Opinion issued September 24, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00175-CR
                           ———————————
                        CELVIN BROOKS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1515314


                                 OPINION

      A jury convicted appellant, Celvin Brooks, of the offense of capital murder.1

Because the State did not seek the death penalty and because appellant was younger


1
      See TEX. PENAL CODE ANN. § 19.03(a)(7) (providing that person commits offense
      of capital murder if he murders more than one person during same criminal
      transaction).
than eighteen years old at the time he committed the offense, the trial court

automatically assessed appellant’s punishment at confinement for life.2 In three

issues, appellant contends that (1) the trial court erred when it denied his motion for

mistrial because he was not afforded the opportunity to effectively cross-examine a

key State witness concerning the witness’s mental health history; (2) the trial court

erred by refusing his request to submit a jury instruction on the lesser-included

offense of murder; and (3) Texas’s statutory scheme of automatically sentencing

juvenile defendants who have committed capital felonies to confinement for life with

the possibility of parole after forty years is facially unconstitutional and denied him

due process because the scheme does not allow for an individualized sentencing

hearing or for any meaningful opportunity of release. See TEX. GOV’T CODE ANN.

§ 508.145(b) (providing that person serving life sentence under Penal Code section

12.31(a)(1) for 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”).

      We affirm.

                                    Background

      Demarquise Edwards, one of the complainants, lived in an upstairs apartment

in the Arbor Court apartment complex in north Houston and was known for selling


2
      See TEX. PENAL CODE ANN. § 12.31(a)(1).
                                          2
“drank,” a mixture of codeine and a beverage, usually soda. On March 20, 2015,

Houston Police Department (HPD) officers were dispatched to Edwards’s apartment

after receiving reports that a shooting had occurred. When officers arrived, they

discovered the bodies of Terrell Paynes, lying on a couch in the living room of the

apartment, Kiara Jackson, lying on the floor of the bedroom, and Edwards, lying on

the kitchen floor. Each of the complainants had suffered multiple gunshot wounds:

Paynes was shot in the face and neck; Kiara Jackson was shot in the head and right

leg; and Edwards was shot once in the left shoulder, three times in the back, and

twice in the head.

      Cassandra Crosby, who, at the time, was a crime scene investigator with HPD,

collected six fired cartridge casings from Edwards’s apartment. All of the casings

were the same caliber—nine millimeters—but were made by three different

manufacturers. Crosby also collected one bullet fragment from the dining room and

another bullet fragment that was lying on top of Kiara Jackson’s body. Crosby

observed drug paraphernalia in the apartment, including scales and narcotics located

in the kitchen, in some cabinets, and in the washing machine.

      HPD Homicide Division Sergeant C. Cegielski did not have any immediate

leads on who had committed the shooting at Edwards’s apartment, but a few days

after the shooting he began to receive tips through Crime Stoppers. Ultimately, after

researching the tips, Cegielski learned that a silver truck had been seen fleeing the


                                         3
scene after the shooting, and he developed three suspects in the shooting: appellant,

Broderick Bell, and Kevoughn Fields. Appellant spoke with Cegielski shortly after

the shooting and voluntarily provided a saliva sample. Appellant also consented to

the release of his cell phone records to HPD.

      Raveen Jones lived in the Arbor Court apartments in a building close to

Edwards’s. Jones’s cousin, Casper, had been friends with appellant, Bell, and Fields

before he was shot and killed at the Haverstock Hills apartment complex in February

2015, approximately one month before the shooting at Edwards’s apartment. The

Haverstock Hills complex was a ten or fifteen minute car drive from Arbor Court.

Jones had met appellant, Bell, and Fields, and she had seen them at Casper’s funeral.

Two days before the shooting at Edwards’s apartment, she saw appellant, Bell, and

Fields standing by a white or silver truck in the parking lot at Arbor Court. She

thought it was unusual to see these three men at Arbor Court because, prior to this

occasion, she had only seen them at Haverstock Hills and at Casper’s funeral. Jones

did not stop to talk to the men, but they called out to her boyfriend, Andra Coleman,

who also did not stop to talk. The next day, the day before the shooting, Jones saw

appellant walking alone around Arbor Court towards Edwards’s apartment. The

silver truck she had seen the day before was again parked in the parking lot. Jones

was away from Arbor Court most of the day of the shooting, and, by the time she




                                         4
returned home, the police had already arrived to investigate the shooting. She did

not see appellant, Bell, or Fields that day.

      Duke Catalon was visiting his cousin at the Arbor Court apartments on the

evening of the shooting. He was about to leave when he saw his friend, Terrell

Paynes, and they stopped to talk. Paynes had locked the keys inside Edwards’s car,

and Catalon tried to help them resolve this problem. This included making an

unsuccessful trip to a local Auto Zone to buy a “slim jim” to open the car door.

Catalon returned to Arbor Court, but he then left to go pick up his sister. Later in the

evening, on his way back to Arbor Court, Catalon texted Paynes to learn whether he

had been able to unlock Edwards’s car. Paynes responded that they were unable to

unlock the car. Catalon sent Paynes another text message, but Paynes did not

respond. Catalon called a friend of his, Myke Henix, who lived with Edwards, and

Henix gave Catalon Edwards’s cell phone number. Like Paynes, Edwards did not

answer his phone when Catalon called him. Catalon then called one of Paynes’s

friends, whose nickname was Smoke, and asked him if he knew what was going on.

Smoke told Catalon that he would investigate.3

      When Catalon arrived back at Arbor Court, he saw a brown Buick and some

men standing around it. While walking around the apartment complex, he saw a



3
      Smoke was the person who discovered Edwards, Paynes, and Kiara Jackson’s
      bodies in Edwards’s apartment and called 9-1-1.
                                           5
white truck4 parked near Edwards’s apartment. When asked if he saw any people

around the truck, Catalon testified that he saw one person running to the truck from

the direction of Edwards’s apartment, but he did not see this person actually leave

Edwards’s apartment. Catalon also stated that, while he was walking through the

apartment complex, he heard a loud noise, but he did not hear any gunshots. He

started running up the stairs to Edwards’s apartment, but then he saw Smoke, who

told him that everyone inside the apartment was dead. Catalon could no longer see

the white truck.

      Dontay Bradley lived with his cousin, Raveen Jones, at Arbor Court in March

2015. He had been visiting a cousin who lived in a nearby apartment when he came

back to Arbor Court on the evening of the shooting with his brother, Dominique

Bradley, and Jones’s boyfriend, Andra Coleman. When they got out of Coleman’s

car, a tan Buick, Bradley saw appellant, Bell, Fields, and a fourth person he did not

know standing around a truck and wearing all black. Someone standing around the

truck called out to Coleman, who went over to speak with them.

