Stiner, Daniel Jacob

3 HO IS
no. \H-l3-0lll8-t-R

IN THE
ORIGINAL
COURT OF APPEALS

OF TEXAS

DANIEL JACOB STINER, DBOBTawr-ir* •*»
DECEIVED IN
(Petitioner) COURT OF CRIMINAL APPEALS
vs> MAY 04 2015

the state of Texas, AbelAcosta,Clerk
(Respondent)

On appeal from Cause No. 14-13-01118-Cr, from the

Court of Appeals for the Fourteenth District of Texas

PETITION FOR DISCRETIONARY REVIEW

FILED IN
COURT OF CRIMINAL APPEALS
DANIEL JACOB STINER (Pro Se) maV 04 2015
3060 FM 3514 #1902902
Abel Acosta, Cierk
BEAUMONT, TEXAS, 77705
 TABLE OF CONTENTS

TABLE OF CONTENTS j i

INDEX OF AUTHORITIES ii-iii

STATEMENT REGARDING ORAL ARGUMENT iv..

STATEMENT OF THE CASE itf.',

STATEMENT OF PROCEDURAL HISTORY iv/:.

GROUNDS FOR REVIEW . .1

1. The evidence was insufficient as a matter of law to
sustain the conviction for the offense of Capital
Murder, whereas, the evidence failed to establish
Mr. Stiner's specific intent to cause the death of
the complainant J-

2. The automatic punishment of LIFE without parole violates
U.S. Constitution Amedment VIII, and/or Texas Constitution,
art. I, §13, whereas, there is no vehicle for consideration
of mitigating evidence which would justify a less severe
sentence, either by a jury or by parole authorities 1

ARGUMENTS - 2-15

PRAYER FOR RELIEF 15

APPENDIX EX-A

1 .
 INDEX OF AUTHORITIES

U.S. SUPREME COURT CASES:

ATKIN V, VIRGINIA, 536 u.s. 304.(2002).... 11

EDDINGS V. OKLAHOMA, 455 u.s. 104 (1982) 10

GRAHAM V. FLORDIA, 130S.Ct. 2011 (2000)...! ...10
HARMELIN V. MICHIGAN, 501 U.S. 957 (1999) 13

JACKSON V. VIRGINIA, 443 U.S. 307 (1979).. 4

LOCKETT V. OHIO, 438 U.S. 586 (1978).. 11

MILLER V. ALABAMA, 132 S.Ct. 2455 (2012) 8

OREGON V. HASS, 420 U.S. 714 (1975) 13

SOLEM V. HELM, 463 U.S. 277 (1983) 10

SUMNER V. SHUMAN, 483 U.S. 66 (1987) • 10

TROP V. DULLES, 356 U.S. 86 (1976) 11

WOODSON V. NORTH CAROLINA, 428 U.S. 280 10

TEXAS STATE CASES:

BROOKS V. STATE, 323 S.W.3d 893 (Tex.Crim.App. 2010) 4

CLEWIS V. STATE, 922 S.W.2d 126 (Tex.Crim.App. 1996) 4

FULLER V. STATE, 829 S.W.2d 191 (Tex.Crim.App. 1992) 3

HEITMAN V. STATE, 815 S..W.2d 681 (Tex .Crim .App . 1991) 13

HERNANDEZ V. STATE, 819 S.W.2d 806 (Tex.Crim.App. 1991) 3

HUGHS V. STATE, 897 S.W.2d 285 (Tex.Crim.App. 1994) 4

IBANEZ V. STATE, 749 S.W.2d 304 (Tex.Crim.App. 1986) 5

MENDEZ V. STATE, 138 S.W.Sd 334 (Tex.Crim.App. 2004) 6

MILLER V. STATE, 939 S.W.2d 681 (Tex.App.-El Paso 1996) 8

ROSS V. STATE, 861 S.W.2d 870 (Tex.Crim.App. 1992). 5

ii .
 INDEX OF AUTHORITIES (Cont.)

