Carmon, Casey Demon

PD-0118-15
PD-0118-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/29/2015 6:21:14 PM
Accepted 2/4/2015 10:01:07 AM
ABEL ACOSTA
NO. _________________ CLERK

IN THE COURT OF CRIMINAL APPEALS

CASEY DEMON CARMON
Petitioner

vs.

STATE OF TEXAS
Respondent

No. 01-12-01124-CR
in the First Court of Appeals
On Appeal from the 174TH District Court of
Harris County, Texas
Cause No. 1243459

PETITION FOR DISCRETIONARY REVIEW

Patrick F. McCann
SBOT: 00792680
909 Texas Ave., Ste. 205
February 4, 2015 Houston, Texas 77002
Ph: (713) 223-3805
Fax: (281) 667-3352
writlawyer@justice.com

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas Rules of Appellate Procedure the following is presented to the Court.

Presiding Judge, Hon. Ruben Guerrero, 174th District, Harris County, Texas

Counsel for Appellant, as on cover
Appellant, CASEY DEMON CARMON, in the custody of the Texas Department of Criminal
Justice

ATTORNEYS FOR THE STATE OF TEXAS ON TRIAL:

MS. TRACI BENNETT MR. MATTHEW PENEGUY
SBOT NO. 75002489 SBOT NO. 24049367

Assistant District Attorneys
1201 Franklin
Houston, Texas 77002

ATTORNEYS FOR THE DEFENDANT ON TRIAL:

MR. ALVIN NUNNERY MR. BRENNEN DUNN
SBOT NO. 15141800 SBOT NO. 24075487
909 Texas, Suite 205 2306 Blodgett St.
Houston, Texas 77002 Houston, Texas 77004

ATTORNEY FOR DEFENDANT ON APPEAL:

MR. PATRICK F. McCANN
SBOT NO. 00792680
909 Texas, Suite 205
Houston, Texas 77002
ATTORNEYS FOR THE STATE ON APPEAL:

Alan Curry
Heather Hudson
Patricia Rae R. Lykos
1201 Franklin St Ste. 600
Houston, Texas 77002

ii
 TABLE OF CONTENTS
Page

IDENTITY OF PARTIES AND COUNSEL ............................................................ii

TABLE OF CONTENTS ……………………………….……………......………..iii

INDEX OF AUTHORITIES ……………………………...…..…....…..…………iv

STATEMENT REGARDING ORAL ARGUMENT..…………..…..…..…....…….2

STATEMENT OF PROCEDURAL HISTORY…………………....................……2

QUESTION PRESENTED FOR REVIEW ……………………….…..…......….....2

REASONS FOR REVIEW …………………..……………………...……..……....3

CONCLUSION…………………………………………………………….…..….11

PRAYER……………………….…………………………….….....………...……12

CERTIFICATE OF SERVICE ................................................................................13

CERTIFICATE OF COMPLIANCE…………………………...………………....13

APPENDIX……………………………………...………………………………..14

iii
 INDEX OF AUTHORITIES

Cases: Page(s):
Floyd v. State, 87 So. 3d 45 (Fla. Dist. Ct. App. 2012)............................................8

Graham v. Florida, 130 S. Ct. 2011 (2010).....................................................7-9, 11

Miller v. Alabama, 132 S.Ct. 2455 (2012)......................................................2, 7-11

People v. Caballero, 282 Pacific 3d 291, 293, 294 (Cal. 2012)...............................9

State ex rel Landry v. State, 106 So. 3d 106 (La. 2013)...........................................9

State v. Brown, 118 So. 3d 332 (La. 2013)...............................................................8

State v. Null, 836 N.W. 2d 41, 45, 72 (Iowa 2013)..........................................10-11

States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006)..................................4

Thomas v. State, 78 So. 3d 644 (Fla. Dist. Ct. App. 2011)......................................8

iv
 NO. _________________

IN THE COURT OF CRIMINAL APPEALS

CASEY DEMON CARMON
Petitioner
vs.

STATE OF TEXAS
Respondent

No. 01-12-01124-CR
in the First Court of Appeals
On Appeal from the 174TH District Court of
Harris County, Texas
Cause No. 1243459

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Casey D. Carmon, Petitioner in the above-styled and

numbered cause, by and through his Counsel of Record, PATRICK F.

McCANN, and pursuant to TEX.R.APP.P. 70.1, respectfully submits this

Petition for Discretionary Review, and in support thereof would show this

Honorable Court the following:

1
 I.
STATEMENT REGARDING ORAL ARGUMENT

Petitioner Casey D. Carmon requests oral argument in this case. This is a

published decision on a matter of first impression in Texas on an important

constitutional question under Miller v. Alabama, 132 S.Ct. 2455 (2012). The

Court would benefit from oral argument.

II.
STATEMENT OF PROCEDURAL HISTORY

The Petitioner was charged in Harris County in the 174th District Court,

Hon. Ruben Guerrero presiding, with Capital Murder. Casey D. Carmon

pleaded not guilty and was convicted by the jury, resulting in a mandatory life

sentence, without the possibility of parole.