      Bradley, his brother, and Coleman all went back to Jones’s apartment and

stayed there until they heard gunshots, at which point Bradley went out onto his


4
      The State showed Catalon a picture of a truck and asked him if, during the
      investigation of the case, the prosecutors had shown him this picture before and if
      he recognized it as the truck he had seen at the Arbor Court apartments. Catalon
      replied that the truck in the picture was the one he saw at Arbor Court, and he agreed
      with the prosecutor that the truck was light silver, not white.
                                            6
balcony and saw three people wearing all black running “from upstairs” towards the

truck that he had seen earlier. It appeared that these three people were the same ones

he had seen around the truck when he arrived back at Arbor Court. Bradley could

not see the features of any of these three people, but he stated that one was tall and

one was short. He believed that appellant ran down the stairs first—followed by Bell

and then Fields, after several minutes—because appellant was the shortest of the

three people. When they reached the truck, none of these three people got into the

driver’s seat. Bradley saw the truck drive away from Arbor Court.

      Shakeitra Woods also lived at Arbor Court. She had been friends with

Edwards for years and was distantly related to appellant through marriage. Woods

and Edwards lived in the same building, but their apartments faced different parts of

the complex. On the evening of the shooting, Woods saw a lot of people wearing

blue latex gloves standing near a pedestrian gate in the complex, and she saw a gold

Buick pull up and stop near this group for a few minutes. After a little while, Woods

left her apartment to go visit the resident who lived in the apartment underneath

Edwards’s apartment. On the way to this apartment, she noticed a silver truck parked

near a stop sign, and she also noticed that the group of people she had seen earlier

were no longer in sight.

      When Woods arrived at the apartment below Edwards’s apartment, the

resident did not immediately answer the door, and when he did, he did not open the


                                          7
door all of the way, he had all the lights off, and he told Woods, “I don’t know what

they got going on upstairs; but you need to move around from right here.” Woods

could hear cabinets opening and being slammed closed in Edwards’s apartment.

Before she could go back to her apartment, someone ran down the stairs from

Edwards’s apartment towards the silver truck. Woods started walking back to her

apartment, but she kept her eyes looking down at the ground and her cell phone. She

heard one gunshot and then heard another person run down the stairs from Edwards’s

apartment carrying a bag.5 This person also ran towards the truck, and the truck fled

the apartments. Woods was not able to make an identification of any of the people

she saw in the Arbor Court parking lot or whom she saw running from Edwards’s

apartment, and she stated that she had never seen appellant at Arbor Court. Shortly

after the shooting, Woods and her boyfriend left Arbor Court; when they were near

the Hardy Toll Road, she saw the same silver truck she had seen at Arbor Court,

swerving through traffic and quickly driving east towards Highway 59.

      At the time of appellant’s trial, Andra Coleman was in custody awaiting

sentencing in federal court for robbery charges. The State had told Coleman that if




5
      The prosecutor asked Woods if she turned to look at the person who ran past her,
      and when she replied that she did not, the prosecutor asked how Woods knew that
      they were carrying a bag. She testified that she could hear the bag, stating, “I heard
      the bag rambling when they [were] running.”
                                            8
he provided truthful testimony in appellant’s trial, the prosecutors would tell the U.S.

Attorney’s Office and the federal district judge of his cooperation.

      Coleman knew Edwards and had sold guns to him on previous occasions. He

had also known appellant, Bell, and Fields since 2014, having met them through

Jones’s cousin Casper. Two days before the shooting at Edwards’s apartment,

Coleman saw appellant, Bell, and Fields at Arbor Court in a silver truck parked in

the parking lot near Edwards’s apartment. On the day of the shooting, Coleman again

saw appellant, Bell, and Fields at Arbor Court standing outside the same silver truck

and in the same general location. Appellant, Bell, and Fields, who were wearing all

black with black gloves, called out to Coleman, who walked over to speak with them.

Appellant asked Coleman, “What [do] you know about the drank man?” Coleman

clarified that appellant was referring to Edwards. Appellant told Coleman that he

“already went to go check it out” and “it’s good,” which Coleman interpreted as

appellant and his friends were intending to rob Edwards. Coleman told appellant

“that’s a suicide mission” and that he “sell[s] guns to these people.” Coleman then

left Arbor Court in his car, a tan Buick.

      When Coleman returned to Arbor Court, he was in his car near the apartment

complex office when he heard several gunshots. He could see the silver truck still

parked by a gate, and he saw three men running to the truck. He recognized these

men as appellant, Bell, and Fields. Coleman then left Arbor Court again, this time to


                                            9
pick up Jones. By the time he returned to Arbor Court with Jones, law enforcement

had arrived at Edwards’s apartment. Coleman spoke with Bell a few weeks later at

Haverstock Hills, and they discussed what had happened on the day of the shooting.

Bell seemed “happy” and “normal,” and he did not appear to be bothered by what

had occurred.

      Dequan Jackson, who, at the time of trial, was in custody at the Harris County

Jail for unrelated charges, and appellant are cousins. Both Dequan and appellant

were seventeen at the time of the shooting and twenty at the time of appellant’s trial.

Dequan was acquainted with Bell, Fields, Raveen Jones, and Jones’s cousin Casper.

On March 21, 2015, the day after the shooting at Edwards’s apartment, Dequan went

to Fields’s girlfriend’s apartment at Haverstock Hills. Appellant, Bell, and Fields

were all present. When Dequan went inside the apartment he saw “money flashing

around, drank on the counter.” Everyone present had money, and it was a lot more

money than any of Dequan’s friends typically had at any given time. Dequan asked

where the group got the money, but no one wanted to tell him.

      Later that morning, Dequan and appellant left the apartment to buy cigarettes

at another apartment in the Haverstock Hills complex. Dequan again asked appellant

where they had gotten the money and the drank. Appellant stated, “I caught a body,”

which Dequan interpreted to mean that appellant had killed someone. Appellant also

told him, “I ran in. We ran in. Like, G [Fields] put us on a lick,” meaning a robbery.


                                          10
Appellant clarified that it was Bell, Fields, and he who were involved, and he told

Dequan that “[t]hey ran in, started shooting.” Dequan testified, “They just start

shooting. [Appellant] went inside the room and started shooting the female [Kiara

Jackson], and [Bell] was over the counter shooting the dude [Edwards] that was in

the kitchen.” Appellant also told Dequan that he had taken a handgun from

Edwards’s apartment, and Fields had taken money and drank. Appellant told Dequan

that this occurred at Arbor Court, but he did not provide any further details. For

about two or three months around the time of the shooting, Dequan had seen

appellant driving a silver truck.6 Appellant would typically park this truck at a

daycare center next to the Haverstock Hills complex.

