Opinion issued December 19, 2017




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-16-00566-CR
                            ———————————
                 KIMBERLY NICOLE CORMIER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 339th District Court
                            Harris County, Texas
                        Trial Court Case No. 1441115


                                O P I N I O N

      In December 2014, Kimberly Nicole Cormier was charged with capital

murder arising out of her participation in an aggravated robbery that resulted in the

Jose Bonilla’s death. A jury found her guilty of the offense as charged. See TEX.

PENAL CODE §§ 19.02, 19.03. The State did not seek the death penalty, and thus the
trial court automatically assessed punishment at life imprisonment without the

possibility of parole. See TEX. PENAL CODE § 12.31(a)(2).

      On appeal, Cormier contends that (1) the trial court erred in refusing to instruct

the jury on the definition of “imminent” as it applies to the affirmative defense of

duress; and (2) Section 12.31(a)(2) of the Texas Penal Code, which requires a

punishment of life without parole for a defendant 18 years of age or older found

guilty of a capital offense, is constitutionally infirm on its face and as applied to

Cormier because it violates her right to be free from cruel or unusual punishment

guaranteed by Article I, Section 13, of the Texas Constitution as well as her right to

be free from cruel and unusual punishment guaranteed by the Eighth Amendment of

the federal Constitution. We affirm.

                                 BACKGROUND

      Cormier met James Nicholas in February 2014. The two began a romantic

relationship. Cormier described Nicholas as kind and attentive at first, but as time

went on, he became controlling and abusive.

      Both Cormier and Nicholas had criminal histories. Nicholas was on parole,

having recently been released from prison after being incarcerated for felony

delivery of cocaine and unlawful possession of a firearm. Cormier had served six

months for forging a prescription in 2006 and later served four years for obtaining




                                           2
drugs by fraud in 2010. She was using prescription pain medication when she met

Nicholas.

      In September 2014, Nicholas began a week-long crime spree that included the

murders of Johnny Holcombe, Catherine Gingrich, Marty Carol, and Jose Bonilla,

and the aggravated robbery of a cell-phone store. Cormier accompanied Nicholas

during these events.

      Nicholas began to worry that law-enforcement officials would identify his car

in connection with the murders and the store robbery. He and Cormier visited

several used-car lots to attempt to steal a car, but the opportunity to take one did not

arise. Following these unsuccessful efforts, their conversation turned to Bonilla.

Bonilla was an acquaintance of Cormier. Bonilla managed a business that bought,

sold, and repaired cars. He ran the business out of his home and had outfitted the

home with surveillance cameras for security purposes. The cameras recorded video,

but not audio.

      Cormier and Nicholas visited Bonilla the evening of September 7th. They

inspected the cars that Bonilla had available and expressed an interest in buying one

of them. They made arrangements to return in the morning.

      The surveillance video recording from that morning shows Cormier greeting

Bonilla. She is fluent in Spanish and appeared to take the lead in negotiations.




                                           3
Nicholas took one of Bonilla’s cars on a test drive around the neighborhood while

Bonilla and Cormier conversed outside of Bonilla’s home.

      A few minutes later, Nicholas returned from the test drive and the three went

inside Bonilla’s home. While Cormier and Bonilla were discussing paperwork in

Bonilla’s kitchen, Nicholas pulled a gun from the back of his waistband and put it to

Bonilla’s head. Nicholas handed Cormier some plastic zip-ties and, still holding the

gun to Bonilla’s head, directed Bonilla into the living room. Nicholas had Bonilla

sit on the sofa while Cormier spoke to him. The surveillance video shows Cormier

speaking to Bonilla in an aggressive manner. After a few minutes, Nicholas lunged

toward the sofa, picked up a throw pillow, held it to the side of Bonilla’s head, and

placed the gun on the other side of the pillow. Bonilla removed an object from his

pocket and gave it to Nicholas. Nicholas and Cormier then forced Bonilla into his

bedroom, which was not within view of the surveillance cameras.

      The surveillance video shows Cormier and Nicholas leaving the bedroom a

few minutes later. Nicholas returned the throw pillow to the sofa. Cormier looked

out of the front-door peephole while she covered her hand with the bottom edge of

her tee shirt and wiped off the doorknob. They left the house and drove away in

Bonilla’s car.

      That afternoon, Bonilla’s roommate returned home from work to find Bonilla

dead in his bedroom. He had a single gunshot wound on the right side of his head.


