't Code § 508.145(b) (2013)

(“An inmate serving a life sentence under Section 12.31(a)(1), Penal Code, for a

capital felony is not eligible for release on parole until the actual calendar time the

inmate has served, without consideration of good conduct time, equals 40 calendar

years”).8 However, that 40-year minimum period of incarceration does not, in and



       8
           As was explained above, the appellant’s life sentence was assessed pursuant to either
Texas Penal Code section 12.31(a) (1) (2013) or an earlier version of that same statute, i.e.,
section 12.31(a) (2005). Regardless of which version of that statute was applied, the appellant’s
eligibility for parole begins after he has served 40 calendar years in prison. Compare Tex. Gov't
Code § 508.145(b) (2013) (“An inmate serving a life sentence under Section 12.31(a)(1), Penal
Code, for a capital felony is not eligible for release on parole until the actual calendar time the
inmate has served, without consideration of good conduct time, equals 40 calendar years”) with
id. § 508.145(b) (2010) (“An inmate serving a life sentence under Section 12.31(a)(1), Penal
Code, for a capital felony is not eligible for release on parole until the actual calendar time the
inmate has served, without consideration of good conduct time, equals 40 calendar years.”).


                                                17
of itself, compel the conclusion that the appellant’s sentence is the functional

equivalent of a sentence of life without parole.

      As a more fundamental matter, that 40-year requirement does it justify the

extension of Miller to a sentence that does not literally preclude the possibility of

parole. “Miller did not hold that a juvenile homicide offender could not be

sentenced to life imprisonment with the possibility of release.” State v. Vang, 847

N.W.2d 248, 262 (Minn. 2014). For purposes of assessing constitutionality, a

punishment scheme that completely precludes parole differs significantly from a

scheme that authorizes parole, even where the juvenile’s parole eligibility does not

arise for 40 years. Because of those differences, the Court should narrowly

construe Miller and decline to extend its holding to the present case.

          a. By its terms, Miller merely applies to sentences of life without
             parole

      A number of courts in other jurisdictions have recognized that Miller simply

does not require an analysis of the type requested by the appellant. In one recent

case, for example, the Supreme Court of Wyoming concluded as follows:

      The Miller Court did not hold that mandatory life sentences for
      juveniles were unconstitutional; it only held that a certain process
      must be followed before imposition of a sentence of life without
      parole. Like the courts of Massachusetts, Pennsylvania and
      Minnesota, we conclude that we cannot extend the protections of the
      United States Constitution to all mandatory life sentences for
      juveniles, when the United States Supreme Court has declined the
      opportunity to do so.


                                          18
Bear Cloud v. State, 334 P.3d 132, 145, 2014 WY 113 (Wyo. 2014). See

Commonwealth v. Brown, 466 Mass. 676, 1 N.E.3d 259, 267 (Mass. 2013) (“If the

Court in Miller had intended to invalidate all mandatory life sentences for

juveniles, it could have reached that issue. Instead, Miller's holding was decidedly

narrow[.]”); Commonwealth v. Batts, 620 Pa. 115, 66 A.3d 286, 296 (Pa. 2013)

(expressing reluctance to go further than the Supreme Court, which “neither barred

imposition of a life-without-parole sentence on a juvenile categorically nor

indicated that a life sentence with the possibility of parole could never be

mandatorily imposed on a juvenile”); Ouk v. State, 847 N.W.2d 698, 701 (Minn.

2014) (holding that life sentence with the possibility of release after 30 years “does

not violate the rule announced in Miller because it does not require the imposition

of the harshest term of imprisonment: life imprisonment without the possibility of

release”).

      “As one court put it: ‘[i]f the Supreme Court has more in mind, it will have

to say what that is.’” Bunch v. Smith, 685 F.3d 546, 553 (6th Cir. 2012), quoting

Henry v. State, 82 So.3d 1084, 1089 (Fla. App. 2012).

             b. To extend Miller, this Court would be required to assess the
                probability of parole, not merely its possibility

      In Miller, the punishment schemes at issue were deemed unconstitutional

because they “denied juveniles convicted of murder all possibility of parole,

leaving them no opportunity or incentive for rehabilitation.” Lewis, 428 S.W.3d
                                          19
860, 863 (emphasis added); see Miller, 132 S. Ct. at 2465 (“Life without parole

‘forswears altogether the rehabilitative ideal’”), quoting Graham v. Florida, 560

U.S. 48, 74, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); see also Graham, 560 U.S.

at 79 (“A young person who knows that he or she has no chance to leave prison

before life's end has little incentive to become a responsible individual”).9

        In contrast to the life-without-parole sentences at issue in Miller, a

mandatory sentence of life with parole is constitutionally permissible precisely

because the latter (by definition) gives the juvenile defendant the possibility of

parole and therefore does not stifle the incentives associated with that possibility:

       Life in prison with the possibility of parole leaves a route for juvenile
       offenders to prove that they have changed while also assessing a
       punishment that the Legislature has deemed appropriate in light of the
       fact that the juvenile took someone's life under specified
       circumstances.