      Near the end of the State’s direct examination of Dequan, the prosecutor

approached the bench and stated that she intended to question Dequan about an

incident that had occurred in December 2017 at the Harris County Jail, in which

appellant and several other people entered Dequan’s cell and appellant assaulted

Dequan and called him a “snitch.” Defense counsel objected to the admissibility of

this evidence.7 Dequan testified concerning this incident outside the presence of the



6
      The prosecutor showed Dequan the same picture of a silver truck that she had shown
      Duke Catalon, and Dequan identified it as the truck he had seen appellant driving.
7
      The trial court eventually allowed the State to pursue this line of questioning, and
      Dequan testified before the jury concerning this altercation with appellant. Dequan
      also testified that, two days before his testimony in appellant’s trial, he was in the
                                            11
jury. Defense counsel then stated that he wished to conduct a voir dire examination

of Dequan outside the presence of the jury concerning his competency as a witness,

based upon Dequan’s acknowledgement that he had not completed ninth grade and

“based on his mannerisms and answers on this.” The trial court allowed defense

counsel to conduct this questioning.

      Dequan acknowledged that he had been enrolled in special education classes

before he left school in the ninth grade. He also testified that he receives social

security disability payments because he has been diagnosed with ADHD and bipolar

disorder. He stated that his counsel for his unrelated pending charges was aware of

this diagnosis, but he had never informed the prosecutors in appellant’s trial of his

mental health history, and he was not sure if his counsel had informed them. Dequan

testified that he takes medication for both ADHD and bipolar disorder, but he was

not taking medication in March 2015, when the shooting occurred.

      Defense counsel also questioned Ray Castro, Dequan’s appointed counsel,

concerning Dequan’s mental health history and competency. Castro was aware that

Dequan had been diagnosed with bipolar disorder. Castro also testified that, early in

2016, he had had Dequan examined for competency to stand trial in his pending

cases, and Dequan was found competent to stand trial. The trial court admitted a



      tunnel waiting to go to the courthouse from the jail when appellant came out of a
      holding cell and told him, “You’re a snitch. When I get out, I’m going to kill you.”
                                           12
copy of the report finding Dequan competent. The trial court also stated that it saw

“no further need to have another competency examination” of Dequan because

Dequan had already been found competent and the court’s opinion was “going to be

that he is competent to testify based upon this report that has been presented.”

      The next morning, defense counsel again raised the question of Dequan’s

competency as a witness and moved for a mistrial to “get the [mental health] records

that we need to effectively deal with this and perhaps have a pretrial determination

if [Dequan’s] competency returns.” Defense counsel also orally requested a three-

day continuance to allow time to obtain and review Dequan’s mental health records,

and counsel requested “wide latitude” in conducting cross-examination of Dequan

on these issues. After hearing further testimony from Castro outside the presence of

the jury concerning Dequan’s competency and his behavior when he was on and off

his medication, as well as testimony from Dequan’s mother concerning his mental

health history, the trial court denied appellant’s motion for mistrial and motion for

continuance. The trial court granted the request for wide latitude on cross-

examination, and defense counsel was able to question Dequan in front of the jury

concerning his diagnoses, his medications, the fact that he was not taking his

medications at the time of the shooting, and the fact that he had consumed codeine

on the day he spoke with appellant about the shooting.




                                         13
      On March 22, 2015, two days after the shooting, Harris County Sheriff’s

Office Deputy R. Burgess was dispatched to a daycare center located next to the

Haverstock Hills apartment complex concerning a silver truck that needed to be

towed from the location. Burgess was not involved in conducting an inventory

search or any processing of the truck, but he ensured that the truck was towed to a

lot owned by the Harris County Sheriff’s Office. Burgess identified a picture of the

truck that he had towed to the Sheriff’s Office lot. This truck was the same truck that

Duke Catalon identified as having been present at Arbor Court on the evening of the

shooting and that Dequan Jackson identified as having been driven by appellant

around the time of the shooting.

      During the inventory search of the truck, officers recovered, among other

things, a cigarette butt and a McDonald’s receipt dated March 21, 2015. Officers

also dusted and swabbed various surfaces of the truck in the hope of recovering

fingerprints or a DNA profile. Deputy D. Payavla compared appellant’s known

fingerprint to a fingerprint observed on a seatbelt buckle of the truck and concluded

that the fingerprints matched. Dustin Foley, a DNA analyst with the Harris County

Institute of Forensic Sciences, testified that the swab of the interior passenger door

handle of the truck had a DNA profile with a major and minor contributor to the

mixture, and appellant could not be excluded as a possible major contributor.

Appellant also could not be excluded as the major contributor to a DNA mixture


                                          14
found on a swab of the passenger seat. Additionally, appellant could not be excluded

as the sole contributor of the DNA profile found on the cigarette butt recovered from

the truck.

      Ryan Hookano, also with the Harris County Institute of Forensic Sciences,

examined the cartridge casings and bullet fragments recovered from Edwards’s

apartment and from the complainants’ autopsies. He testified that of the six cartridge

casings recovered from Edwards’s apartment, five were fired from the same firearm,

a nine millimeter semiautomatic firearm. The remaining cartridge casing recovered

from the apartment was also fired from a nine millimeter semiautomatic firearm, but

upon examining the mark that the firing pin made on the cartridge, Hookano

determined that this casing was fired from a different handgun.

      Hookano also examined the bullet fragments recovered during the

complainants’ autopsies. The fragments recovered from the autopsies of Paynes and

Kiara Jackson were both consistent with being from “the .38 caliber family” and

fired from a nine millimeter semiautomatic firearm, but two of the fragments

recovered during Edwards’s autopsy were from “the .32 caliber family” and were

consistent with being fired from a revolver. Hookano stated that those two fragments

recovered from Edwards’s autopsy could not have been fired from the firearms used

to shoot Paynes and Jackson. Three other fragments recovered during Edwards’s

autopsy were from “the .38 caliber family,” but had different types of markings from


                                         15
the fragments recovered from the autopsies of Paynes and Jackson. Hookano thus

concluded that it appeared that three different firearms were used during this

shooting. No firearms were recovered in this case, so Hookano could not compare

the cartridge casings recovered from the apartment to casings fired from a known

handgun.

      Appellant was indicted for capital murder, specifically, for causing the deaths

of three individuals during the same criminal transaction. The jury charge included

an instruction on the law of parties. Appellant requested that the trial court also

include an instruction on the lesser-included offense of murder, but the court denied

this instruction. The jury found appellant guilty of the charged offense of capital

murder. Because appellant was seventeen years old at the time of the offense and the

State did not seek the death penalty, appellant’s punishment was automatically

assessed at confinement for life with the possibility of parole after forty years. This

appeal followed.

                     Effective Cross-Examination of Witness

      In his first issue, appellant contends that the trial court erred when it denied

his motion for mistrial, made when defense counsel learned during trial that Dequan

Jackson had a history of mental illness, because counsel was unable to effectively

cross-examine Dequan regarding his mental health history.