                                          4
His ankles and feet were tied together with zip ties. A spent shell casing was on the

floor near his feet.

       Three days after Bonilla’s murder, the police found Nicholas and Cormier

leaving Cormier’s neighborhood in Bonilla’s car. Nicholas, who was driving, tried

to flee from the police and shot at the police vehicle. Before he could be arrested,

he shot Cormier on her left side and shot himself in the head. An officer ordered

Cormier out of the car and onto the ground. Nicholas died at the scene. Cormier

survived her injuries.

       At trial, Cormier acknowledged that she was present at the murders of

Holcombe, Gingrich, Carol, and Bonilla, and that she had driven the get-away car

from the cell-phone store where Nicholas had committed aggravated robbery. She

claimed, however, that she acted in fear for her life. She testified that Nicholas had

pointed his gun at her and told her that he would kill her if she told the police about

his crimes.

       Defense witness Toby Myers, an expert in domestic violence, opined that

Cormier was terrified of Nicholas to the point of believing that she would not survive

if she escaped him. He further opined that Cormier would not have been with

Nicholas if she felt she had a choice. Cormier conceded, though, that she never

attempted to flee from Nicholas or warn Bonilla. She acknowledged that the police




                                          5
confiscated an air pistol, a knife, and Gingrich’s identification from her purse. She

also conceded that she had lied to the police about her involvement in the crimes.

      After the close of evidence, the trial court prepared a jury charge that included

Cormier’s affirmative defense of duress, defined as follows:

      It is an affirmative defense to prosecution for any offense that the
      person charged engaged in the proscribed conduct because she was
      compelled to do so by the threat of imminent death or serious bodily
      injury to herself or another. Such compulsion exists only if the force or
      threat of force would render a person of reasonable firmness incapable
      of resisting the pressure.

      The defense of duress is unavailable if the defendant intentionally,
      knowingly, or recklessly placed herself in a situation in which it was
      probable that she would be subjected to compulsion.

Cormier asked the trial court to add the following definition:

      The word “imminent,” for purposes of determining duress, has been
      defined by courts to mean “near at hand; mediate rather than immediate;
      close rather than touching; on the point of happening; threatening;
      menacing; or perilous.”

The trial court refused the requested instruction.

                                   DISCUSSION

      Cormier challenges the trial court’s charge to the jury, contending that the

charge should have contained a definition for the word “imminent” in connection

with her defense that she was under duress when she participated in Bonilla’s

murder. She further challenges the imposition of life imprisonment without the

possibility of parole as constitutionally infirm because it is automatic and does not
                                          6
allow a jury to consider circumstances that might mitigate the term of confinement,

and in particular, eliminates the possibility of parole.

I.    The trial court was not required to submit a definition of “imminent.”

      Cormier contends that the trial court erred in refusing to include her tendered

definition of “imminent” because it contains language that draws a distinction

between “imminent” and “immediate.”

      A.     Standard of review and applicable law

      The trial court must deliver to the jury a written charge distinctly setting forth

the law applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The “law

applicable to the case” includes the statutory definitions that affect the meaning of

the elements of the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim.

App. 2011); Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th

Dist.] 2012, no pet.). If the applicable statute defines a phrase, term, or word that

the jury must use to properly resolve an issue, the trial court has no discretion; it

must submit that definition to the jury. See Arline v. State, 721 S.W.2d 348, 352 n.4

(Tex. Crim. App. 1986); see also State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App.

2004) (“A trial court has no discretion in determining what the law is or applying

the law to the facts.”).

      A defendant who properly requests that a defensive theory raised by the

evidence be submitted to jury is entitled to an instruction on that theory. Booth v.


                                           7
State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984); see also Shaw v. State, 243

S.W.3d 647, 658 (Tex. Crim. App. 2007).

      In submitting a defensive theory, trial courts have broad discretion in

submitting proper definitions and explanatory phrases to aid the jury. Nava v. State,

379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 415 S.W.3d

289 (Tex. Crim. App. 2013). When submitting defensive theories, however, the trial

court must do so correctly. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App.

2013) (holding that when a trial court “charge[s] on a defensive issue (regardless of

whether [it] does so sua sponte or upon a party’s request), but fails to do so correctly,

this is charge error subject to review”). If, as here, the accused makes a timely and

pertinent objection at trial, reversal is required if the accused suffered “some harm”

from the error. Vega, 394 S.W.3d at 519.