SLOAN V. STATE, 418 S.W.3d 884 (I4th ,.Dist.- 2013).. 9

SHOLARS V. STATE, 312 S.W.3d 694 (1st Dist. 2009) 5

THREADGILL V. STATE, 146 S.W.3d 654 (Tex.Crim.App. 2004) 4

TURNER V. STATE, 805 S.W.2d 423 (Tex.Crim.App. 1991) 5
WILKERSON V. STATE, 347 S.W.3d 720 (14EK Dist. 2011) 9
WRIGHT V. STATE, 28 S.W.3d 526 (Tex.Crim.App. 2000) 8

TEXAS STATUTES:

TEX.CONST. , ART. I, §13 8

TEX.R.EVID. , RULE 103(d).. 8

V.A.C.C.P. , ART. 12. 31 (a) (2) 13

V.A.C.C.P. , ART. 19.03(a)(2) , 3

T.R.A.P. , RULE 33.1... 6

ill
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner, hereinafter, referred to as, Mr. "STINER," is
presently incarcerated at the.Mark W. Stiles Unit, in Beaumont,
Texas, and is proceeding as a pro se, indigent litigator,
without the assistance of counsel, etc. Mr. Stiner would request
oral arguments, if in the event such is necessary to resolve
a factual and/or legal matter. However, appointment of counsel
would be needed for Mr. Stiner's representation.

STATEMENT OF CASE

Mr. Stiner was charged with the felony offense of Capital
Murder on March 30, 2011. (C.R. at 42). The State did not seek
the death penalty. On December 4, 2013, he entered a plea of
not guilty and proceeded to trial by jury. On December 6, 2013,
the jury found Mr. Stiner guilty of Capital Murder as charged.
(C.R. at 123). Mr. Stiner received an automatic sentence by
the trial court of LIFE without parole. (C.R. at 128). Mr. Stiner
filed a timely notice of appeal. (C.R. at 133).

STATEMENT OF PROCEDURAL HISTORY

On February 5, 2015, the Court of Appeals for the Fourteenth

District of Texas, AFFIRMED Mr. Stiner's conviction in Cause

No. 14-13-01118-CR. See: (EXHIBIT-A).

Mr. Stiner did not request a rehearing of the Court of Appeals
opinion and has now timely filed his Petition For Discretionary
Review, which is due on May 8, 2015.

iv.,
 GROUNDS FOR REVIEW

ONE: THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN

THE CONVICTION FOR THE OFFENSE OF CAPITAL MURDER, WHEREAS, THE
EVIDENCE FAILED TO ESTABLISH MR. STINER'S SPECIFIC INTENT TO

CAUSE THE DEATH OF THE COMPLAINANT:

Mr. Stiner asserts review of this issue is important, whereas,
not only did the Court of Appeals' decision conflict with another
Court of Appeals in regards to what constitutes "INTENT," but
the Court of Appeals also has decided an important question of
state and federal law in such a way that it conflicts with the

applicable decisions of the Court of Criminal Appeals, and/or
U.S. Supreme Court;

TWO: THE AUTOMATIC PUNISHMENT OF LIFE WITHOUT PAROLE VIOLATES

U.S. CONST. AMEND. VIII, AND/OR TEX. CONST., ART. I, §13, WHEREAS,
THERE IS NO VEHICLE FOR CONSIDERATION OF MITIGATING EVIDENCE

WHICH WOULD JUSTIFY A LESS SEVERE SENTENCE, EITHER BY A JURY

OR PAROLE AUTHORITIES:

Mr. Stiner asserts, review of this issue is important, whereas,
not only has the Court of Appeals decided an important question
of state and federal law that has not been, but should be

settled by the Court of Criminal Appeals, but the Court of Appeals
also decided an important question^ of state and federal law that

conflicts with U.S. Supreme Court decisions regarding Capital
sentencing and/or life without the possibility of parole.
 ARGUMENTS

ISSUE ONE: THE EVIDENCE IS INSUFFICIENT AS A METTER OF LAW TO

SUSTAIN THE CONVICTION FOR THE OFFENSE OF CAPITAL MURDER, WHEREAS,
THE EVIDENCE FAILED TO ESTABLISH MR. STINER'S SPECIFIC INTENT

TO CAUSE THE DEATH OF THE COMPLAINANT:

The State alleged that, on December 23, 2010, Mr. Stiner

entered a#convenience store to rob it. He saw the clerk go
through a STEEL door and he feared the clerk was going to obtain
a weapon, so he fired five shots into the closed STEEL door before

taking the cash register. Mr. Stiner then left the store with

the cash register. Mr. Stiner did not know the complainant had
been strucked by the bullets and died. (RR. 7, p.203-225);
(RR.7, p.16-29).