                                          16
A.    Standard of Review and Governing Law

      “A mistrial is the trial court’s remedy for improper conduct that is ‘so

prejudicial that expenditure of further time and expense would be wasteful and

futile.’” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (quoting Ladd

v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). Only in extreme circumstances,

when the prejudice from the improper conduct is incurable, will a mistrial be

required. Id.; Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)

(“Mistrial is appropriate for only ‘highly prejudicial and incurable errors.’”).

Whether an error requires a mistrial must be determined by the particular facts of the

case. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We review a trial

court’s ruling on a motion for mistrial for an abuse of discretion. Hawkins, 135

S.W.3d at 77. We view the evidence in the light most favorable to the trial court’s

ruling, considering only the arguments before the court at the time of the ruling.

Ocon, 284 S.W.3d at 884. We must uphold the trial court’s ruling if it was within

the zone of reasonable disagreement. Id.

      Generally, every person is competent to testify unless the Rules of Evidence

provide otherwise. TEX. R. EVID. 601(a). Rule 601(a) provides that “[a] person who

is now insane or was insane at the time of the events about which the person is called

to testify” and a person “whom the court examines and finds lacks sufficient intellect




                                           17
to testify concerning the matters in issue” are considered incompetent to testify as

witnesses. Id.

      Texas Rule of Evidence 611 provides that “[a] witness may be cross-examined

on any relevant matter, including credibility.” TEX. R. EVID. 611(b); see TEX. CODE

CRIM. PROC. ANN. art. 38.04 (providing that jury is exclusive judge of facts proved

and of weight to be given to testimony). In determining the credibility of a witness

and the weight to give to his testimony, the jury is entitled to hear evidence

concerning the witness’s mental status, mental capacity, and the extent of any mental

impairment of the witness. See Scott v. State, 162 S.W.3d 397, 401 (Tex. App.—

Beaumont 2005, pet. ref’d). The defendant’s right of cross-examination thus

includes “the right to impeach the witness with evidence that might go to any

impairment or disability affecting the witness’s credibility.” Id.; see also Saglimbeni

v. State, 100 S.W.3d 429, 435 (Tex. App.—San Antonio 2002, pet. ref’d) (“The right

to cross-examination includes ‘the right to impeach the witness with relevant

evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of

character affecting credibility, or evidence that might go to any impairment or

disability affecting the witness’s credibility.”).

      The Court of Criminal Appeals, in a 1987 case, addressed the propriety of

cross-examining a State’s witness concerning her mental health history and stated:

      Cross-examination of a testifying State’s witness to show that the
      witness has suffered a recent mental illness or disturbance is proper,
                                           18
      provided that such mental illness or disturbance is such that it might
      tend to reflect upon the witness’s credibility. However, simply because
      the term “mental illness” is “relative in force, there being a wide range
      of severity,” from mere “nervousness and the mild transient situational
      personality disorder, through the psycho neuroses, to the thoroughly
      debilitating psychoses,” the mere fact that the State’s testifying witness
      has in the recent past suffered or received treatment for a mental illness
      or disturbance does not, for this reason alone, cause this kind of
      evidence to become admissible impeachment evidence. If the witness
      is shown to have been suffering from a recent mental illness, prior to
      the occurrence of the event in question, and such might be considered
      a “persistent disabling disturbance of his mental and/or emotional
      equilibrium, manifested through persistent maladjustment and more or
      less irrational, even bizarre behavior and speech” whether psychic or
      organic in origin, then, of course, the trial judge should permit the jury
      to hear this kind of evidence. On the other hand, if the witness’s mental
      illness or mental disturbance occurred in the remote past, and there is
      no showing that such has been revived, the fact that the witness has
      suffered in the remote past a mental illness or mental disturbance should
      not be admitted into evidence because such would probably be totally
      irrelevant and immaterial to the defendant’s trial.

Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987) (citations omitted); Perry

v. State, 236 S.W.3d 859, 867 (Tex. App.—Texarkana 2007, no pet.) (following

Virts and stating that “[a]vailable, relevant adverse evidence that might affect”

witness’s credibility, such as co-defendant’s history of hallucinations, “should be

admitted so that the jury might use it in making the determination of how much

weight it should give the witness’ testimony”).

B.    Analysis

      Here, after Dequan Jackson testified on direct examination concerning his

encounter and conversation with appellant at the Haverstock Hills apartment


                                         19
complex the day after the shooting, the State and defense counsel questioned Dequan

outside the presence of the jury concerning an incident that occurred in the Harris

County Jail in December 2017, in which appellant and others entered Dequan’s cell,

called him a “snitch,” and assaulted him. The trial court requested that counsel

provide relevant case law before ruling on the admissibility of this evidence. Defense

counsel then referred to Dequan’s testimony on direct examination that he had not

finished the ninth grade and stated that “based on his mannerisms and answers on

this, I’d like to conduct some voir dire outside the presence of the jury now as to his

competency.” The trial court allowed this questioning to occur.

      During this cross-examination, Dequan testified that he had taken special

education classes in school, that he stopped taking those classes in seventh grade,

and that he stopped going to school in ninth grade. He did not know if he had ever

taken an IQ test, but he testified that he had never been diagnosed with an intellectual

disability. He testified that he received social security disability checks because he

has bipolar disorder, for which he takes medication. Dequan, who was represented

by counsel for pending unrelated charges, stated that his counsel was aware of his

bipolar diagnosis, but he did not know if his counsel had informed the State of this

diagnosis, and he himself had not told the prosecutors during his meetings with them.

He also testified that he had been diagnosed with ADHD and that he currently takes




                                          20
the medication Celexa. He testified that he was not taking medication in 2015, when

the shooting occurred.

      Defense counsel then objected to Dequan’s testimony on the basis that he was

never given notice that Dequan had a mental disorder or that he received social

security disability payments, which constitutes “valid impeachment information as

to his perception and memory.” Defense counsel also requested that the trial court

issue an order allowing him access to Dequan’s “medical records from both the jail

for the last couple of years and the school.” The trial court did not immediately rule

on this objection and request.

      Defense counsel questioned Dequan’s counsel, Ray Castro, outside the

presence of the jury concerning his knowledge of Dequan’s mental health history

and competency. Castro testified that he was aware Dequan had been diagnosed with

bipolar disorder and that he had received information concerning Dequan’s mental

health from Dequan himself, as well as from his mother. Castro testified that, early

in his representation of Dequan on his pending charges, he had had Dequan

examined for competency to stand trial. The trial court admitted a copy of the

competency report finding Dequan competent to stand trial for his pending charges.