The Court of Appeals affirmed Petitioner’s conviction in a published

opinion on December 30, 2014. [See attached Appendix]. This Petition for

Discretionary Review follows.

III.
QUESTION PRESENTED FOR REVIEW

Does accumulation sentencing order on a juvenile that creates a de facto life

without parole sentence violate Miller v. Alabama?

2
 IV.
REASONS FOR REVIEW

The trial court, at the urging of the State, "stacked" the matters in this

case so that they could run consecutively. [See Judgment and sentence, the trial

court's handwritten note, and the oral pronouncement, Vol VII, pg 47 of

Reporter's record] Mr. Carmon was already serving a sentence of 99 years for

another aggravated robbery. See Carmon v. State, memorandum opinion, Cause

#14-11-00334-CR, slip op. p1, p3].

The trial court and the State had already agreed to a sentence of life in

prison with parole eligibility at 40 years, in violation of the Texas Penal Code.

By stacking the sentence on top of the preceding one, which under Texas law

would be eligible for parole at 30 years, the State created a sentencing scheme

for a juvenile which would result in, minus the years Mr. Carmon had spent in

custody, a potential parole date when his age would reach approximately 85.

This is longer than the average life expectancy of the American male, let alone

the male in prison, let alone Texas prisons. In a recent report from the

Organization for Economic Cooperation and Development as relayed by the

Huffington Post, the average life expectancy was revealed to be the following:

3
 Life expectancy in the United States ranks 26th out of the 36 member
countries of the Organization for Economic Cooperation and Development
(OECD), according to a new report from the organization.
U.S. expectancy in 2011 was 78.7 years, which is slightly below the
OECD average of 80.1. For U.S. men, the average life expectancy is 76, while
it's 81 for U.S. women. (At five years, this gap in life expectancy between men
and women is smaller than the OECD average of six years).
The U.S. life expectancy comes in just behind Slovenia, at 80.1 years, and
Denmark, at 79.9 years. Comparatively, life expectancy is 81.1 years in the
United Kingdom and 82.8 years in Switzerland (the country that came in first
in the ranking). The Russian Federation came in last, with a life expectancy of
69.8 years.
Huffington Post on 11/21/13

In contrast, it seems clear from the observed statistical data that long

periods of incarceration actually shortened expected life-spans. Whether it is

from the oppressive conditions of prison or the fact that prison populations by

definition have an “unnatural” existence, the summary of those statistical facts

is best noted by referencing actual decisions and statistical websites such as

these taken from a position paper regarding life sentences for juveniles in

Michigan.

Life Expectancy for Incarcerated Individuals

It is generally accepted that life in prison, with its stressors, violence and

disease in and of itself significantly shortens one’s life expectancy. See United

States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006). (Life expectancy
4
within federal prison is considerably shortened) II EOR 72, Feld, Symposium

on Youth and the Law, 22 ND J L Ethic Pub Pol 9, 63, fn. 231 (2008). See also,

Elizabeth Arias, Ctr. for Disease Control, U.S. Life Tables, 2003, Nat'l Vital

Statistics Rep., April 19, 2006, at 3, available at:

http://www.cdc.gov/nchs/data/nvsr/nvsr54/nvsr54_14.pdf.

The actual extent of the diminished life expectancy resulting from

imprisonment was addressed by the United States Sentencing Commission

which defines a life sentence as 470 months (or just over 39 years). This is based

on average life expectancy and median age of individuals at time of sentencing.

Based on the median age at sentencing (25 years) the life expectancy for a

person in general prison population is 64 years of age. U.S. Sentencing

Commission Preliminary Quarterly Data Report (through June 30, 2012) at A-8,

available at:

http://www.ussc.gov/DataandStatistics/Federal_Sentencing_Statistics/Quarterly

_Sentencing_Updates/USSC_2012_3rd_Quarter_Report.pdf .

Section 5081.150 of the Texas Government Code details the requirements

for when parole is calculated on successive sentences (See attached opinion

below). In summary form, when a person is appropriately sentenced to
5
successive sentences by a trial court, the person must finish parole eligibility on

the first case before beginning to earn parole credit on the successive cases.

This becomes highly relevant when one considers the effect of stacking

lengthy sentences on juveniles. It is clear at some point that stacking multiple

life sentences or lengthy sentences creates a “de facto” or effective life without

parole sentence. One need only turn to census data to illustrate this.

It is easy to see that even two lengthy terms of years, if stacked, could

result in an effective life without parole sentence. In the case of Mr. Carmon,

where the State would argue that he is subject to a 40 year sentence under the

new law [which they wish to apply retroactively] because of the stacking order

applied by the trial court Mr. Carmon would have to serve 30 years minimum

on his 99 year Aggravated Robbery sentence and then begin a 40 year eligibility

march at the age of 49 towards possible release. Sadly, even under the

charitable OECD figures rather than the more dismal prison expectation of 64

years, by the time Mr. Carmon would be eligible for release at 89 years of age,

give or take a month, he would already be dead. There is no clearer cut case of

de facto life without parole than this unconstitutional stacking order by the

174th District Court. The only difference is that by one set of figures Mr.
6
Carmon would be dead some time in his 78th year, 11 years before parole

eligibility or some time in his 64th year, 25 years before parole eligibility. To

quote a popular saying, if it looks like a duck, acts like a duck, and quacks like a

duck... it’s a duck. If 89 years looks like, sounds like, and feels like a life

sentence without parole...then it is. It should be ruled unconstitutional under

Miller v. Alabama id.