Mr. Stiner voluntarily turned himself in to police and admitted

to robbing the store of its cash register, but stressed that

he never intended for the complainant to be shot when he fired

the rounds into the closed STEEL door and that he lacked the

"conscious objective and desire" to cause the complainant's
death. (RR.7, p.203-225)

The Court of Appeals for the 14th District of Texas, held,

there was legally sufficient evidence from which the jury could

have found every element of Capital Murder beyond a reasonable

doubt, due to reason, although Mr. Stiner testified directly
that he did not intend to kill the complainant, the jury was

free to disbelieve that testimony and infer an opposite intent
from the surrounding circumstances. See: (EXHIBIT-A).
 The Court of Appeals based its opinion on the following
allegations:

" The record showed that appellant began firing
at the complainant nearly as soon as he entered the
convenience storey. Appellant testified that he knew
that guns were sometimes hidden in convenience stores
and the jury could have inferred from that testimony
that appellant fired at the complainant to neutralize
a perceived threat. That inference is further supported
by evidence that appellant used hollow-point bullets,
which are especially deadly, and he aimed his weapon
near the complainant's center of mass."

" Appellant also discharged his weapon five times,
when there were less dangerous means of scaring the
complainant."

The jury could have reasonably determined that
appellant wanted to eliminate the complainant, not just
scare him."

See: (EXHIBIT-A)

A person commits the offense of capital murder if he intentionally

commits murder while in the course of committing robbery. See:

§19.03(a)(2), Texas Penal Code. Capital murder requires INTENT

to kill. Id.

Intent can be established through circumstantial evidence

surrounding the crime. HERNANDEZ V. STATE, 819 S.W.2d 806, 810

(Tex.Crim.App. 1991); FULLER V. STATE, 829 S.W.2d 191 (Tex.Crim.App.

1992).
 A person commits the offense of feloney murder if he commits

or attempts to commit a felony, other than manslaughter, and

in the course of and in furtherance of the commission or attempt,
or in the 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: §19.02(a)(3),
Texas Penal Code.

Sufficiency of the evidence is measured by the standard

enunciated by the United States Supreme Court in JACKSON V.

VIRGINIA, 443 U.S. 307 (1979)(Whether, after viewing the evidence

in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the

crime beyond a reasonable doubt). See also: BROOKS V. STATE,

323 S.W.3d 893 (Tex.Crim.App. 2010)(overruling CLEWIS V. STATE,
922 S.W.2d 126 (Tex.Crim.App. 1996)).

As previously stated, the element distinguishing capital murder

from felony murder is the INTENT to kill. Felony murder is an

unintentional murder committed in the course of committing a
felony while capital murder includes an intentional murder

committed in the course of a felony. THREADGILL V. STATE, 146

S.W.3d 654 (Tex.Crim.App. 2004).

Capital murder is a result of conduct offense because it

requires that appellant have the specific INTENT to cause the

result (death). HUGHS V. STATE, 897 S.W.2d 285 (Tex.Crim.App.
1994).

4.
 The assaultive act which causes the death of an individual

must be intentional. IBANEZ V. STATE, 749 S.W.2d 804 (Tex.

Crim.App. 1986).

In the instant case, Mr. Stiner does not dispute that while

in the course of attempting to rob the complainant, he possessed

a gun that discharged, causing the complainant's death. Mr. Stiner,

however, presented evidence that he did not intend to kill the

complainant. In fact, it is undisputed that he fired his weapon

at a CLOSED STEEL DOOR, not at the complainant himself, and that

when he fled the convenience store, he did not know that the

complainant had been shot. The state failed to provide any evidence

to establish that Mr. Stiner had a conscious objective or desire

to kill the complainant. It is not reasonable to infer that

DEATH or serious bodily injury would result from firing a gun

into a closed STEEL door. See: ROSS V. STATE, 861 S.W.2d 870,

873 (Tex.Crim.App. 1992); TURNER V. STATE, 805 S.W.2d 423, 430

(Tex.Crim.App. 1991)(The mere INTENT to pull the trigger of a

firearm will not satisfy a conviction for capital murder).