      Defense counsel asked for a recess, stating that he needed the opportunity to

“either bring in the doctor or get other information, including family history, that

indicates a history of problems.” Counsel reiterated that he had been unaware that


                                         21
Dequan had any mental disabilities and stated that the evidence he sought to obtain

was relevant “to whether or not he should be allowed to testify.” The trial court

stated:

      I can tell you right now that my opinion is going to be that [Dequan] is
      competent to testify based upon this report that has been presented to
      me in Defendant’s Exhibit 1. Because that’s what it says. It says he is
      competent. So, I see no further need to have another competency
      examination of him or have a competency trial on this witness.

The trial court agreed with defense counsel that a witness’s mental health disorders

and medications are appropriate impeachment evidence and stated, “I’m not saying

you couldn’t cross-examine [Dequan] about those things.” The trial court deferred

ruling on this issue until the next morning, and testimony resumed with a different

witness.

      The next morning, defense counsel stated:

      Yesterday I had asked to voir dire a witness, Dequan Jackson. And
      during that voir dire, we discovered that Mr. Jackson had fairly
      extensive mental health history. I think that was a surprise to
      everybody. And in trying to cope with that, I’m going to ask the Court
      for a series of relief and order, and I believe that how you rule on each
      of those will be important.
      ....
      The basic outline of this, I believe, is that this young man suffers from
      a series of mental health disorders, including a long history, according
      to the records that we had on Defense Exhibit 2 [a “Special Needs
      Response Form” from the Harris County Jail that listed Dequan’s
      medications and past diagnoses dating back to 2006] of state mental
      health hospitalization.



                                         22
      So, my first request for relief, because we can’t un-ring the bell on this
      from what the jury heard, is to ask for a mistrial and then set this back
      and we can go perform the—get the records that we need to effectively
      deal with this and perhaps have a pretrial determination if [Dequan’s]
      competency returns.
      The Court has the authority to do that, and I realize that it’s an
      extraordinary remedy, but I don’t see a way to get around the fact that
      the jury has heard fairly damaging testimony to my client from the
      witness whose, I believe, mental health was in question and was not
      revealed until after that direct testimony.
      So, we would first ask for a mistrial on that issue.

In the alternative, defense counsel orally requested a three-day continuance to allow

him to obtain Dequan’s mental health records so he could investigate and cross-

examine Dequan on the issues of his past diagnoses, his medications, and his ability

to recollect events. Defense counsel also requested that the trial court allow him

“wide latitude” in cross-examining Dequan to further investigate these issues.

      Before ruling on defense counsel’s requests, the trial court heard further

testimony from Castro outside the presence of the jury, as well as from Shauneka

Jackson, Dequan’s mother. Castro testified that it could be difficult to have a

conversation with Dequan when he was not on medication, and he “had to sort of

conduct a discussion very carefully with him.” Castro did not believe that Dequan

had any problems understanding the proceedings, although it was more difficult for

him to understand when he was not taking his medication. Castro had not retained a

mental health professional to examine Dequan for the purpose of discovering

potential mitigating evidence. He testified that, every time he met with Dequan, he
                                         23
would ask Dequan if he was taking his medication and Dequan would respond

affirmatively. Castro believed that Dequan was truthful with him. Castro had met

with Dequan three or four times in the months leading up to appellant’s trial, and

Castro had had no problems communicating with Dequan. Castro believed that

Dequan was taking his medication, and he had not observed Dequan exhibit “any

additional signs or symptoms of other mental health issues.” Castro agreed with the

State that, in his meetings with the prosecutors, Dequan could relay the events

surrounding the shooting, and he had no concerns about Dequan’s understanding of

the events that had happened.

      Shauneka Jackson testified that Dequan was diagnosed with ADD when he

was a small child and received special education accommodations to assist with this

diagnosis. She stated that, while Dequan had seen mental health professionals, he

had never been admitted to a mental health facility. She took Dequan off his

medication when he was around fifteen years old, or around 2013, and she had not

had any concerns about his ability to function since then. She stated that Dequan can

communicate and understand very well. On questioning from the trial court,

Shauneka testified that, at the time of the shooting, Dequan was not taking

medication, but she had not noticed him having problems remembering things or

communicating. After hearing Shauneka’s testimony, the trial court denied defense

counsel’s motion for mistrial.


                                         24
      The State argues that, on appeal, appellant “does not point to any particular

error that serves as the basis for mistrial.” We agree. Appellant moved for a mistrial

after counsel conducted a voir dire examination of Dequan concerning his

competency as a witness and after discovering that Dequan had a history of mental

illness, including diagnoses of bipolar disorder and ADHD. The trial court expressly

found that Dequan was competent to testify as a witness, and appellant does not

challenge that determination on appeal. Appellant cites to no authority holding that

the discovery that a witness has a history of mental health issues constitutes the type

of error that is so prejudicial “that expenditure of further time and expense would be

wasteful and futile” and a mistrial is required. See Hawkins, 135 S.W.3d at 77. The

fact that a witness has a history of mental illness does not automatically make him

incompetent to testify, and, under some circumstances, his history of mental illness

may be a proper subject of cross-examination to the extent it impacts his credibility.8

See Virts, 739 S.W.2d at 30; Perry, 236 S.W.3d at 867; Scott, 162 S.W.3d at 401.

      Appellant did not argue that evidence of Dequan’s mental health history had

been improperly withheld by the State. Appellant made an unsworn oral motion for



8
      Although it occurred after the trial court denied appellant’s motion for mistrial,
      defense counsel was able to cross-examine Dequan on his mental health history,
      including his diagnoses of bipolar and ADHD, his use of special education services
      while he was in school, the medication he had taken in the past, the fact that he was
      not taking his prescribed medication at the time of the shooting, and the fact that he
      had consumed codeine on the day he spoke with appellant about the shooting.
                                            25
continuance to allow defense counsel time to obtain and review Dequan’s mental

health records, but, as appellant himself acknowledges on appeal, the Court of

Criminal Appeals has held that a sworn written motion for continuance is required

to preserve for appellate review any error concerning the trial court’s denial of a

request for continuance. See Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim.

App. 2009) (“[I]f a party makes an unsworn oral motion for a continuance and the

trial judge denies it, the party forfeits the right to complain about the judge’s ruling

on appeal.”). Appellant has therefore failed to preserve any complaint that the trial

court erred in denying his request for a continuance related to reviewing Dequan’s

mental health records.

      We conclude that, at the time appellant moved for a mistrial, no error had

occurred relating to allowing Dequan Jackson to testify. We therefore hold that the

trial court did not abuse its discretion in denying appellant’s motion for mistrial. See

Ocon, 284 S.W.3d at 884 (stating that whether error requires mistrial depends on

particular facts of case and that, in reviewing trial court’s ruling on mistrial, we

consider only arguments before trial court at time of ruling).

      We overrule appellant’s first issue.

                         Lesser-Included Offense Instruction

      In his second issue, appellant contends that the trial court erred when it refused

his request for a jury instruction on the lesser-included offense of murder.