Lewis, 428 S.W.3d 860, 863.

       Thus, for purposes of assessing constitutionality of a punishment scheme in

the context of juvenile defendants, the critical distinction between the sentences of

life with parole and life without parole is one of “possibility.”

       The appellant does not dispute that parole is a possibility for him. Instead,

he focuses on its probability, claiming that the possibility of parole in his case is so


       9
         In Graham, the Supreme Court held that the Eighth Amendment is violated where a
juvenile offender is “sentenced to life in prison without parole for a nonhomicide crime.”
Graham v. Florida, 560 U.S. 48, 52-53 (U.S. 2010)
                                              20
“remote” or improbable that it causes his sentence to be a de facto sentence of life

without parole. App. Brief at 25. This distinction between possibility and

probability is significant. In Miller, the issue was one of possibility, not

probability. The punishment schemes at issue there were declared unconstitutional

because they “denied juveniles convicted of murder all possibility of parole.”

Lewis, 428 S.W.3d 860, 863.

      In Miller, it was self-evident that no such opportunity existed. By definition,

the life-without-parole sentences literally precluded that possibility. Thus, the

probability of parole beyond dispute: it was zero. That fact was crystal clear as

early as the date when those sentences were imposed. Consequently, the Supreme

Court in Miller was not even called upon to assess the probability of parole.

      Unlike Miller, where the dispositive issue was a simple, black-or-white

question of possibility, the instant case presents a complicated, shades-of-gray

issue of probability. To extend the holding of Miller to the instant case, this Court

would be required to perform a task that the Supreme Court did not itself perform

in Miller, i.e., the task of determining the probability of parole. Moreover, this

Court (unlike the Supreme Court in Miller) would also be required to define the

point at which the probability of parole becomes so low (so “remote”) that parole

no longer amounts to a meaningful, realistic opportunity.




                                          21
          c. Assessing the probability of parole is a speculative undertaking
             that should not be performed by this Court

      Determining the likelihood of parole would require untold speculation by

this Court. Cf. Andrade v. State, 700 S.W.2d 585, 590 (Tex. Crim. App. 1985)

(Teague, J., concurring) (“It is or should now be axiomatic that individual jury

predictions on the possibility of parole represent nothing more than ‘sheer

speculation.’ … To invite any jury to indulge in such speculation is to ask it to

foretell numerous imponderables, in particular, the policies that may be adopted by

the present and unnamed future governors and parole officials.”).

      The probability of parole in this case depends, in large part, upon the

appellant’s actual lifespan. At the present time, it is undeniable that parole will be

a possibility if the appellant lives to a ripe old age that is well beyond his initial

parole-eligibility date (which is invariable because it is fixed by law). On the other

hand, it is equally clear right now that, if the appellant’s death occurs before the

arrival of that same parole-eligibility date, he will have had no such opportunity.

      In similar cases, some courts in other jurisdictions have considered life

expectancy to be “a key factual issue.” State v. Null, 836 N.W.2d 41, 71 (Iowa

2013). See, e.g., People v. Perez, 214 Cal. App. 4th 49, 57, 154 Cal. Rptr. 3d 114

(Cal. App. 2013) (“We are aware of … no case which has used the Roper-Graham-

Miller-Caballero line of jurisprudence to strike down as cruel and unusual any

sentence against anyone under the age of 18 where the perpetrator still has
                                            22
substantial life expectancy left at the time of eligibility for parole”); People v.

Caballero, 55 Cal. 4th 262, 145 Cal. Rptr. 3d 286, 282 P.3d 291, 295 (2012)

(“Defendant in the present matter will become parole eligible over 100 years from

now…. Consequently, he would have no opportunity to ‘demonstrate growth and

maturity’ to try to secure his release, in contravention of Graham's dictate.”);

People v. Mendez, 188 Cal. App. 4th 47, 62-63 (Cal. App. 2010) (finding

defendant’s sentence to be a de facto sentence of life without parole because he

“will not be eligible for parole until he is older than 88 years” and “well past his

life expectancy, which currently, for an 18-year-old American male, is 76 years”).