      Duress is an affirmative defense that applies if the defendant “engaged in the

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

or serious bodily injury to himself or another.” TEX. PENAL CODE § 8.05(a).

Compulsion means a force or threat of force that “would render a person of

reasonable firmness incapable of resisting the pressure.” Id. § 8.05(c).

      In this case, the statute does not define “imminent.” Because it does not,

ordinarily the jury charge does not require a specific instruction. Smith v. State, 297

S.W.3d 260, 275 (Tex. Crim. App. 2009). Rather, jurors are presumed to apply a


                                           8
common understanding to the meaning of these terms. See id. But terms with a

technical legal meaning may require definition even when the term is not defined in

a statute “when there is a risk that jurors may arbitrarily apply their own personal

definitions of the term or when a definition of a term is required to assure a fair

understanding of the evidence.” Nava, 379 S.W.3d at 420 (citing Middleton v. State,

125 S.W.3d 450, 454 (Tex. Crim. App. 2003)). Cormier contends that the trial court

erred in refusing to define “imminent” for the jury because it has a known and

established legal meaning in the context of a duress defense. We thus turn to the

question whether “imminent” required a legal definition.

      B.      Analysis

      Even outside the context of a duress defense, the Penal Code does not define

“imminent.”     See TEX. PENAL CODE § 1.07.        Courts have employed various

definitions for the term in deciding whether the evidence is sufficient to support a

conviction in the face of a defense of duress. An imminent threat is a present threat

of harm. Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.]

1999, pet. ref’d). It has two components: (1) the person making the threat must

intend and be prepared to carry out the threat immediately, and (2) the threat must

be predicated on the threatened person’s failure to commit the charged offense

immediately. See Devine v. State, 786 S.W.2d 268, 270–71 (Tex. Crim. App. 1989);




                                         9
Anguish, 991 S.W.2d at 886. Threats of future harm are not sufficient to prove

duress. Devine, 786 S.W.2d at 270–71.

      Cormier points to the Court of Criminal Appeals’s decision in Devine, which

reviewed the sufficiency of the evidence supporting a jury verdict finding the

appellant guilty of robbery.     In that case, the Court provided a definition of

“imminent,” citing Black’s Law Dictionary.         See id. at 270 (citing Imminent,

BLACK’S LAW DICTIONARY (5th ed. 1979)); see also Garcia v. State, 367 S.W.3d

683, 688–89 (Tex. Crim. App. 2012).            Cormier’s tendered instruction is the

definition that the Court used in Devine, meaning “near at hand; mediate rather than

immediate; close rather than touching; on the point of happening; threatening;

menacing; perilous.” See 786 S.W.2d at 270.

      Though the Court in Devine supplied a definition in the context of evaluating

the sufficiency of the evidence, it did not supplant the Legislature’s authority to

define “imminent” for the purpose of instructing a jury on duress or require that

juries be given a specific definition. An appellate court’s application of a definition

to a statutorily undefined term in reviewing the sufficiency of the evidence does not

in turn dictate that a trial court must define that term for the jury when the statute

does not. Nava, 379 S.W.3d at 420 (citing Kirsch v. State, 357 S.W.3d 645, 651

(Tex. Crim. App. 2012)). Neither Devine nor Garcia suggests that “imminent”

should have been defined in the jury charge, and Cormier points us to no case


                                          10
holding that a trial court erred in refusing to submit a definition. Neither case

concerns the affirmative defense of duress. See Garcia, 367 S.W.3d at 688–89

(appeal of conviction for endangering child); Devine, 786 S.W.2d at 269 (appeal of

robbery conviction).