                                          26
Specifically, appellant argues that while there is evidence that he killed Kiara

Jackson, “[t]here was no other direct evidence that established conclusively that the

Appellant was principally responsible for the intentional or knowing killings” of

Demarquise Edwards and Terrell Paynes, and, thus, the offense of murder was a

valid and rational alternative to the charged offense of capital murder.

A.    Governing Law

      The Code of Criminal Procedure provides that an offense is a lesser-included

offense of a charged offense if:

      (1)    it is established by proof of the same or less than all the facts
             required to establish the commission of the offense charged;

      (2)    it differs from the offense charged only in the respect that a less
             serious injury or risk of injury to the same person, property, or
             public interest suffices to establish its commission;

      (3)    it differs from the offense charged only in the respect that a less
             culpable mental state suffices to establish its commission; or

      (4)    it consists of an attempt to commit the offense charged or an
             otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09; Ritcherson v. State, 568 S.W.3d 667, 670

(Tex. Crim. App. 2018).

      We use a two-step analysis to determine if a defendant is entitled to a jury

instruction on a lesser-included offense. Ritcherson, 568 S.W.3d at 670. First, we

compare the statutory elements of the alleged lesser offense and the statutory

elements of the charged offense plus any descriptive averments in the indictment.

                                          27
Id. at 670–71; Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012)

(stating that this step of analysis is question of law that does not depend on evidence

raised at trial). Second, there must be evidence from which a rational jury could find

the defendant guilty only of the lesser offense. Ritcherson, 568 S.W.3d at 671;

Cavazos, 382 S.W.3d at 383 (stating that second step of analysis is question of fact

and is based on evidence presented at trial). This step requires evidence that

(1) directly refutes or negates other evidence establishing the greater offense and

raises the lesser-included offense or (2) is susceptible to different interpretations,

one of which refutes or negates an element of the greater offense and raises the lesser

offense. Ritcherson, 568 S.W.3d at 671.

      Evidence raising the lesser offense “must be affirmatively in the record,”

meaning a defendant is not entitled to a lesser-included offense instruction based on

the absence of evidence, and the evidence must be “directly germane to the lesser-

included offense.” Id. In determining if there is evidence raising the lesser offense,

we consider all of the evidence admitted at trial, not just the evidence presented by

the defendant. Id. We cannot “pluck[] certain evidence from the record and

examin[e] it in a vacuum.” Id. at 677 (quoting Enriquez v. State, 21 S.W.3d 277, 278

(Tex. Crim. App. 2000)).

      If there is more than a scintilla of evidence raising the lesser offense and

negating or rebutting an element of the greater offense, the defendant is entitled to


                                          28
an instruction on the lesser offense. Id. at 671. “It does not matter whether the

evidence [raising the lesser offense] is controverted or even credible.” Id.; Cavazos,

382 S.W.3d at 383 (stating that defendant is entitled to lesser-included offense

instruction if some evidence from any source raises fact issue on whether defendant

is guilty only of lesser offense, regardless of whether evidence is weak, impeached,

or contradicted). Although this threshold is low, “it is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense”; instead, there must be

some evidence “directly germane to the lesser-included offense” for the instruction

to be warranted. Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011).

      However, the evidence produced at trial must be sufficient to establish the

lesser offense as a “valid, rational alternative” to the charged offense. Cavazos, 382

S.W.3d at 385 (quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007));

see Wortham v. State, 412 S.W.3d 552, 557 (Tex. Crim. App. 2013). “Meeting this

threshold requires more than mere speculation—it requires affirmative evidence that

both raises the lesser-included offense and rebuts or negates an element of the greater

offense.” Cavazos, 382 S.W.3d at 385; see Wortham, 412 S.W.3d at 558. If the

defendant either presents evidence that he committed no offense or presents no

evidence, and there is no other evidence showing that he is guilty only of the lesser

offense, then a lesser-included offense instruction is not required. See Le v. State,

479 S.W.3d 462, 473 (Tex. App.—Houston [14th Dist.] 2015, no pet.).


                                          29
B.    Analysis

      In this case, to prove that appellant committed the offense of capital murder

as charged in the indictment, the State was required to establish that appellant, during

the same criminal transaction, intentionally and knowingly caused the death of Kiara

Jackson by shooting her with a firearm, that he intentionally and knowingly caused

the death of Demarquise Edwards by shooting him with a firearm, and that he

intentionally and knowingly caused the death of Terrell Paynes by shooting him with

a firearm. See TEX. PENAL CODE ANN. § 19.03(a)(7). A person commits the offense

of murder if he (1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual; or (3) commits or attempts to

commit a felony and, in the course of and in furtherance of the commission or

attempt, or in immediate flight from the commission or attempt, he commits or

attempts to commit an act clearly dangerous to human life that causes the death of

an individual. See id. § 19.02(b).

      Appellant does not raise a challenge to the first step of the lesser-included

offense analysis—whether, when comparing the statutory elements of the lesser and

charged offenses and the descriptive averments in the indictment for the charged

offense, murder is a lesser-included offense of capital murder. See, e.g., Cannon v.

State, 401 S.W.3d 907, 911 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)


                                          30
(holding that murder, as defined by Penal Code section 19.02(b)(2), is lesser-

included offense of capital murder); see also Hudson v. State, 394 S.W.3d 522, 525

(Tex. Crim. App. 2013) (acknowledging same). We therefore turn to whether the

evidence presented at trial entitled appellant to a jury instruction on the lesser-

included offense of murder.

      As evidence raising the lesser offense of murder, appellant points to Dequan

Jackson’s testimony that appellant told him that appellant “caught a body,” meaning

that he killed someone, and that he shot the complainant who was found in the

bedroom—Kiara Jackson—while Bell shot Demarquise Edwards in the kitchen.

Appellant argues that there was no direct evidence conclusively establishing that

appellant “was principally responsible for the intentional or knowing killings” of

Edwards and Paynes, as required to establish capital murder. Instead, the evidence

established only that appellant was the principal actor in shooting Kiara Jackson. He

therefore argues that because there is evidence that he shot and killed only one of

the complainants, murder is a “valid, rational alternative” to the charged offense of

capital murder. We disagree.

      In arguing that the record contains no evidence that he was “principally

responsible” for the deaths of Edwards and Paynes, and thus that he is entitled to an

instruction on the lesser-included offense of murder, appellant fails to take into

consideration the law of parties. Under the law of parties, a person is criminally


                                         31
responsible for an offense committed by the conduct of another if, acting with intent

to promote or assist the commission of the offense, the person solicits, encourages,

directs, aids, or attempts to aid the other person to commit the offense. TEX. PENAL

CODE ANN. § 7.02(a)(2). The Court of Criminal Appeals has stated:

      If it is proper to take a legal theory of liability into account for the
      purpose of determining the sufficiency of the evidence, and the
      evidence is found to be sufficient to support that theory, then it is
      necessarily proper to take it into account for the purpose of determining
      whether to submit a lesser-included offense.