Other Jurisdictions

There is a clear split among the various states that the Appellant has

reviewed. On the one side, broadly speaking, are California, Iowa, and

Wyoming, which have applied the reasoning of Miller v. Alabama 132 S.Ct.

2455 (2012), Graham v. Florida 130 S. Ct. 2011 (2010) and Roper v Simmons

543 U.S. 551 (2005) and concluded that successive sentences are barred if they

create a de facto life without parole term of imprisonment. On the other hand,

Louisiana has refused to extend the rationale of Miller any further. Florida

appears to be wrestling with this issue as its Courts of Appeals are split with

some refusing to extend the reasoning while the First District Court of Appeals

struck down a virtual de facto life without parole sentence.

7
 In the First District in Thomas v. State, 78 So. 3d 644 (Fla. Dist. Ct. App.

2011), the court held that a 50 year sentence given to a 17 year-old was

constitutional but acknowledged that a lengthy term of year sentence may

become the equivalent of a life sentence and thus would be unconstitutional.

Shortly after in Floyd v. State 87 So. 3d 45 (Fla. Dist. Ct. App. 2012), the First

District added up the years that the juvenile was sentenced to and concluded

that there was no realistic possibility of parole. It thus held the sentence

unconstitutional. The Florida Supreme Court is about to rule on this split of

authority.

Following the Florida lead the Supreme Court of Louisiana has also held

to a narrow reading of Graham and Miller. See State v. Brown 118 So. 3d 332

(La. 2013). The Louisiana Supreme Court declined in the absence of any further

guidance to extend the Miller holding to “de facto” life without parole

sentences stating “we see nothing in Graham that even applies for multiple

convictions as Graham conducts no analysis on how to handle such sentences”

See State v. Brown 118 So. 3d at 341. However in an odd tangent of reasoning

that same Louisiana Supreme Court overturned a life without parole sentence

given to a juvenile offender because of a failure to consider individual
8
mitigating factors under Miller based in the sentencing courts’ decision. See

State v. Williams 108 So. 3d 1169 (La. 2013); see also State ex rel Landry v. State

106 So. 3d 106 (La. 2013).

By stark contrast in People v. Caballero 282 Pacific 3d 291, 293, 294 (Cal.

2012), the California Supreme Court directly addressed de facto life without

parole sentencing and said that there was no principled difference under

Graham and Miller between a statutory life without parole and consecutive

terms of 40 years to life and two terms of 35 years to life, resulting in a

minimum of 105 years before being eligible for parole. See People v. Caballero

282 Pacific 3d 291, 293, 294 (Cal. 2012).

The Iowa supreme court also determined that de facto life without parole

sentence violated Miller v. Alabama in State v Ragland 836 N. W. 2d 107 (Iowa

2013). This was a different set of factual circumstances because after the

Supreme Court’s decision in Miller v. Alabama because Iowa’s governor took

the independent action of commuting 38 juvenile homicide offenders

[[including Ragland] to life with no possibility of parole for 60 years. Mr.

Ragland appealed the 60 year sentence challenging both the government’s

authority and the actual action as unconstitutional. The Iowa court first
9
examined whether the commuted 60 year term was a mandatory sentence; the

court said it was because it did not take into account the individual offenders

characteristics but simply changed the ultimate length of a sentence. There was

no consideration of youth or any other factor to take into account the

governor’s decision to commute all 38 youthful offenders.

Although the court found that the governor had authority to commute

sentences it determined that he could not circumvent Miller v. Alabama id

simply by changing the length of the sentence. The court also looked at the

issue of de facto life without parole sentences by calculating that the defendant

would not be eligible for parole until the age of 78. The Ragland court

specifically recognized that under standard morality tables Mr. Ragland was

only expected to live to 78.6 years. See State v Ragland, 836 N.W. 2d at 119.

The court noted that when a sentence is the practical equivalent of life without

parole that it would violate the mandates of Miller, stating it was important that

the spirit of the law not be lost in the application. See Ragland at 121. On the

same day as it released the Ragland decision the Supreme Court of Iowa also

considered State v. Null 836 N.W. 2d 41, 45, 72 (Iowa 2013). The decision in

Null focused on a “meaningful opportunity to obtain release based on the
10
Graham and Miller factors on the lessened moral culpability of juveniles and

the chance for behavioral reform. The court in Null expressed skepticism that

the potential for release at the age of 69 years old somehow answered the Miller

courts concerns regarding opportunity for reform for juveniles. (As a side note

the Iowa Court in Null also noted that the prison life expectancy figures made it

even less likely that Mr. Null would get any kind of opportunity for actual

release).