       When attempting to assess a defendant’s life expectancy, some appellate

courts consider generalized mortality tables or other statistical information. See,

e.g., State v. Ragland, 836 N.W.2d 107 (Iowa 2013). In the instant case, the

appellant makes certain representations regarding “the average life expectancy of

federal criminal offenders.”10 App. Brief at 32. The fundamental problem with




       10
           To the extent that the appellant attempts to buttress his claim by reference to materials
that are not part of the appellate record, that attempt must fail. See, e.g., Leza v. State, 351
S.W.3d 344, 362 n48 (Tex. Crim. App. 2011); Whitehead v. State, 130 S.W.3d 866, 872 (Tex.
Crim. App. 2004); Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981) ("Articles
attached to briefs are not properly before this Court as evidence"); George E. Dix & John M.
Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 55:48 (3rd ed. 2011) at 116
("Perhaps the most basic characteristic of the appellate record is that it is limited to matters
before the trial court. An appellate court may not consider such extra-record materials as
affidavits attached to appellate briefs.").
                                                 23
that approach, however, is that any given defendant may die long before, or long

after, the date suggested by those tables.

      A related problem occurs when courts consider such generalized information

but then make adjustments in an attempt to accommodate other variables. See

Null, 836 N.W.2d at 71 (“It may be, as some have suggested, that long-term

incarceration presents health and safety risks that tend to decrease life expectancy

as compared to the general population”).

      The imprecise nature of computing a particular defendant’s life expectancy

has even led a few courts to conclude that “the determination of whether the

principles of Miller or Graham apply in a given case” should not “turn on the

niceties of epidemiology, genetic analysis, or actuarial sciences in determining

precise mortality dates.” Null, 836 N.W.2d at 71; accord Bear Cloud v. State,

2014 WY 113, 334 P.3d 132, 142 (2014); LeBlanc v. Mathena, 2015 U.S. Dist.

LEXIS 86090 at *40 (E.D. Va. July 1, 2015).

      The result is that some courts make their rulings without the benefit of any

bright-line standard. In Null, for example, the Supreme Court of Iowa determined

that the evidence (a generalized mortality table) "does not clearly establish that [the

defendant's] prison term is beyond his life expectancy" but still found Graham and

Miller to apply because the table “suggests that Null's sentence may closely come




                                             24
within two years of his life expectancy, but not exceed it.” 836 N.W.2d 41, 71

(emphasis added).

      Because the Supreme Court has already articulated a standard that is easy to

identify and apply—i.e., the possibility of parole—this Court should eschew any

alternative standard that would cause a ruling to be based upon the vagaries of

whether the sentence at issue would be “close[]” enough.

      It is true that other factors, such as good conduct, will be considered by the

parole board in the future, when deciding whether to parole the appellant. See,

e.g., Tex. Gov't Code § 498.003(a) (providing, inter alia, that “[g]ood conduct time

applies … to eligibility for parole”). But this Court has no basis for concluding, as

a matter of law at this time, that those other factors will actually foreclose the

possibility of parole when they are considered by the parole board some 40 years

from now.

      The only fact that can reasonably be predicted now is that the appellant will

become eligible for parole at age 57, upon completion of his 40-year minimum

stay. See Tex. Gov't Code § 508.145(b) (2013); App. Brief at 26. Nobody can

predict, with any degree of accuracy, how long the appellant will live beyond his

parole-eligibility date. Because the probability of parole necessarily encompasses

that factor of life expectancy and a host of other variables, any conclusions about




                                           25
the probability of the appellant being paroled decades from now would necessarily

be highly speculative.

       It should be noted that the appellant’s claim is not supported by this current

uncertainty as to whether he will actually be paroled in the future. “‘A State is not

required to guarantee eventual freedom,’ but must provide ‘some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation’”
11
 Miller, 132 S. Ct. at 2469 (emphasis added), quoting Graham, 560 U.S. at 75, 82.

That opportunity must be “realistic.” Graham at 82. Moreover, the entire

statutory scheme at issue here, which includes all of the provisions relating to

parole, is entitled to a presumption of constitutionality.12 See Ex parte Granviel,