See also: HUGHES, supra, at 295.

Although the law presumes an intent to kill if a gun is fired

at the complainant in close range and that the complainant's

death resulted from that shooting, see: SHOLARS V. STATE, 312

S.W.3d 694, 703 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd),

a rational trier of fact could not have made this presumption

under the facts of this case. Mr. Stiner fired his weapon AT

A CLOSED STEEL DOOR, not at the complainant.
 The State alleged that, since Mr. Stiner was an Army Reservist,

he had training in firing a 9.mm handgun, using Hollow-Point

bullets, whereas, all five bullet holes appeared to be aimed

at "center mass" of the steel door. (RR.6, p.52); (RR.7, p.127).

Not only did the State fail to present any evidence to establish

their claim that Mr. Stiner had training in using a 9.mm handgun,

thus, allowing the jury to SPECULATE of such, but the record

clearly reveals only ONE of the five shots fired into the closed

door hit a vital organ, causing the complainant's death.

(RR.7, p.21-23). The other four shots were nonfatal. Id}

In addition, there was no testimony stated by the State, or

defense, that indicated:

1. Mr. Stiner knew the complainant was DIRECTLY behind the closed

steel door;

2. That the shot grouping were all together at "center mass";

3. That the OFFICE was the only place for the complainant to

hide;

Testimonial evidence revealed that, not only were there many

other places the complainant could have hid inside the OFFICE

due to the size of the Office, but Mr. Stiner did NOT know the

complainant had chose to hid DIRECTLY behind the closed steel

door. For that reason, the evidence is insufficient to support

a finding that Mr. Stiner possessed the specific INTENT to kill

the complainant. Therefore, this court should reverse the conviction

and remand this case to the trial court for entry of a judgment

of conviction for the lesser-included offense of felony murder

and for sentencing proceedings in accordance with the reformed
judgment. 6.
ISSUE TWO: THE AUTOMATIC PUNISHMENT OF LIFE WITHOUT PAROLE VIOLATES

U.S. CONST. AMEND. VIII, AND/OR TEX.CONST., ART. I, §13, ./WHEREAS,

THERE IS NO VEHICLE FOR CONSIDERATION OF MITIGATING EVIDENCE

WHICH WOULD JUSTIFY A LESS SEVERE SENTENCE, EITHER BY A JURY

OR PAROLE AUTHORITIES:

On February 5, 2015, the Court of Appeals for the 14th District

of Texas, issued its opinion regarding the above stated claim,

holding that this claim of error, if any, had not been preserved

for appellate review due to trial counsel's failure to lodge
a timely and specific objection pursuant to T.R.A.P. 33.1.

See: fEXHIBIT-A).

Mr. Stiner asserts that, generally, a failure to object would

preclude review of a claim on direct appeal. However, exceptions

to the contemporaneous objection rul.e include: "Systematic or

Absolute requirements" which are not waived by the failure to

contemporaneously object. MENDEZ V. STATE, 138 S.W.3d 334, 342

(Tex.Crim.App. 2004).

Rights that are waiveable only are not waived by the failure

to contemporaneously object. MENDEZ, supra., at 342.

Such rights include, but are not limited to, the voluntary,

knowing, and intelligent waiver of constitutional rights including

the right to a plea of not guilty, the right to have the State

prove guilt beyond a reasonable doubt, and the right to confront

and cross examine witnesses against the defendant. Id. at 343.
 In addition, TEX.R.EVID. RULE 103(d), states, "In a criminal

case, nothing in these rules precludes taking notice of FUNDAMENTAL
ERRORS affecting substantial rights, although they were not

brought to the attention of the court."

Fundamental error in the admission or exclusion of evidence

when opposing counsel has not objected or made an offer of proof
is almost nonexistent in current Texas criminal jurisprudence.
See: MILLER V. STATE, 939 S,W.2d 681, 688 (Tex.App.-El Paso

1996, no pet.)(application of "fundamental error" to evidentiary
issues has been extraordinarily frugal).