In the final analysis to deny meaningful opportunity for parole either by

a sentence that says it is life without parole or by artificially creating a set of

sentences that does the same thing, is to defy Miller v. Alabama id.

V.
CONCLUSION

The State cannot create a de facto life without parole sentence by

stacking the cases of a juvenile one atop the other in order to get around Miller

v. Alabama,. The trial court likewise cannot issue such an order if it in fact

creates such a result. In this very limited instance, where the crime for which

he was convicted when stacked, creates the same result consecutively that it

does under the old sentencing scheme, it violates Miller v. Alabama. The

11
sentencing order must be struck down, and the sentences "unstacked", as it

were, and ordered to run concurrently, either by this Honorable Court or by

the trial court. The stacking order must be undone, and this judgment either

reformed or sent back with appropriate instructions for a new sentencing

PRAYER

WHEREFORE, PREMISES CONSIDERED, the Petitioner prays that this

Honorable Court grant this Petition for Discretionary Review, set this cause for

oral argument and further briefing, that the judgment of the Court of Appeals

be reversed, and the cause remanded to the Court of Appeals for

reconsideration or to the trial court for a new trial or sentencing. Petitioner

also asks for whatever other relief to which she may be entitled to under law

and in the interests of justice.

Respectfully submitted,

/s/ Patrick F. McCann
PATRICK F. McCANN
SBOT# 00792680
909 Texas Ave., Ste. 205
Houston, Texas 77002
Ph: (713) 223-3805
Fax: (281) 667-3352

12
 CERTIFICATE OF SERVICE

I, the undersigned attorney, hereby certify that a true and correct copy of

the foregoing Petition for Discretionary Review was sent to the following

persons via email using the e-filing service on this 29th day of January 2015:

Alan Curry: curry_alan@dao.hctx.net

Heather A. Hudson: hudson_heather@dao.hctx.net

/s/ Patrick F. McCann
Attorney for Appellant

CERTIFICATE OF COMPLIANCE
Under the Texas Rules of Appellate Procedure I hereby certify that this

document contains less than the mandated number of pages, 14 point font and

is 2,821 words based upon a word count under MS Word.

/s/ Patrick F. McCann
Attorney for Appellant

13
Opinion issued December 30, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-01124-CR
———————————
CASEY DEMON CARMON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1243459

OPINION

Appellant, Casey Demon Carmon, was charged by indictment with capital

murder.1 Appellant pleaded not guilty. The jury found him guilty. The trial court

assessed punishment at life imprisonment and granted the State’s motion to

1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011), § 19.03(a)(7)(A)
(Vernon Supp. 2014).
cumulate the sentence with an earlier 99-year sentence. In six issues on appeal,

Appellant argues (1) the trial court had no authority to impose the sentence in his

judgment, (2) the trial court’s order to cumulate the sentences violates the Eighth

Amendment to the United States Constitution, (3) the verdict and sentence violate

double jeopardy as multiple punishments for the same offense, (4) the trial court

abused its discretion by denying his motion to suppress his custodial statement, and

(5) the evidence is insufficient to support the judgment.

We affirm.

Background

Appellant and three other people devised a plan to rob a convenience store.

Appellant was 17 years old at the time of the offense. When they arrived at the

convenience store, Appellant was given a gun. He checked to make sure the gun

was loaded and then cocked it. He went into the store with Mihn Truong. Two

clerks were in the store. One was standing next to the cash register. The other was

reading a newspaper at the other end of the counter.

Appellant walked up to the clerk reading the newspaper, pointed the gun to

this head and said, “You know what this is.” The clerk grabbed the gun, and a

struggle over the gun ensued. In an interview with Detective D. Arnold, Appellant

said that he only shot the first clerk during the struggle and that the gun went off

accidentally. In contrast, Truong testified at trial that, during the struggle,

2
appellant shot the clerk twice. Appellant was then able to push the clerk off of

him. Appellant then shot him a third time in the chest.

After this, Truong ran to the door and called for Appellant to follow.

Appellant told Detective Arnold that he saw the other clerk reach for a gun.

Appellant explained that he shot the second complainant two times because he

thought the complainant was going to shoot Truong. He asserted this twice in his

interview. Truong testified that he told Appellant that the clerk was reaching for a

gun. He testified that Appellant shot in the clerk’s direction, but did not aim the

gun at the clerk.

During the course of the investigation, Detective Arnold decided to

interview Appellant. Appellant was incarcerated for a separate offense at the time.

Detective Arnold went to the jail to talk to Appellant. Officer P. Sanders brought

Appellant to the interview room.

It is undisputed that Appellant and Detective Arnold were together in the

room for over two hours. Detective Arnold recorded the audio of the final 15

minutes of their time together. At the start of the recording, Detective Arnold read

Appellant his rights pursuant to article 38.22 of the Texas Code of Criminal

Procedure. Appellant agreed to waive his rights and proceeded to talk to Detective

Arnold about his involvement in the underlying offense.