561 S.W.2d 503, 511.




       11
           Both Graham and Miller contain language stating that the possibility of parole must be
a meaningful possibility. That language is dicta in the sense that the meaningfulness of the
possibility was not at issue in either case. In those cases, the defendants were sentenced to life
without parole; there was no possibility of parole.
        12
           In his sole point of error, the appellant challenges the statutory scheme underlying his
“sentence.” However, he does not expressly challenge any Texas statute relating to parole. The
Court of Criminal Appeals has narrowly interpreted the word "sentence.” See State v. Kersh,
127 S.W.3d 775, 777 (Tex. Crim. App. 2004). "The sentence is that part of the judgment … that
orders that the punishment be carried into execution in the manner prescribed by law" or
"nothing more than the portion of the judgment setting out the terms of punishment." Id.
(quoting Tex. Code Crim. Proc. art. 42.02). It follows that parole is not part of a sentence. Any
such challenge to any Texas statute relating to parole is therefore inadequately briefed and
should not be considered. See Tex. R. App. P. 38.1; Hankins v. State, 132 S.W.3d 380, 385
(Tex. Crim. App. 2004); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (“We will not
make appellant's arguments for him” where “appellant points us to nothing in the record, makes
no argument, and cites no authority to support this proposition”). Any challenge to any Texas
statute based upon the denial of parole is also premature, because the appellant is not yet eligible
for parole.
                                                 26
      Challenges to the constitutionality of a statute as it applies to a particular

individual should not be resolved on the basis of speculation, societal averages, or

imprecise appellate determinations as to whether something is “close enough.”

This is especially true because the Supreme Court was not called upon do so (and

did not do so) in Miller and because no other appellate court in Texas has extended

Miller in the way that the appellant seeks here. Another reason is that the

punishment at issue was one that “the Legislature has deemed appropriate in light

of the fact that the juvenile took someone's life under specified circumstances.”

Lewis, 428 S.W.3d 860, 863.

      In light of the daunting challenge associated with divining the probability of

parole in this case, the State respectfully suggests that the better practice would be

for this Court to avoid that speculative exercise altogether and instead be guided

solely by the narrow holdings of Miller and the decisions of the Court of Criminal

Appeals construing that ruling. See Lewis, 428 S.W.3d 860 (Tex. Crim. App.

2014); Turner, 443 S.W.3d 128, 129.

      In other words, this Court should forego any assessment of probability and

limit its analysis to a determination of whether the appellant (like the defendants in

Miller) was denied the possibility of parole.

      For the Eighth Amendment to be violated, such a denial must result from the

applicable punishment scheme. In Miller, the defendants’ opportunity for parole


                                          27
was literally foreclosed by the respective punishment schemes. Regardless of how

long those defendants lived, they would never have had a meaningful, realistic

opportunity to be paroled. Indeed, they would never have had any opportunity

whatsoever. In the instant case, the opportunity for parole has not been foreclosed

by the punishment scheme. That opportunity will continue to be a possibility for

the appellant unless it is foreclosed by future events.

   6. If the Court does perform a probability analysis, it should find that the
      appellant’s sentence is not a de facto sentence of life without parole

       Assuming, for the sake of argument, that Miller can properly be extended

and applied to sentences that are not literally sentences of life without parole, the

question to be resolved here is whether the appellant has established that the

punishment scheme deprived him of a meaningful, realistic opportunity to be

paroled. Cf. Miller, 132 S. Ct. at 2469; Graham, 560 U.S. at 75, 82.13

       No such deprivation has been proved. As was pointed out above, the

appellant will be eligible for parole at age 57. The appellant has not established, at

the trial level or on appeal, that he will not have a meaningful, realistic

opportunity to be paroled when he becomes eligible.14 This Court does not, for



       13
          As was explained above, Miller does not require such an analysis. Nor does Graham,
which, by its terms, applies to sentences for “nonhomicide” offenses. Graham v. Fla., 560 U.S.
48, 52 (2010). In the instant case, the sentence at issue relates to the offense of capital murder.
       14
          While the mandatory nature of the punishment scheme, in effect, precluded the trial
court from considering evidence on this issue during the post-remand sentencing proceedings,
                                                 28
example, have any reason to believe that the appellant will not live long enough to

take advantage of that opportunity when it arrives. Nor is there any basis for

concluding, as a matter of law, that the incentives associated with that possibility

have been stifled.

       Simply put, the appellant has not established that his sentence is either cruel

or unusual. In Ellmaker, for example, a Kansas appellate court considered a

challenge to a juvenile’s sentence that required a mandatory term of imprisonment

of 50 years, otherwise known as a “hard 50 sentence.” The juvenile committed the

underlying murder when he was 17 years old. The court rejected that claim,

concluding that the sentence was not the functional equivalent of a sentence of life

without parole.