       The Legislature uses “imminent” in varied contexts throughout the Penal

Code.1 The widespread use of the term, without definition, undermines Cormier’s


1
    See, e.g., TEX. PENAL CODE § 9.22(1) (in justification defense of necessity,
    “[c]onduct is justified if: the actor reasonably believes the conduct is immediately
    necessary to avoid imminent harm”); id. § 22.01(a)(2) (person commits assault if
    person “intentionally or knowingly threatens another with imminent bodily
    injury, including the person’s spouse”); id. § 22.041(c) (person commits offense
    of abandoning or endangering child “if he intentionally, knowingly, recklessly,
    or with criminal negligence, by act or omission, engages in conduct that places a
    child younger than 15 years in imminent danger of death, bodily injury, or
    physical or mental impairment”); id. § 22.07(a)(2) (person commits terroristic
    threat by threatening to commit violent offense with intent to place person in fear
    of imminent serious bodily injury); id. § 29.02(a)(2) (person commits robbery if
    in course of committing theft he “intentionally or knowingly threatens or places
    another in fear of imminent bodily injury or death”); id. § 29.03(a)(3) (robbery
    becomes aggravated robbery if robber causes bodily injury to another or threatens
    or places elderly or disabled person in fear of imminent bodily injury or death);
    id. § 38.15(e) (defining, for purposes of statute prohibiting interference with
    public duties, “emergency” as “a condition or circumstance in which an
    individual is or is reasonably believed by the person transmitting the
    communication to be in imminent danger of serious bodily injury or in which
    property is or is reasonably believed by the person transmitting the
    communication to be in imminent danger of damage or destruction”); id.
    § 42.06(a)(2) (person commits offense of false alarm or report if, among other
    things, “he knowingly initiates, communicates or circulates a report of a present,
    past, or future bombing, fire, offense, or other emergency that he knows is false
    or baseless and that would ordinarily: . . . place a person in fear of imminent
    serious bodily injury”); id. § 71.022(a-1)(1) (person commits offense if, with
    intent to coerce, induce, or solicit a child to actively participate in the activities
                                            11
position that a specific, technical definition of “imminent” applies to the duress

defense. See Bryant v. State, 905 S.W.2d 457, 459 (Tex. App.—Waco 1995, pet.

ref’d) (applying definition of “imminent” used in Devine to review sufficiency of

evidence in appeal of conviction for terroristic threat while observing that

Legislature did not manifest any intent for “imminent” to have one meaning in

Section 29.02 (robbery) and different meaning in Section 22.07 (terroristic threats)).

         Both the lack of a definition for “imminent” in the Penal Code and the Code’s

frequent use of “imminent” as an undefined modifier support the conclusion that

“imminent” has a common meaning. Because of the word’s common use, we hold

that the trial court acted within its broad discretion in refusing to submit the tendered

definition. See Nava, 379 S.W.3d at 420.

II.      Cormier’s punishment does not violate constitutional guarantees against
         cruel and unusual punishment.
         Cormier challenges the constitutionality of life imprisonment without parole

for persons convicted as a party to capital murder.          She claims that Section

12.31(a)(2) of the Penal Code, on its face, violates her right to be free from cruel or

unusual punishment guaranteed by Article I, Section 13, of the Texas Constitution

as well as her right to be free from cruel and unusual punishment guaranteed by the




      of a criminal street gang, the person “threatens the child or a member of the
      child’s family with imminent bodily injury”). None of these provisions defines
      “imminent.”
                                           12
Eighth Amendment of the United States Constitution.          She contends that, by

mandating life in prison without the possibility of parole for capital murder, the

statute prohibits individualized consideration of mitigating evidence necessary for

determining a just punishment.      She observes that the application of Section

12.31(a)(2) to her case violates those constitutional rights because the statute does

not allow for consideration as mitigating factors that she was convicted under the

law of parties and that she acted under duress.

      Before considering her challenges on the merits, we first address Cormier’s

suggestion that the Texas Constitution, which prohibits “cruel or unusual

punishment” provides greater protection than the United States Constitution’s

prohibition against “cruel and unusual punishment.” Compare TEX. CONST. art. I,

§ 13, with U.S. CONST. amend. VIII. The Court of Criminal Appeals has rejected

such a distinction. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997)

(finding no significance in differences between Eighth Amendment’s “cruel and

unusual” phrasing and Texas Constitution’s “cruel or unusual” phrasing); Duran v.

State, 363 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)

(following Cantu). Thus, we review Cormier’s state and federal constitutional

claims together.




                                         13
      A.     Cormier does not overcome the presumption that Section
             12.31(a)(2) is constitutional on its face.
      We review the facial constitutionality of a criminal statute de novo. Salinas

v. State, 464 S.W.3d 363, 366 (Tex. Crim. App. 2015) (relying on Ex parte Lo, 424

S.W.3d 10, 14 (Tex. Crim. App. 2013)). We presume the statute is valid and that

the Legislature did not act arbitrarily or unreasonably in enacting it. Rodriguez v.

State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The challenging party bears the

burden to show that no set of circumstances exists under which the statute would be

constitutionally valid. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.

2013). We analyze a facial challenge without regard to the specific facts of the case.