3
 In a motion to suppress hearing, Appellant testified that he did not talk to

Detective Arnold during the initial two hours other than to say that he did not want

to talk to him and that he wanted to be taken back to his cell. He testified that

Detective Arnold told him that he could not go back to his cell and would have to

stay in the room with him.

Detective Arnold denied that Appellant ever attempted to stop the interview.

He testified that he told Appellant that it was Appellant’s choice to talk to him.

Once, he stepped out of the room for a few minutes to give Appellant time to think

about what he wanted to do.

Everyone agreed that, once during the two hours, Appellant asked to go to

the restroom. Detective Arnold released Appellant to Officer Sanders to take

Appellant to the restroom. Officer Sanders testified that, during their walk,

Appellant told him that he wanted to go back to his cell. Officer Sanders told him

that decision was up to Detective Arnold. After Appellant came out of the

restroom, Officer Sanders took Appellant back to the interview room.

Officer Sanders also testified that he stood outside the interview room during

the entire time Appellant was in the room. The door was closed and the hallway

was noisy. As a result, Officer Sanders could hear very little of what was said

while Appellant and Detective Arnold were together. He testified that he did hear

one brief exchange, however. He heard Appellant tell Detective Arnold that he

4
wanted to go back to his cell. He then heard Detective Arnold respond that

Appellant could not go to the cell until he was done talking to him.

Prior to the trial on the underlying offense, Appellant had been found guilty

of aggravated robbery and was sentenced to 99 years’ confinement. After the jury

found him guilty of the underlying offense, the trial court assessed punishment at

life. The State presented a motion to have Appellant serve the two sentences

consecutively as opposed to concurrently. The trial court granted the motion.

Improper Sentence

In his first issue, Appellant argues that the trial court had no authority to

impose the sentence in his judgment. Appellant was 17 years old at the time he

committed the underlying offense. Appellant was charged with committing capital

murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011),

§ 19.03(a)(7)(A) (Vernon Supp. 2014). Capital murder is a capital felony. Id.

§ 19.03(b).

At the time of trial, section 12.31 of the Texas Penal Code provided that,

when the State does not seek the death penalty, the sole punishment for a capital

felony was life without parole, except in circumstances not applicable here. See

Act of May 20, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930,

1930 (amended 2013) (current version at TEX. PENAL CODE ANN. § 12.31(a)

(Vernon Supp. 2014)). Before the trial, the United State Supreme Court issued

5
Miller v. Alabama, --- U.S. ---, 132 S. Ct. 2455 (2012). In Miller, the court held

that statutes imposing mandatory life sentences for juveniles under the age of 18

violated the Eighth Amendment to the United States Constitution. Id. at ---, 132 S.

Ct. at 2469.

Based on Miller, the trial court announced at the start of the trial that, if the

jury found Appellant guilty, the court would sentence Appellant to life

imprisonment as opposed to life without parole. The jury found Appellant guilty,

and the trial court assessed punishment at life imprisonment. After Appellant filed

his notice of appeal but before he filed his brief, the Texas Legislature amended

section 12.31 to conform with Miller. See Act of July 11, 2013, 83rd Leg., 2d

C.S., ch. 2, § 1, 2013 Tex. Sess. Law Serv. 4802, 4802 (West). The statute now

provides, in pertinent part, that, when the State does not seek the death penalty, the

punishment for a capital felony is “life, if the individual committed the offense

when younger than 18 years of age.” TEX. PENAL CODE ANN. § 12.31(a)(1).

Appellant’s argument in his first issue is that the trial court lacked the

authority to sentence him to life imprisonment at the time of sentencing because

the revision to section 12.31 had not been enacted at that time. Accordingly,

Appellant argues that we must remand for a new sentencing hearing, even though

his sentence will be the exact same as what it is now. We disagree that remand is

required.

6
 When the legislature revised section 12.31 to conform with Miller, it

specifically provided, “The change in law made by this Act[] applies to a criminal

action pending, on appeal, or commenced on or after the effective date of this Act,

regardless of whether the criminal action is based on an offense committed before,

on, or after that date . . . .” Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3(1),

2013 Tex. Sess. Law Serv. 4802, 4803 (emphasis added). Accordingly, even if we

agreed that Appellant had suffered some harm by receiving a punishment below

what was statutorily authorized at the time of the sentencing, any error and harm

has since been corrected by the legislature.2

We overrule Appellant’s first issue.

Consecutive Sentencing

In his second issue, Appellant argues that the trial court’s granting the

State’s motion to have Appellant serve the sentence consecutively with a 99-year

sentence for another crime amounts to a de facto punishment of life without parole.

Appellant argues that this de facto life without parole violates Miller.