Yzaguirre v. State, 394 S.W.3d 526, 529 (Tex. Crim. App. 2013); see Young v. State,

428 S.W.3d 172, 177 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). In

Yzaguirre, the court concluded that because the trial court included the law of parties

in the abstract portion of the jury charge and it was supported by sufficient evidence

presented at trial, “it was an issue that should be taken into account for the purpose

of determining whether to submit a lesser-included offense.” 394 S.W.3d at 531. It

held that because there was no evidence, in light of the application of the law of

parties, that the defendant in that case committed only the lesser offense of robbery,

as opposed to the charged offense of aggravated robbery, the trial court correctly

refused to submit an instruction on the lesser-included offense of robbery. Id.; see

Young, 428 S.W.3d at 177–78 (taking law of parties into consideration when

determining that no evidence was presented that defendant was guilty only of lesser




                                          32
offense of robbery and, therefore, that defendant was not entitled to lesser-included

offense instruction).

      The jury charge in this case included an instruction on the law of parties, and

the evidence presented at trial supported appellant’s conviction for capital murder

under the law of parties. Dequan Jackson testified that, the day after the shootings,

he met up with appellant, Bell, and Fields at an apartment at Haverstock Hills and

they all had stacks of money and “drank.” During a later conversation that occurred

while walking around Haverstock Hills, Dequan asked appellant where the money

and drank came from, and appellant told him, “I caught a body,” which Dequan

interpreted to mean that appellant had killed someone. Appellant told him, “We ran

in. Like, G [Fields] put us on a lick,” meaning that the group had planned to rob

someone. Appellant told Dequan that Bell and Fields were involved and that “[t]hey

ran in, started shooting.” Dequan testified: “They just start shooting. [Appellant]

went inside the room and started shooting the female [Kiara Jackson], and [Bell] was

over the counter shooting the dude [Demarquise Edwards] that was in the kitchen.”

Dequan stated that appellant told him that he took a handgun from the apartment,

Bell “grabbed some of the drank and the money,” and the group left Edwards’s

apartment. Dequan and appellant returned to the Haverstock Hills apartment, and

Dequan saw the gun that appellant had taken from Edwards’s apartment.




                                         33
      Other evidence in the record, aside from Dequan Jackson’s testimony, also

supports the law of parties. Although there were no eyewitnesses to the shooting

itself, Bradley and Coleman observed appellant, Bell, and Fields together at the

Arbor Court apartments shortly before the shooting occurred. Bradley and Coleman

also witnessed three men fleeing from the direction of Edwards’s apartment after the

shooting and identified appellant as one of these men. Comparisons of the fired

cartridge casings recovered from the scene and the projectiles recovered during the

autopsies of the complainants reflected that three different firearms were used during

the shooting.

      Appellant has identified no evidence in the record suggesting that he was not

acting in concert with Bell and Fields when the men entered Edwards’s apartment

and shot Edwards, Paynes, and Kiara Jackson. Taking into account the law of parties,

as we must when determining if the trial court properly denied a requested

instruction on a lesser-included offense, the testimony from Dequan Jackson that

appellant shot only Kiara Jackson, but not Paynes or Edwards, does not constitute

affirmative evidence that refutes or negates the charged offense of capital murder

and raises the lesser offense of murder. See Ritcherson, 568 S.W.3d at 671; see also

Yzaguirre, 394 S.W.3d at 531 (concluding that because law of parties was included

in abstract portion of charge and was supported by evidence at trial, trial court




                                         34
properly took this theory of liability into account when refusing to submit instruction

on lesser-included offense); Young, 428 S.W.3d at 177–78 (concluding same).

      Under the facts of this case, evidence that appellant told Dequan Jackson that

he shot Kiara Jackson and that Bell shot Edwards does not constitute evidence from

which a rational jury could find appellant guilty only of the lesser offense of murder.

See Ritcherson, 568 S.W.3d at 671. Thus, in this case, the evidence presented at trial

is not sufficient to establish murder as a “valid, rational alternative” to the charged

offense of capital murder. Cavazos, 382 S.W.3d at 385. We therefore hold that the

trial court did not err when it refused to submit an instruction on the lesser-included

offense of murder. See Ritcherson, 568 S.W.3d at 671.

      We overrule appellant’s second issue.

         Sentencing Scheme for Juvenile Defendants in Capital Cases

      In his third issue, appellant contends that Texas’s statutory sentencing scheme

providing that juvenile defendants convicted of capital felonies are automatically

sentenced to confinement for life with the possibility of parole after forty years is

facially unconstitutional based on the United States Supreme Court’s decision in

Miller v. Alabama. Specifically, appellant argues that this sentencing scheme denies

him procedural due process because he is not allowed an individualized sentencing

hearing, nor is he allowed any meaningful opportunity for release from confinement.




                                          35
      In Miller v. Alabama, the United States Supreme Court addressed whether

statutory sentencing schemes that mandated a sentence of confinement for life

without the possibility of parole for juvenile defendants convicted of capital felonies

violated the Eight Amendment’s prohibition of cruel and unusual punishment. See

567 U.S. 460, 465 (2012). The Miller Court, relying on prior cases involving

sentencing practices for juvenile defendants in capital felonies, noted that “children

are constitutionally different from adults for purposes of sentencing” and that,

because juvenile defendants “have diminished capacity and greater prospects for

reform,” they are “less deserving of the most severe punishments.” Id. at 471

(quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). The Court stated:

      [C]hildren 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].”

Id. (quoting Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). “[T]he distinctive

attributes of youth diminish the penological justifications for imposing the harshest

sentences on juvenile offenders, even when they commit terrible crimes,” as “the

case for retribution is not as strong with a minor as with an adult,” and the goal of

rehabilitation of a juvenile defendant “could not justify” a sentence of life without


                                          36
parole because it “reflects ‘an irrevocable judgment about [an offender’s] value and

place in society,’ at odds with a child’s capacity for change.” Id. at 472–73 (quoting

Graham, 560 U.S. at 71, 74).

      The mandatory sentencing schemes at issue in Miller—requiring a juvenile

defendant convicted of a capital felony to be sentenced to confinement for life

without the possibility of parole—prevented the sentencing authority from taking

into account considerations such as the defendant’s youth, which impermissibly

prohibited the sentencing authority “from assessing whether the law’s harshest term

of imprisonment proportionately punishes a juvenile offender.” Id. at 474. The Court

also noted that “mandatory penalties, by their nature, preclude a sentencer from

taking account of an offender’s age and the wealth of characteristics and

circumstances attendant to it.” Id. at 476. The Court stated:

      Mandatory life without parole for a juvenile precludes consideration of
      his chronological age and its hallmark features—among them,
      immaturity, impetuosity, and failure to appreciate risks and
      consequences. It prevents taking into account the family and home
      environment that surrounds him—and from which he cannot usually
      extricate himself—no matter how brutal or dysfunctional. It neglects
      the circumstances of the homicide offense, including the extent of his
      participation in the conduct and the way familial and peer pressures
      may have affected him. Indeed, it ignores that he might have been
      charged and convicted of a lesser offense if not for incompetencies
      associated with youth—for example, his inability to deal with police
      officers or prosecutors (including a plea agreement) or his incapacity to
      assist his own attorneys.