       Granted, a teenager has a greater likelihood of serving all 50 years of
       the sentence than an offender who is, for example, 50 years old. But
       whereas a hard 50 sentence is the functional equivalent of a life
       sentence without the possibility of parole for an offender who is 50
       years old when the sentence is imposed, a juvenile offender who
       receives a hard 50 sentence actually has a chance for release from
       prison at the end of the term.
       ***
       A hard 50 sentence is a severe sentence that carries with it a long term
       of mandatory imprisonment; yet unlike a sentence of life without
       parole or the death penalty, it is not mutually exclusive with eventual
       release. Considering the explicit way in which the United States
       Supreme Court has distinguished life without parole sentences and the
       death penalty and set them apart from all other sentences, we decline


the appellant will presumably have the ability to present relevant evidence in the future during a
habeas proceeding.
                                                29
      Ellmaker's invitation to extend this category to include a hard 50
      sentence when imposed on juveniles. Thus, we reject Ellmaker's
      assertion that a hard 50 sentence on a juvenile offender is the
      functional equivalent of a life sentence without parole. Because
      Ellmaker's claim is based on this premise, his arguments under Miller
      fail for this reason alone.

Ellmaker v. State, 329 P.3d 1253 (Kan. App. 2014) (not designated for

publication).

      See also Boneshirt v. United States, No. CIV 13-3008-RAL, 2014 U.S. Dist.

LEXIS 161922 at *26 - 827 (D.S.D. Nov. 19, 2014) (regarding juvenile convicted

of murder, federal court rejected claim that sentence violated Miller, reasoning,

inter alia, “In reality, Boneshirt has a realistic opportunity to be released from

custody before he dies…. Boneshirt thus will be released from prison between the

ages of fifty-nine and sixty-five.”); Ouk v. State, 847 N.W.2d 698, 701 (Minn.

2014) (holding that life sentence with the possibility of release after 30 years “does

not violate the rule announced in Miller because it does not require the imposition

of the harshest term of imprisonment: life imprisonment without the possibility of

release”); State v. Vang, 847 N.W.2d 248, 262-63 (Minn. 2014) (rejecting

juvenile’s claim, reasoning, “Appellant’s life sentence with the possibility of

release after 30 years is not tantamount to a death sentence. Because appellant is

eligible for release after 30 years, his mandatory life sentence for first-degree

murder does not constitute cruel and unusual punishment under the Eighth

Amendment and the principles of Miller”); People v. Perez, 214 Cal. App. 4th 49,
                                          30
57, 154 Cal. Rptr. 3d 114 (Cal. App. 2013) (where juvenile, convicted of

nonhomicide crimes, was assessed two mandatory, consecutive terms totaling of

30 years to life, the court concluded, “There is no dispute that … he will be eligible

for parole when he reaches age 47. That is, by no stretch of the imagination can

this case be called a ‘functional’ or ‘de facto’ [sentence of life without parole], and

therefore neither Miller, Graham, nor Caballero apply.”).

   7. Conclusion

         The Court should reject the appellant’s claim that the statutory scheme

underlying his life sentence violates the Eighth Amendment prohibition against

cruel and unusual punishment. The Court of Criminal Appeals has previously

determined that the mandatory nature of that scheme does not render it

unconstitutional. Further, Miller, which addressed sentence of life without parole,

need not be—and should not be—extended and applied to the appellant’s sentence

of life with the possibility of parole. The statutory scheme is entitled to a

presumption of constitutionality, and the appellant has failed to rebut that

presumption. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.

1978).

         The appellant’s point of error should be overruled.




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                                      PRAYER

      WHEREFORE, the State requests that the Court overrule the appellant’s

point of error and affirm the judgment of the trial court.


                                 Respectfully submitted,
                                 Rosemary Lehmberg
                                 District Attorney
                                 Travis County, Texas

Timothy Elliott                  /s/ M. Scott Taliaferro
Law Clerk                        M. Scott Taliaferro
                                 Texas Bar No. 00785584
                                 Assistant District Attorney
                                 Director, Appellate Division
                                 District Attorney’s Office
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 Phone: 512.854.3626 Fax: 512.854.4810
                                 Email: scott.taliaferro@traviscountytx.gov
                                         and appellateTCDA@traviscountytx.gov


                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify, based

on the computer program used to generate this brief, that this brief contains 7,795

words, excluding words contained in those parts of the brief that Rule 9.4(i)

exempts from inclusion in the word count.

                                                             /s/ M. Scott Taliaferro
                                                             M. Scott Taliaferro




                                          32
                          CERTIFICATE OF SERVICE

      I hereby certify that, on the 30th day of September 2015, the foregoing

State’s brief was sent, via U.S. mail, electronic mail, facsimile, or electronically

through the electronic filing manager, to the appellant’s attorney, Jon Evans, Esq.,

806 W. 11th Street, Austin, Texas 78701, fax no. (512) 477-6840.


                                                            /s/ M. Scott Taliaferro
                                                            M. Scott Taliaferro




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