2
Appellant also suggests that there is a discrepancy between what the trial court
considered to be Appellant’s eligible time for parole for the life sentence and what
the current framework establishes as his eligible time for parole. Even if a
discrepancy exists, the change in the law “applies to a criminal action . . . on
appeal.” Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3(1), 2013 Tex. Sess.
Law Serv. 4802, 4803. Accordingly, the current framework for determining
eligibility for parole controls over anything the trial court considered to be the law
at the time. See id.
7
 Before the underlying trial, Appellant was tried for aggravated robbery. The

jury in that case found him guilty and assessed punishment at 99 years’

confinement. The State filed a motion with the trial court in this case requesting

that Appellant serve the 99-year sentence and the sentence in this case

consecutively rather than concurrently. See TEX. CODE CRIM. PROC. ANN. art.

42.08(a) (Vernon Supp. 2014) (assigning trial court discretionary authority to have

multiple sentences be served cumulatively or concurrently). At a hearing on the

motion, conducted the day after Appellant’s conviction in this case, Appellant

argued that cumulating the two sentences would violate Miller. The trial court

granted the motion.

Prior to Miller, the United States Supreme Court considered the

constitutionality of assessing the death penalty against minors and of assessing life

without parole for non-homicide offenses. See Roper v. Simmons, 543 U.S. 551,

125 S. Ct. 1183 (2005) (death penalty); Graham v. Florida, 560 U.S. 48, 130 S. Ct.

2011 (2010) (life without parole for non-homicide offenses). The supreme court

determined the constitution required categorical bans on both practices. See Roper,

543 U.S. at 578, 125 S. Ct. at 1200; Graham, 560 U.S. at 82, 130 S. Ct. at 2034.

In Miller, in contrast, the supreme court did not announce a categorical ban

on assessing life without parole on minors. --- U.S. at ---, 132 S. Ct. at 2469.

Instead, the court held that sentencing schemes could not “mandate[] life in prison

8
without possibility of parole for juvenile offenders.” Id. (emphasis added). While

life without parole can be assessed against a minor, the sentencer is required “to

take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.” Id.

Based on this, Appellant’s argument that “de facto sentences of life without

parole” violate Miller cannot stand. The cumulation of the two offenses was not

imposed under a mandatory sentencing scheme. Instead, the two offenses were

cumulated through the trial court’s normative, discretionary ruling. See Barrow v.

State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) (holding that sentencing is

normative process and that same is true for discretionary decision to cumulate

sentences).

Furthermore, even assuming Miller extends to rulings on motions to

cumulate sentences where a “de facto” life without parole sentence could be

imposed, we still find no violation. The record reflects that the trial court was well

aware of Miller and its holdings. Accordingly, we have no basis for determining

that the trial court failed to consider the factors required to be considered under

Miller. See Miller, --- U.S. at ---, 132 S. Ct. at 2469 (requiring sentencer to take

into account how children are different and how those differences counsel against

sentence of life without parole). The trial court presided over both trials that

resulted in the sentences in question. The trial court expressly noted its ruling was

9
based on its knowledge of the facts presented at both trials. While no evidence

was specifically introduced at the hearing, the record reflects that the trial court did

not prevent the parties from introducing any.3 Instead, the trial court specifically

told the parties that it would “hear whatever you’ve got.” At the end of the

hearing, the trial court confirmed, “Both sides have had their say, right?” Based on

its knowledge of Appellant, of the circumstances surrounding the crimes he

committed, and of Appellant’s behavior in those circumstances, the trial court

decided to cumulate Appellant’s sentences. This ruling conforms with the

requirements of Miller.

In supplemental briefing to this Court, Appellant has cited authority from

other jurisdictions involving cumulative sentences for separate offenses, post-

Graham. See, e.g., Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert. denied 133

S. Ct. 1996 (2013); People v. Caballero, 282 P.3d 291 (Ca. 2012); State v. Null,

836 N.W.2d 41 (Ia. 2013); State v. Brown, 118 So.3d 332 (La. 2013). In those

cases, the courts applied a Graham analysis when the trial court had imposed

aggregate sentences, but with different results that turned on the facts of the case

and the crimes committed. In Caballero, the California Supreme Court remanded

3
Because the record reflects that the trial court did not prevent the presentation of
further evidence and because Appellant has not raised an issue on appeal
identifying any exclusion of probative evidence necessary for the trial court’s
determination, we do not need to decide whether an evidentiary hearing is required
or what evidence, if any, might be necessary for resolution of a motion to
cumulate sentences.
10
for a new sentencing hearing, when multiple convictions for attempted murder

arose from one criminal episode and reached an aggregate minimum sentence of

110 years. 282 P.3d at 265, 296. None of the convictions was for a homicide

offense. Id. at 295. Similarly, in Null, the Supreme Court of Iowa remanded for a

new sentencing hearing for an aggregate sentence with a minimum prison term of

52.5 years; the court concluded that Graham applied to consecutive sentences for

second-degree murder and first-degree robbery that arose from the same criminal

episode. See Null, 836 N.W.2d at 45, 70, 76.

In contrast, the Louisiana Supreme Court upheld aggregated sentences for an

aggravated kidnapping and four counts of robbery, concluding that aggregating the

sentences, even if they arose from the same criminal episode, did not offend

Graham’s prohibition on a sentence of life without parole in non-homicide cases.