Generally, a defendant must object even to "incurable" or

"unconstitutional" trial errors to preserve review of those
errors on appeal. WRIGHT V. STATE, 28 S.W.3d 526, 536 (Tex.Crim.

App. 2000). However, a defendant who does not object to evidence
at trial might not forfeit the appellate issue if it is based

on a novel constitutional right that had not been established

at the time of trial.

In the instent case, Mr. Stiner asserted on appeal for the
first time that, the automatic punishment of life without parole
violates U.S. Const. Amend. VIII, and/or art. I, §13, of the

Texas Const., whereas, there is no vehicle for consideration

of mitigating evidence which would justify a less severe sentence,
or parole determination.

It is unquestionable, a fundamental error would occur by
failing to acknowledge the holdings of MILLER V. ALABAMA,

132 S.Ct. 2455 (2012), which clearly hold, the 8th Amend, to

8.
the U.S. Constitution prohibits disproportionately harsh
punishments, which would occur when a defendant is sentenced

to life without the possibility of parole, without consideration

of mitigating circumstances. For that reason, this Court should

visit the question as to whether a contemporaneous objection
is required for preserving such an issue in question.

If this Court holds the Court of Appeals had erred by failing
to review this issue on appeal, Mr. Stiner would present to the
Court the following argument in support of his claim:

Because the jury convicted Mr. Stiner of capital murder, the

district court judge was required by law to assess punishment
at imprisonment for LIFE without the possibility of parole, see:
TEX. PENAL CODE, §12.31(a)(2). Mr. Stiner contends that this

sentence violates the prohibition of cruel and unusual punishment

found in the U.S. Constitution Amendment Eight, and Art.I, §13,

61 the Texas Constitution. .

This argument has been rejected in a number of cases, such

as SLOAN V. STATE, 418 S.W.3d 884, 891 (Tex.App.-Houston [14th

Dist.] 2013, pet. ref'd); and WILKERSON V. STATE, 347 S.W.3d

720, 722 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd)

(holding that an automatic sentence of life without parole did

not violate either the U.S. or Texas Constitution).
\

Mr. Stiner asserts that, the holdings of SLOAN, WILKERSON,

and the present case, violates the holdings set forth in U.S.

Supreme Court decisions, such as, SUMNER V. SHUMAN, 483 U.S.

66 (1987); EDDINGS V. OKLAHOMA, 455 U.S. 104 (1982); LOCKETT

V. OHIO, 438 U.S. 586 (1978); and WOODSON V. NORTH CAROLINA,

428 U.S. 280 (1976), whereas, in these cases, the Supreme Court
has prohibited mandatory imposition of capital punishment,
requiring that sentencing authorities consider the characteristics

of a defendant and the details of his offense before sentencing
him to DEATH.

In GRAHAM V. FLORIDA, 130 S.Ct. 2011, the Supreme Court held,

"life-without-parole terms share some characteristics with death

sentences that are shared by no other sentences. In other words,

"imprisoning an offender until he dies alters the remainder of

his life by a forfeiture that is irrevocable." See: SOLEM V.

HELM, 463 U.S. 277, 300 (1983).

In addition, the U.S. Supreme Court recently asserted that

it now "views life-without-parole as akin to the death penalty."
See: MILLER V. ALABAMA, 132 S.Ct. 2455, 2466 (2012).

This analogy made relevant the line of 8th amendment decisions

requiring individualized sentencing when the state seeks to

impose its "harshest penalties." GRAHAM, 130 S.Ct. at 2467.

Although the peculiar nature of JUVENILE life-without-parole

played a role in MILLER's rejection of mandatory sentencing,

the Court's opinion clearly supports the notion that LWOP is

highly disfavored under 8th amendment analysis.
10.
 The principles articulated in MILLER logically support the
conclusion that the 8th amendment requires that defendants have

an opportunity to offer mitigating evidence before 'being sentenced
to life-without-parole. The value of individualized sentencing
determinations, as articulated by the Court in WOODSON V.

