NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AUSTIN, TEXAS
EX PARTE TERRANCE HENRY
Appellant
v.
THE STATE OF TEXAS,
Appellee
APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
No. 05-14-00197-CR
COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS, TEXAS
On appeal from Cause Number F-09-0959736-W
in the 363RD Criminal District Court
of Dallas County, Texas
Honorable Tracy Holmes, Judge Presiding
JOHN TATUM
990 SOUTH SHERMAN STREET
RICHARDSON, TEXAS 75081
(972) 705-9200
BAR NO. 19672500
jtatumlaw@gmail.com
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . 1
STATEMENT OF CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF THE PROCEDURAL HISTORY.. . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).
2. The Court of Appeals erred in holding that the trial court’s application of the
2013 amendment to section 12.31 P.C. when resentencing Henry was not an
unconstitutional ex post facto application fo the amended law.
3. The Court of Appeals erred in holding that Henry’s punishment on remand does
not violate Henry’s right to due process.
4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”
REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-8
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
INDEX OF AUTHORITIES
FEDERAL CASES:
Graham v. Florida
560 U.S. (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Miller v. Alabama
132 S.Ct. 2455 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6
U.S. v. Obrien
391 U.S. 367, 88 S.Ct. 1073, 20 L.Ed. 2d. 672 (1968).. . . . . . . . . . . . . . . . . . . . . . 7
U.S. v. Patzer
15 F3d 944 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. v. Staten
466 F.3d 708 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. v. Wade
435 F.3d 829 (8th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATE CASES:
Lewis v. State
428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Lopez v. State
928 S.W.2d 528 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Hazzard
146 Idaho 37, 190 P3d 193 (Ct. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
State v. Jones
192 Wis 2d 78, 532 N.W.2d 79 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Manussier
129 Wash 2d 652, 921 P2d 473 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
iii
Turner v. State
443 S.W.3d 128 (Tex. Crim. App. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
STATUTES, RULES:
8th amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 3,5
Sec. 12.31 P.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,5
Sec. 19.01 P.C. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Article I § 10, of the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Article One, Section Sixteen of the Texas Constitution. . . . . . . . . . . . . . . . . . . . . . 9
Article One Section Nine of the U.S. Constitution . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
No. 05-14-00197-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
TERRANCE HENRY, Appellant
v.
THE STATE OF TEXAS Appellee
*****
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
*****
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the Appellant/Petitioner and respectfully urge the Court
to grant discretionary review of the above named cause.
STATEMENT REGARDING ORAL ARGUMENT
Appellant/Petitioner does not request oral argument at this time;
however, if discretionary review is granted Appellant/Petitioner requests oral
argument on any issue granted review.
STATEMENT OF CASE
On March 1, 2011, a trial was held in Cause No. F09-59736-W before
the Honorable Tracy F. Holmes, Judge presiding of the 363rd Judicial District
Court of Dallas County, Texas, and a jury. The Defendant, Terrance Henry,
entered a plea of not guilty to the offense of capital murder as charged in the
1
indictment. (RR: Vol.4 p. 5) The jury found the Defendant, who was seventeen
years old at the time of offense, guilty of capital murder. (RR: Vol. 7 p. 102) The
jury sentenced the Defendant to confinement for life in the Institutional Division
of Texas Department of Criminal Justice without parole as required by law. (RR:
Vol. 7 p. 104) While Henry’s appeal was pending the United States Supreme
Court held that the Eighth Amendment to the United States Constitution forbids a
sentencing scheme for juvenile offenders in which life without parole is
mandatory rather than based on an individualized sentencing assessment. Henry’s
first appeal, 05-11-00676-CR was reversed and remanded for a new punishment
hearing. On remand, the trial court assessed Henry’s punishment at imprisonment
for life, with the possibility of parole. The second appeal, 05-14-00197-CR, was
affirmed.
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals affirmed the appeal in an opinion delivered on
July 10, 2014 a copy of which is attached hereto as Addendum A.
Appellant/Petitioner now files his Petition for Discretionary Review.
SUMMARY OF THE STATEMENT OF FACTS
Appellant/Petitioner was accused of the murder of two men, Brandon
Gilstrap and Byron Carter, during the commission of a robbery.
2
GROUNDS FOR REVIEW RESTATED
1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).
2. The Court of Appeals erred in holding that the trial court’s application of
the 2013 amendment to section 12.31 P.C. when resentencing Henry was not
an unconstitutional ex post facto application fo the amended law.
3. The Court of Appeals erred in holding that Henry’s punishment on remand
does not violate Henry’s right to due process.