See Brown, 118 So.3d at 332–33, 342. In Brown, the court recognized that

Graham precluded a sentence of life without parole for any given non-homicide

offense (in that case, aggravated kidnapping), but held that nothing in Graham

required reformation of the convicting court’s determination that the kidnapping

and robbery sentences run consecutively. Id. In so doing, the court relied on the

Sixth Circuit’s decision in Bunch, which upheld a cumulative sentence of 89 years

for non-homicide offenses. See id. at 337 (citing Bunch, 685 F.3d at 551).

11
 We conclude that the trial court’s decision in this case does not violate the

cruel and unusual punishment parameters for juveniles that the Supreme Court set

forth in Graham. Unlike the sentences in Caballero and Null—in which the

consecutive sentences arose from the same criminal episode—here appellant

committed capital murder, killing two people, eight months after an unrelated

aggravated robbery. Nothing in Graham precludes the later sentences—for a

different criminal episode and for a homicide offense of the most serious kind—

from running consecutively. In addition, the trial court considered the effect of the

Supreme Court’s decision in Miller in declining to impose the then-required

sentence for juveniles of life without parole.

Graham prohibits life sentences for juveniles who committed only non-

homicide offenses. 560 U.S. at 82, 130 S. Ct. at 2034. Because one of the

cumulated sentences in this case is for the offense of homicide, Graham is not a

bar to cumulating the sentences. See id.; Arredondo v. State, 406 S.W.3d 300, 306

(Tex. App.—San Antonio 2013, pet. ref’d) (upholding cumulation of two life

sentences when one sentence was for homicide).

We overrule Appellant’s second issue.

Double Jeopardy

In his third issue, Appellant argues the verdict and sentence violate double

jeopardy as multiple punishments for the same offense. Appellant points out that,

12
in the punishment phase of his aggravated robbery, the State introduced evidence

of his committing the underlying offense of capital murder. The jury assessed 99

years’ confinement in that case. Appellant argues that, because it introduced

evidence of the underlying offense in the punishment phase for the aggravated

robbery case, the State was barred by the prohibition on double jeopardy from

seeking a judgment in the underlying case.

As the State points out, the Texas Court of Criminal Appeals has rejected

this argument long ago. “The Double Jeopardy Clause of the United States

Constitution embodies three protections: (1) it protects against a second

prosecution for the same offense after acquittal; (2) it protects against a second

prosecution for the same offense after conviction; and (3) it protects against

multiple punishments for the same offense.” Ex parte Broxton, 888 S.W.2d 23, 25

(Tex. Crim. App. 1994). “Extraneous offenses are frequently given consideration

in sentencing decisions and the double jeopardy clause is not offended.” Id. at 26.

This principle has been universally recognized. Id. at 28.

We overrule Appellant’s third issue.

Motion to Suppress

In his fourth and fifth issues, Appellant argues that the trial court abused its

discretion by denying his motion to suppress his custodial statement.

13
A. Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.

2013). We review the trial court’s factual findings for abuse of discretion and

review the trial court’s application of the law to the facts de novo. Id. Almost total

deference should be given to a trial court’s determination of historical facts,

especially those based on an evaluation of witness credibility or demeanor. See

Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression

hearing, the trial court is the sole and exclusive trier of fact and judge of the

witnesses’ credibility and may choose to believe or disbelieve all or any part of the

witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

When, as here, the trial court makes findings of fact with its ruling on a

motion to suppress a statement, we do not engage in our own factual review but

determine only whether the record supports the trial court’s factual findings.

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial

court abuses its discretion in making a finding not supported by the record, we will

defer to the trial court’s fact findings and not disturb the findings on appeal. See

id.

14
B. Analysis

Appellant was already incarcerated before he was charged with the

underlying offense. When he obtained information linking Appellant to the

underlying offense, Detective Arnold went to the jail to talk to Appellant. Officer

Sanders brought Appellant to the interview room.

It is undisputed that Appellant and Detective Arnold were together in the

room for over two hours. Detective Arnold recorded the audio of the final 15

minutes of their time together. At the start of the recording, Detective Arnold read

Appellant his rights pursuant to article 38.22 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2014).

Appellant agreed to waive his rights and proceeded to talk to Detective Arnold

about his involvement in the underlying offense. What took place before the

recording was a matter of dispute in the motion to suppress hearing.

Appellant testified that he did not talk to Detective Arnold during the initial

two hours other than to say that he did not want to talk to him and that he wanted

to be taken back to his cell. He testified that Detective Arnold told him that he

could not go back to his cell and would have to stay in the room with him.

Detective Arnold denied that Appellant attempted to stop the interview. He

testified that he told Appellant that it was Appellant’s choice to talk to him. Once,

15
he stepped out of the room for a few minutes to give Appellant time to think about

what he wanted to do.

Everyone agreed that, once during the two hours, Appellant asked to go to

the restroom. Detective Arnold released Appellant to Officer Sanders to take

Appellant to the restroom. Officer Sanders testified that, during their walk,

Appellant told him that he wanted to go back to his cell. Officer Sanders told him

that decision was up to Detective Arnold. After Appellant came out of the

restroom, Officer Sanders took Appellant back to the interview room.