Ex parte Lo, 424 S.W.3d at 14 n.2.

      In arguing that the statute violates the Eighth Amendment, Cormier asks us to

extend the holding of Miller v. Alabama, 567 U.S. 460 (2012). There, the United

States Supreme Court determined that the Eighth Amendment prohibits the

imposition of mandatory life imprisonment without the possibility of parole with

respect to juveniles under the age of 18. Id. at 489. Cormier asks that we apply the

analysis in Miller to adults.

      The United States Supreme Court, however, has rejected this application. In

Harmelin v. Michigan, 501 U.S. 957 (1991), the Court considered the propriety of

mandatory life imprisonment without parole for possessing more than 650 grams of

cocaine. Id. at 995, 1002. Refusing to extend an individualized punishment

                                         14
requirement beyond the death-penalty context, it held that the imposition of

mandatory life imprisonment without the possibility of parole did not violate the

Eighth Amendment’s protection against cruel and unusual punishment. See id. at

995–96. In deciding Miller, the Court limited its holding to cases involving juvenile

offenders and declared that it “neither overrules nor undermines nor conflicts with

Harmelin.” 567 U.S. at 480–82; see also Lopez v. State, 493 S.W.3d 126, 139 (Tex.

App.—Houston [1st Dist.] 2016, pet. ref’d) (addressing Miller’s language and

concluding that Miller did not alter Harmelin).

      Multiple courts, including this one, thus have continued to follow Harmelin,

holding that the Eighth Amendment does not guarantee that adult defendants, like

their juvenile counterparts, must receive an individualized punishment hearing when

given an automatic punishment of life without the possibility of parole for capital

murder. See, e.g., Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. App. 2014) (per

curiam); Lopez, 493 S.W.3d at 139; Duran, 363 S.W.3d at 723; Lewis v. State, 448

S.W.3d 138, 146–47 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Under

these precedents, mandatory life imprisonment of an adult defendant does not violate

constitutional protections against cruel and unusual punishment.          Cormier’s

challenge provides no basis for distinguishing these precedents from her case. Thus,

we hold that Cormier has failed to overcome the presumption of constitutionality

that applies to Section 12.31(a)(2).


                                         15
      B.     The application of Section 12.31(a)(2) to Cormier does not violate
             the constitutional prohibition against cruel and unusual
             punishment.
      Alternatively, Cormier contends that Section 12.31(a)(2) is unconstitutional

as applied to her case. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.

Crim. App. 2011). A statute may be valid as applied to one set of facts and invalid

as applied to a different set of facts. Id. To prevail in this challenge, Cormier must

show that Section 12.31(a)(2) yields an unconstitutional result when it is applied to

the facts and circumstances of this case. See id.; see also Ploeger v. State, 189

S.W.3d 799, 813 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

      According to Cormier, Section 12.31(a)(2) prevented consideration of two

significant mitigating circumstances in her case: (1) her participation merely as a

party to the murder, and not as the primary actor, and (2) the evidence supporting

her duress defense, including her history of prescription drug abuse and as a victim

of domestic violence. This Court has rejected a claim that the mandatory life

imprisonment required under Section 12.31(a) of the Texas Penal Code is a cruel

and unusual punishment under the Eighth Amendment when a defendant has been

convicted as a party to capital murder and not as the primary actor. See Cienfuegos

v. State, 113 S.W.3d 481, 496 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Cormier’s claim that the mandatory automatic punishment does not allow for

consideration of her mitigating circumstances is similarly unavailing. Texas courts


                                         16
have overruled constitutional challenges to Section 12.31(a)(2) based on other

arguably compelling mitigating circumstances. See, e.g., Modarresi v. State, 488

S.W.3d 455, 465–67 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (defendant

claimed that she suffered from mental illness, particularly postpartum depression).

Further, the Court of Criminal Appeals, in applying Miller, has held that juvenile

offenders who had been imprisoned for life without parole were not entitled to have

individualized punishment hearings after Miller but were entitled instead only to

automatic modification of their punishment from life without parole to life with the

possibility of parole. Turner, 443 S.W.3d at 129. Accordingly, we hold that Cormier

has not demonstrated that Section 12.31(a)(2) is unconstitutional as applied to her

case. We reject Cormier’s challenge that her punishment, as applied to the facts of

her case, amounts to a violation of the state and federal constitutions.

                                    CONCLUSION

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).



                                          17