4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”
REASONS FOR REVIEW (ARGUMENT)
Petitioner submits that the Court of Appeals has so far departed from
the accepted and usual course of judicial proceedings, or so far sanctioned such a
departure by a lower court, as to call for an exercise of the Court of Criminal
Appeals’ power of supervision. This Court should review these issues because the
Court of Appeals has issued an opinion concerning the constitutionality of the
retroactive application of the law providing for a life sentence with the possibility
of parole to a 17 year old convicted of capital murder while his case was pending
appeal in response to the case of Miller v. Alabama, 132 S.Ct. 2455 (2012).
3
Appellant moves this Court to reexamine its holdings in these two
cases (Turner v. State, supra and Lewis v. State, supra) as they apply to the case at
bar in light of the additional issues raised in this case concerning Henry’s
challenges;(1) that the law used to assess his new punishment was applied ex post
fact; (2) that the new law relating to the assessment of his new punishment violates
his right to due process in its retroactive effect; and (3) that law relating to the
assessment of his new punishment constitutes a ‘Bill of Attainder.’
1. The Court of Appeals erred in holding that Henry’s automatic new
punishment of life with parole on remand did not violate the Eighth
Amendment to the United States Constitution based on decisions of this
Honorable Court in Turner v. State, 443 S.W.3d 128 (Tex. Crim. App. 2014)
and Lewis v. State, 428 S.W. 3d 860, 863 (Tex. Crim. App. 2014).
ARGUMENT
The Court of Appeals held that this Honorable Court has determined
that Henry was not entitled to an individualized sentencing hearing pursuant to the
‘Turner’ case. Appellant argues excerpts from the Miller decision in support of
his position that youthful offenders like himself should not be subject to
mandatory sentencing legislation of any nature. This is presented in an attempt to
persuade reconsideration of this Court’s holding in ‘Turner’ that the Miller case
does not prevent mandatory life sentences with parole for 17 year old offenders
4
who are convicted of Capital Murder in Texas and to preserve the issue for
possible further review in Federal Court if required in the case at bar.
Appellant argues from Miller that children are constitutionally
different from adults for purposes of sentencing, because juveniles have
diminished capacity and greater prospects for reform. It was stated that a child’s
moral culpability is lessened and enhanced that as the years go by and
neurological development occurs the deficiencies will be reformed. An offender’s
age as made clear in Graham v. Florida, 560 U.S. (2010) is relevant to the Eighth
Amendment and so “criminal procedure laws that fail to take defendant’s
youthfulness into account at all would be flawed.”
2. The Court of Appeals erred in holding that the trial court’s application of
the 2013 amendment to section 12.31 P.C. when resentencing Henry was not
an unconstitutional ex post facto application fo the amended law.
ARGUMENT
There was a defined crime of capital murder without a defined
punishment applicable to Appellant due to his age of 17 years at the time of the
offense. The newly amended statute Sec.12.31(a) thereby severely increased the
punishment to life. Appellant further submits that he should have been prosecuted
pursuant to the statutorily defined offense of murder pursuant to sec. 19.01 P.C.
that carried a constitutional punishment range of 5-99 years or life confinement
5
and up to a $10,000 fine for a first degree felony offense. This would give the
sentencer, judge or jury the necessary discretion to consider all the considerations
discussed in ‘Miller’ as factors in assessing punishment for ‘children’ offenders.
Additionally, Appellant elected that he be sentenced by a jury and not the Court in
such a situation. Appellant argues that he was wrongly and without due process
prosecuted for an offense (Capital Murder) that had no constitutional punishment
rather than the constitutional offense of murder.
3. The Court of Appeals erred in holding that Henry’s punishment on remand
does not violate Henry’s right to due process.
ARGUMENT
Although the state and federal ex post facto clauses are limitations on
legislative action, the judicial branch is limited by the same principle pursuant to
the state and federal due process clauses; an ex post facto doctrine prohibiting the
retroactive application of laws does apply to the judicial construction of laws
including both unforeseen constructions as well as clarifications of existing laws.
Lopez v. State, 928 S.W.2d 528 (Tex. Crim. App. 1996); State v. Jones. 192 Wis
2d 78, 532 N.W.2d 79 (1995). This was made clear by the United States Supreme
Court, which held that an unforeseeable judicial enlargement of a criminal statute,
applied retroactively, operates precisely like an ex post facto law, such as Article I
§ 10, of the United States Constitution forbids, and that since a state legislature is
6
barred by the Ex Post Facto Clause from passing such a law, it must follow that a
state appellate court is barred by the Due Process Clause from achieving precisely
the same result by judicial construction. U.S. v. Staten, 466 F.3d 708 (9th Cir.
2006). Due process concerns do require that the application of judicial decisions
to a pending defendant’s case complies with the concepts of notice, foreseeability,
and in particular the right to fair warning, U.S. v. Wade, 435 F.3d 829 (8th Cir.