Officer Sanders also testified that he stood outside the interview room during

the entire time Appellant was in the room. The door was closed and the hallway

was noisy. As a result, Officer Sanders could hear very little of what was said

while Appellant and Detective Arnold were together. He testified that he did hear

one brief exchange, however. He heard Appellant tell Detective Arnold that he

wanted to go back to his cell. He heard Detective Arnold respond that Appellant

could not go to the cell until he was done talking to him.

In its findings of fact, the trial court found that Detective Arnold was

credible and accepted his testimony as true. The trial court further found that

Appellant was not credible and did not believe his testimony. Additionally, the

trial court found that it was difficult to hear in the hallway where Officer Sanders

16
was standing and that Officer Sanders “could not have accurately heard the content

of the conversation that took place between [Appellant] and Officer Arnold.”

The thrust of Appellant’s argument on appeal is that Officer Sanders was an

honorably-discharged navy veteran “who had no reason to lie, and every reason to

look the other way.” Regardless, the credibility of each of the witnesses and the

weight to give their testimony rests exclusively in the province of the trier of fact.

See Gonzales, 369 S.W.3d at 854 (holding almost total deference should be given

to trial court’s determination of historical facts, especially those based on

evaluation of witness credibility or demeanor); Ross, 32 S.W.3d at 855 (holding

trial court is the sole and exclusive trier of fact at suppression hearing and may

choose to believe or disbelieve all or any part of witnesses’ testimony).

Appellant also argues that his confession was coerced. A confession can be

determined to be involuntary and, accordingly, in violation of federal due process

rights, “only if there was official, coercive conduct of such a nature that any

statement obtained thereby was unlikely to have been the product of an essentially

free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199,

211 (Tex. Crim. App. 1995). Appellant testified at the suppression hearing that

Detective Arnold told him that, if he did not co-operate, Appellant would get the

17
death penalty.4 In its findings of fact, however, the trial court specifically found,

“Officer Arnold did not threaten [Appellant] . . . . Officer Arnold did not tell

[Appellant] that he would receive the death penalty if convicted of capital murder.”

Appellant has failed to establish that the trial court could not have disbelieved

Appellant’s claim of being threatened with the death penalty if he failed to co-

operate. See Gonzales, 369 S.W.3d at 854; Ross, 32 S.W.3d at 855.

We hold that Appellant has failed to establish that the trial court abused its

discretion by denying the motion to suppress. We overrule Appellant’s fourth and

fifth issues.

Sufficiency of the Evidence

In his sixth issue, Appellant argues that the evidence is insufficient to

support the judgment.

A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

4
By that time, the United States Supreme Court had held the constitution prohibited
assessing the death penalty against defendant who committed crimes as a minor.
See Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 1200 (2005).
18
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

19
the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Analysis

In this issue, Appellant argues that the evidence establishes that he did not

intend to kill the two complainants. Appellant was charged with capital murder.

As it applies to Appellant, a person commits capital murder when he murders more

than one person during the same criminal transaction. TEX. PENAL CODE ANN.

§ 19.03(a)(7)(A). Murder, for the purposes of capital murder, constitutes

intentionally or knowingly causing the death of an individual. Id. §§ 19.02(b)(1),

19.03(a). Appellant argues that the evidence disproves that he intentionally or

knowingly caused the complainants’ deaths.

For the first man he shot, Appellant told Detective Arnold that the gun went

off accidentally after the two began struggling for control of the gun. Truong

testified, however, that Appellant shot the first man three times. The autopsy

confirmed this. Truong testified that the first two shots occurred while Appellant

and the first complainant were struggling with the gun. The third shot, however,

20
occurred after Appellant pushed the complainant away. Appellant then pointed the

gun at him and shot him in the chest.

For the second man shot, Appellant relies on Truong’s testimony to establish

he lacked the requisite intent. Truong testified that, after Appellant shot the first

complainant, he ran to the door and called Appellant to leave as well. Truong

watched from the door and saw the other clerk reaching for something under the

counter. Truong yelled that the clerk had a gun. Appellant responded by shooting

in the direction of the second clerk. Truong testified that Appellant did not point

the gun directly at the clerk, but just aimed in clerk’s direction and fired.

In contrast to this testimony, Appellant told Detective Arnold that he saw the

second clerk reach for a gun. Appellant explained that he shot the second

complainant two times because that complainant was going to shoot Truong. He

asserted this twice in his interview.

All of these conflicts in the testimony were presented to the jury to resolve.

See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793 (holding appellate courts defer to

jury’s resolution of conflicts in evidence as long as resolution is rational). The jury

could have rationally resolved the conflicts in the evidence to determine that

Appellant intentionally or knowingly caused the death of both individuals.

Accordingly, we hold the evidence is sufficient to support this element and the

judgment of conviction.

21
 We overrule Appellant’s sixth issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley
Justice

Panel consists of Justices Higley, Bland, and Sharp.

Justice Sharp, concurring without opinion.

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

22