NORTH CAROLINA, 428 U.S. 280 (1976), undermines the use of mandatory

sentences of life without the possibility of parole because it
is not possible to create a rule that can account for every

situation in which life-without the possibility of. parole is

the appropriate sentence. Also, the prohibition against restricting
the use of mitigation by the accused, as articulated in LOCKET
V. OHIO, 438 U.S. 586 (;1978), suggests that the mandatory sentence

of life without parole violates the 8th amendment because it
denies the accused the fundamental 3th amendment concept of

according offenders "human dignity." See: TROP V. DULLES, 356
U.S. 86, 100 (1976).

In ATKINS V. VIRGINIA, 536 U.S. 304 (2002), the U.S. Supreme

Court recognized the need to give greater scrutiny to the process
by which states sentence offenders in capital cases. This includes
a ban on the use of mandatory death sentences. Life without
parole sentences and death sentences share the reality of no
legitimate hope of release from confinement, no matter how
rehabilitated the offender becomes, prior to death.

As the Court recognized in GRAHAM, supra.,:

"As for punishment, life without parole is
the second most severe penalty permitted by law."

11.
 4

"It is true that a death sentence is unique
in its severity and irrevocability. Yet, life without
parole sentences share some characteristics with
death sentences that are shared by no other sentences.
The State does not execute the offender sentenced
to life without parole, but the sentence alters the
offender's life by a forfeiture that is irrevocable.
It deprives the convict of the most basic liberties
without giving hope of restoration..."

GRAHAM, 130 S.Ct. at 2027.

If a death sentence is no different than a sentence of

life without parole, then the principles of individualized

consideration and mitigation apply to sentences of life without

parole and any limitation on an offender's ability to include
evidence of why his life still has value is cruel and unusual.

As the Court in LOCKETT, supra., emphasized, the seriousness

of the sentence requires providing the offender an opportunity

to make his best arguments - without limitations - as to why
c.

he does not deserve to die in the custody of the State. See;...438

U.S. at 598. MILLER, supra., echoes this principle, emphasing the

significance of considering "the character and record of the
individual offender or the circumstances of the offense," including

"the possibility of compassionate or mitigating factors."

MILLER, 132 S.Ct. at 2473. See also: WOODSON, supra., 428 U.S.

at 304. ^

As the court made clear in, MILLER, WOODSON, and LOCKETT,

a State cannot impose a death sentence on an offender without
a sentencing determination made by a judge or jury. The decision
12.
to give a sentence of life without parole requires the court
to weigh the aggravating and mitigating circumstances of the
case before it imposes a sentence of life without parole. A

mandatory sentencing statute that does not allow consideration

of these issues and that does not provide for an alternative
sentencing option violate the 8th amendment to the U.S. Const.
<

For the additional following reasons, this court should hold

that C.C.P. art. 12.31(a)(2), violates the Texas Constitutional

counterpart of the 8th Amendment, namely TEX.CONST. Art. I, §13.

Federal constitutional law merely provides the "floor" for a

defendant's rights. State law may provide greater protection.
See = HEITMAN V. STATE, 815 S.W.2d 681 (Tex.Crim.App. 1991); and
OREGON V. HASS, 420 U.S. 714 (1975).

A thorough discussion of the concept of independent Texas
Constitutional law was presented in HEITMAN, and is incorporated
herein by reference.

HEITMAN, recognized that federal constitutional case law may
be persuasive as to Texas constitutional law, but not controlling.
Just as Texas courts .can.consider HARMELIN V. MICHIGAN, 501 U.S.

957, which foreclosed a holding that mandatory life-without-parole
sentences for juveniles violate the 8th amendment, but are not

limited by it, in considering Texas Constitutional law, they
also can consider the REASONING of GRAHAM and MILLER. In other

words, nothing prohibits a Texas Court from taking the reasoning
of MILLER, and other Supreme Court cases, and hold that it applies

to the Texas Constitution.

13.
The text of art. I, §13, reads in relevant part:

"Excessive bail shall not be required, nor excessive
fines imposed, nor CRUEL or UNUSUAL punishment inflicted."

Thus, the Texas Constitution refers to cruel OR unusual

punishment, rather than cruel AND unusual punishment as used
in the 8th amendment. For that reason, the Texas Constitution
expends the interpretation of what constitutes punishment that

"shocks the conscious" of our society.