2006).
4. The Court of Appeals erred in holding that Henry’s punishment on remand
pursuant to the 2013 amendment to section 12.31 P.C. did not constitute
unconstitutional “Bill of Attainder.”
ARGUMENT
Two elements of what constitutes a bill of attainder prohibited by the
state and federal constitutions are the presence of punishment which as a particular
law, provision or action challenged on a bill of attainder grounds is inflicted by an
authority other than a judicial authority and the lack of a judicial trial. State v.
Manussier, 129 Wash 2d 652, 921 P2d 473 (1996), U.S. v. Patzer, 15 F3d 944
(10th Cir. 1993) State v. Hazzard, 146 Idaho 37, 190 P3d 193 (Ct. App. 2008) U.S.
v. Obrien, 391 U.S. 367, 88 S.Ct. 1073, 20 L.Ed. 2d. 672 (1968).
A bill of attainder is a legislative act that applies either to named
individuals or to easily identifiable member of a group in such a way as to inflict
7
punishment on them without a judicial trial as in the case at bar in that Appellant
is a member of an identifiable class of persons under 18 years of age that have
been tried and convicted of the adult offense of capital murder in which the
mandatory and automatic punishment of life without parole is unconstitutional.
The remedy of life with parole as a mandatory and automatic punishment to be
applied to Appellant retrospectively is by legislature enactment and not by judicial
trial by the sentencer elected by Appellant, the jury. The resulting application of a
mandatory sentence of life assessed in this case; is therefore an unconstitutional
bill of attainder.
CONCLUSION
In conclusion, Appellant argues that in Henry’s case once the
statutory mandatory life without parole sentence was held unconstitutional, there
was no statutory sentencing scheme in effect at the time. As a remedy the
legislature passed a sentencing scheme of life with parole with a savings clause
making the punishment apply retroactively was an ex post facto application of a
new punishment. Appellant also argues that this attempted remedy for an
unconstitutional sentencing scheme as applied to Henry violated his right to due
process and or was effectively a ‘Bill of Attainder’ as applied to Henry. An
unforeseeable judicial enlargement criminal statute, applied retroactively operates
8
like an ex post facto law. Appellant argues that the application of the retroactive
application of the new sentencing scheme is a violation of due process pursuant to
Article One, Section Sixteen of the Texas Constitution and Article One Section
Nine of the U.S. Constitution by the retroactive application of the new law in the
Court of Appeals and now in this petition to be granted for further briefing on the
issue.
PRAYER
For the reasons stated, it is respectfully submitted that the Court of
Criminal Appeals should grant this Petition for Discretionary Review and then
reverse the judgment, and remand for a new trial.
Respectfully submitted by,
/s/ John Tatum
John Tatum
CERTIFICATE OF SERVICE
I, JOHN TATUM, do hereby certify that a true and correct copy of the
foregoing Petition for Discretionary Review for Petitioner was delivered to Susan
Hawk, Criminal District Attorney, Appellate Section, 11th floor, Frank Crowley
Criminal Courts Building, Dallas, Texas 75207, on this 4th day of August, 2015.
/s/ John Tatum
JOHN TATUM
9
CERTIFICATE OF COMPLIANCE OF WORD COUNT PURSUANT TO
APPELLATE RULE OF PROCEDURE 9.4
I certify that this document has 1,802 words pursuant to the definitions of
length and content in Rule 9.4. (C)(i)(2)(D)
A. Case Name: Terrance Henry
B. The Court of Criminal Appeals
C. The Type of Document: Petition for Discretionary Review
D. Party for whom the document is being submitted: Appellant
E. The Word Processing Software and Version Used to Prepare the Brief:
Word Perfect X7
Copies have been sent to all parties associated with this case.
/s/ John Tatum ,August 4th 2015
(Signature of filing party and date)
10
CERTIFICATE OF COMPLIANCE
I certify that this submitted e-mail attachment to file Petition for
Discretionary Review complies with the following requirements of the Court:
1. The petition is submitted by e-mail attachment;
2. The e-mail attachment is labeled with the following information:
A. Case Name: Terrance Henry
B. The Appellate Case Number: NO. 05-14-00197-CR
C. The Type of Document: Petition for Discretionary Review
D. Party for whom the document is being submitted: Appellant
E. The Word Processing Software and Version Used to Prepare the Motion :
Word Perfect X7
3. Copies have been sent to all parties associated with this case.
/s/ John Tatum ,August 4th 2015
(Signature of filing party and date)
John Tatum
(Printed name)
John Tatum, Attorney at Law
Emailed Copy of Petition
11
APPENDIX A
12
Henry, Terrance
Combined Opinion