                                          37
Id. at 477–78. The Court therefore held that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders,” noting that such a sentencing scheme, which “mak[es] youth

(and all that accompanies it) irrelevant to imposition of that harshest prison

sentence,” poses “too great a risk of disproportionate punishment.” Id. at 479.

      Although Texas requires a sentence of life without parole for persons who are

eighteen years of age or older when they commit capital felonies and the State has

not sought the death penalty, it does not require this sentence for juvenile defendants.

Instead, Penal Code section 12.31(a)(1) provides that a person convicted 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 . . . life, if the

individual committed the offense when younger than 18 years of age.” Compare

TEX. PENAL CODE ANN. § 12.31(a)(1) (emphasis added) with id. § 12.31(a)(2) (“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 . . . life without parole, if the individual committed the

offense when 18 years of age or older.”) (emphasis added); see Ex parte Maxwell,

424 S.W.3d 66, 68 n.3 (Tex. Crim. App. 2014) (setting out history of section

12.31(a) and its amendments). Government Code section 508.145, which addresses

an individual’s eligibility for release on parole, provides that an individual serving a


                                          38
life sentence under Penal Code section 12.31(a)(1) for a capital felony, that is, an

individual who was younger than eighteen years old at the time of the offense, “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.” TEX. GOV’T

CODE ANN. § 508.145(b).

      The Court of Criminal Appeals has addressed whether Texas’s statutory

scheme—requiring that juvenile defendants convicted of capital felonies be

sentenced to confinement for life with the possibility of parole after serving forty

years—violates Miller because the Texas scheme does not allow for the

individualized sentencing of juvenile defendants. In Lewis v. State, the Court of

Criminal Appeals discussed Miller and stated that Miller’s holding is “narrow” and

that juvenile defendants “are still constitutionally eligible for life without parole, but

Miller requires an individualized determination that a defendant is ‘the rare juvenile

offender whose crime reflects irreparable corruption.’” 428 S.W.3d 860, 863 (Tex.

Crim. App. 2014) (quoting Miller, 567 U.S. at 479–80). The court then noted that

Miller “does not forbid mandatory sentencing schemes.” Id. It stated that the

statutory schemes at issue in Miller were unconstitutional because they “denied

juveniles convicted of murder all possibility of parole, leaving them no opportunity

or incentive for rehabilitation,” but a sentence of life in prison with the possibility

for parole—required by Penal Code section 12.31(a)(1)—“leaves a route for juvenile


                                           39
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.” Id.

      The Court of Criminal Appeals thus rejected Lewis’s argument that Miller

requires an individualized sentencing determination for all juvenile defendants

convicted of capital felonies. Id. Instead, Miller “requires an individualized hearing

only when a juvenile can be sentenced to life without the possibility of parole,”

which is no longer possible under Texas’s sentencing scheme. Id. at 863–64. The

court also rejected the argument that Miller should be read to apply to whatever the

state legislature determines to be the “harshest possible penalty for juveniles,” even

if that is life with the possibility of parole, as is the case in Texas. Id. at 864. The

court pointed to several statements in Miller indicating that when the Miller Court

referred to “the harshest possible punishment,” it was “referring to sentencing a

juvenile to life without parole.” Id. The court therefore held: “Because the holding

in Miller is limited to a prohibition on mandatory life without parole for juvenile

offenders, [the defendants in Lewis] are not entitled to punishment hearings.” Id.

      As appellant acknowledges, the Court of Criminal Appeals and intermediate

appellate courts, including this Court, have followed Lewis and held that Texas’s

statutory sentencing scheme for juvenile defendants convicted of capital felonies




                                          40
does not violate Miller and is not unconstitutional.9 See Turner v. State, 443 S.W.3d

128, 129 (Tex. Crim. App. 2014) (per curiam) (following Lewis and holding that

juvenile defendant was not entitled to individualized punishment hearing but,

because defendant was sentenced under prior version of Penal Code section 12.31(a)

that required juvenile defendants in capital cases to be sentenced to life without

possibility of parole, also reforming judgment to change sentence to life with

possibility of parole); McCardle v. State, 550 S.W.3d 265, 269–70 (Tex. App.—

Houston [14th Dist.] 2018, pet. ref’d) (following Lewis and also rejecting argument

that requiring juvenile defendant convicted of capital felony to serve forty years

before becoming eligible for parole is unconstitutional as “de facto life sentence”);

Guzman v. State, 539 S.W.3d 394, 402–06 (Tex. App.—Houston [1st Dist.] 2017,

pet. ref’d) (following Lewis and rejecting argument that Government Code section

508.145(b) is facially unconstitutional because requiring juvenile defendant to serve

forty years before becoming parole-eligible does not equate to sentence of life

without parole); Shalouei v. State, 524 S.W.3d 766, 769 (Tex. App.—Houston [14th

Dist.] 2017, pet. ref’d) (noting that United States Supreme Court has held that states

may remedy violation of Miller “by permitting juvenile homicide offenders to be



9
      Appellant acknowledges this adverse authority, including the Court of Criminal
      Appeals’ decision in Lewis v. State, and states that he “raises this claim in an
      adversarial fashion solely for the purpose of preserving error for possible further
      review.”
                                          41
considered for parole, rather than by resentencing them”) (quoting Montgomery v.

Louisiana, 136 S. Ct. 718, 736 (2016)).

      “When the Court of Criminal Appeals has deliberately and unequivocally

interpreted the law in a criminal matter, we must adhere to its interpretation under

the dictates of vertical stare decisis.” Guzman, 539 S.W.3d at 404 (quoting Mason

v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d)). In Lewis, the Court of Criminal Appeals “deliberately and unequivocally”

held that Texas’s statutory sentencing scheme for juvenile defendants convicted of

capital felonies does not violate Miller and is not unconstitutional. See 428 S.W.3d

at 863–64. We are bound by stare decisis to follow this holding. See Matthews v.

State, 513 S.W.3d 45, 61–62 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d)

(rejecting argument that Penal Code section 12.31(a)(1) is facially unconstitutional

because Court of Criminal Appeals has unequivocally spoken on and rejected

argument). We therefore hold that Texas’s statutory sentencing scheme for juvenile

defendants convicted of capital felonies is not facially unconstitutional.

      We overrule appellant’s third issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

Justice Goodman, concurring.

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




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