It is unquestionable, Mr. Stiner's sentence of life without

the possibility of parole, not only violates State and Federal

Constitutional rights pretaining to cruel and/or unusual punishments,
but it denies human dignity in its fullest capacity.

Although, Mr. Stiner was not a juvenile at the time of his

offense, he was: (1) only 22 years old, (2) an Army Reservist,
(3) had NO prior convictions, and (4) fully assisted police with
their investigation by directing them to where he had left the

cash register, money, and other items of possible evidentiary
value. Mr. Stiner clearly revealed remorse for his actions, and

as stated previously, he had no INTENT of killing anyone at the

time he fired his firearm at the closed STEEL door. Mr. Stiner

merely fired his weapon at the door to scare anyone from attacking
him. (RR.7, p.62-65, 120-121, 191-196).

Regardless of whether or not Mr. Stiner was a juvenile at

the time of this offense, the automatic sentence of life without

parole still violates his right to be free from cruel and/or

unusual punishment pursuant to the 8th amendment to the U.S.
Constitution, and/or Art. I, §13, to the Texas Constitution,

14.
whereas, there is no vehicle for consideration of mitigating

evidence which would justify a less severe sentence, either by
a jury or by parole authorities. Therefore, Mr. Stiner prays
his Petition for Discretionary Review be granted, and the appropriate
relief be granted to relieve him of his illegal confinement.

OATH

1/ DANIEL JACOB STINER, do declare and certify, under the

penalty of perjury pursuant to Tex.Civ.Prac.Rem. Code, §132.001

thru §132.003, that the facts stated herein my Petition For
Discretionary Review are true and correct, and that a true and

correct copy of said PDR was served on Respondent, by U.S. Mail,

poastage prepaid, addressed to: Ms. Katherine Warren

(Asst.-.-.Dist. Attny.)

1201 Franklin St., 6th Fl.

Houston, Texas, 77002
Executed on thisgQApfi I20&
and

DANIEL JACOB STINER State Prosecutor

3060 FM. 3514 #1902902 P.O. Box 12405

BEAUMONT, TEXAS, 77705 Austin, Texas, 78711

15.
APPENDIX
EXHIBIT
Affirmed and Memorandum Opinion filed February 5, 2015.

In The

Jfamrteentfj touri of Appeals

NO. 14-13-01118-CR

DANIEL JACOB STINER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1290078

MEMORANDUM OPINION

In this appeal from a conviction for capital murder, we consider whether the
evidence is legally sufficient to support the conviction and whether an automatic
sentence of life without parole is cruel or unusual in violation of the United States
and Texas Constitutions. For the reasons explained below, we conclude that the
evidence is sufficient and that the automatic sentence is constitutional. We

therefore affirm the trial court's judgment.
 BACKGROUND

The complainant, a convenience store clerk, was gunned down at work by a
masked robber. Surveillance footage showed that the complainant had attempted to
run from the robber and hide behind a steel door. The robber shot five times at the

door, in an area tightly clustered at chest level. The bullets were hollow points,
which are designed to expand upon impact and inflict maximum damage. Each of
the bullets pierced the door and struck the complainant on the other side. The
robber quickly made off with the cash register, and the complainant died at the
scene.

Two days after the incident, appellant turned himself in for questioning and
confessed that he was the masked robber. He cooperated fully with investigators.

At trial, appellant testified that he lacked the specific intent to kill the
complainant, and that the jury should finding him guilty of felony murder, but not
capital murder. Appellant explained that he shot at the steel door because he
believed that a gun may have been hidden in the store, and he wanted to scare or
deter anyone from daring to use it.

The State countered that the killing was deliberate. It noted that appellant
had military training in firearms, and that he had aimed his weapon with precision
at the complainant's center of mass, where shots are often fatal. The State also
noted that' appellant could have easily scared the complainant in a non-deadly
manner, such as by firing a single shot in the air, or by verbally threatening the
complainant to stay in the back of the store, to where he had been fleeing.

The jury received instructions on both offenses, but it rejected appellant's
claim of felony murder and convicted him of the greater offense of capital murder.
Because the State did not seek the death penalty, the sentence was automatic.
Appellant received no opportunity to put on any evidence of mitigating
circumstances.

SUFFICIENCY OF THE EVIDENCE

To obtain a conviction for capital murder, the State was required to prove
that appellant murdered the complainant and that the murder was intentionally
committed during the course of a robbery. See Tex. Penal Code § 19.03(a)(2).
Appellant does not dispute that he killed the complainant, or that the killing
happened during the course of a robbery. He argues only that there is legally
insufficient evidence that he had the specific intent to kill.

When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is insufficient when the record contains no evidence, or
merely a "modicum" of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
3
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result. See Tex. Penal Code § 6.03(a). Intent
may be inferred from circumstantial evidence, such as acts, words, and conduct.
See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). If a person uses
a deadly weapon in a deadly manner, the inference is almost conclusive that the
person intended to kill. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim.
App. 1993).

Appellant testified directly that he did not intend to kill the complainant, but
the jury was free to disbelieve that testimony and infer an opposite intent from the
surrounding circumstances. The record showed that appellant began firing at the
complainant nearly as soon as he entered the convenience store. Appellant testified
that he knew that guns were sometimes hidden in convenience stores, and the jury
could have inferred from that testimony that appellant fired at the complainant to
neutralize a perceived threat. That inference is further supported by evidence that
appellant used hollow-point bullets, which are especially deadly, and he aimed his
weapon near the complainant's center of mass. See Evans v. State, 440 S.W.3d
107, 113 (Tex. App.—Waco 2013, pet. ref d) (holding that the jury could have
inferred an intent to kill from evidence that the defendant shot a convenience store
clerk in the chest using a gun loaded with hollow-point bullets). Appellant also
discharged his weapon five times, when there were less dangerous means of
scaring the complainant. See Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim.
App. 1992) (holding that the jury could^have inferred an intent to kill from
evidence that the defendant fired multiple shots, and most of them struck human
targets). The jury could have reasonably determined that appellant wanted to
eliminate the complainant, not just scare him. See Jones v. State, 944 S.W.2d 642,
647 (Tex. Crim. App. 1996) ("The jury may infer the intent to kill from the use of
a deadly weapon unless it would not be reasonable to infer that death or serious
bodily injury could result from the use of the weapon."); Aguirre v. State, 732
S.W.2d 320, 326 (Tex. Crim. App. 1982) (op. on reh'g) (holding that there was
legally sufficient evidence of an intent to kill, even though the defendant fired his
weapon through a door).

We conclude that there is legally sufficient evidence from which the jury
could have found every element of capital murder beyond areasonable doubt.
CRUEL AND UNUSUAL PUNISHMENT

Appellant argues next that an automatic sentence of life without parole
amounts to cruel and unusual punishment in violation ofboth the United States and
Texas Constitutions. Appellant relies on Miller v. Alabama, 132 S. Ct. 2455
(2012), which held that juvenile offenders could not be sentenced to a mandatory
term of life without parole. Even though appellant was an adult at the time of his
offense, he believes that the spirit ofMiller applies, and that he should have been
allowed to present evidence of mitigating circumstances.
The State responds that error, if any, has not been preserved, and we agree.
Before a party may present a complaint for appellate review, the record must
normally show that the complaint was made to the trial court by a timely request,
objection, or motion. See Tex. R. App. P. 33.1. Appellant never objected at trial
that the sentencing statute violated either the United States or Texas Constitutions.
Because no specific and timely objection was made, appellant has preserved
nothing for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.
5
Crim. App. 1996); Cerna v. State, 441 S.W.3d 860, 867-68 (Tex. App.—Houston
[14th Dist] 2014, pet. refd).

Even if error had been preserved, this court has routinely held that an
automatic sentence of life without parole is not unconstitutional when assessed
against an adult offender convicted of capital murder. See Sloan v. State, 418
S.W.3d 884, 891-92 (Tex. App.—Houston [14th Dist] 2013, pet. refd) (refusing
to extend Miller to the adult-offender context); Wilkerson v. State, 347 S.W.3d
720, 722-23 (Tex. App.—Houston [14th Dist.] 2011, pet. refd) (holding that an
automatic sentence of life without parole did not violate either the United States
Constitution or the Texas Constitution). Appellant's constitutional challenges are
therefore without merit.

CONCLUSION

The trial court's judgment is affirmed.

/s/ Tracy Christopher
Justice

Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).