PD-1006-15
PD-1006-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/10/2015 11:28:06 AM
Accepted 8/11/2015 4:08:44 PM
ABEL ACOSTA
NO. CLERK
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
August 11, 2015
IDENTITIES OF PARTIES AND COUNSEL
HONORABLE TRACY HOLMES JUDGE PRESIDING
133 N. Riverfront Blvd 363rd DISTRICT COURT
Frank Crowely Courts Bldg. OF DALLAS COUNTY, TEXAS
Dallas, Texas 75207
TERRANCE HENRY PETITIONER
TDCJ# 01742586
Clements Unit
9601 Spur 591
Amarillo, Texas 79107-9606
HONORABLE JOHN TATUM ATTORNEY FOR PETITIONER
990 S. Sherman St.
Richardson, Texas 75081
SBOT#19672500
HONORABLE SUSAN HAWK DISTRICT ATTORNEY
133 N. Riverfront Blvd DALLAS COUNTY, TEXAS
Frank Crowely Courts Bldg.
Dallas, Texas 75207
HONORABLE HEATH HARRIS ASSISTANT DISTRICT
ATTORNEY
133 N. Riverfront Blvd DALLAS COUNTY, TEXAS
Frank Crowely Courts Bldg.
Dallas, Texas 75207
i
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
CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . 10
ii
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . 11
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iii
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
iv
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
v
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 24th day of July, 2014.
/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
(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
(Signature of filing party)
John Tatum
(Printed name)
John Tatum, Attorney at Law
Emailed Copy of Petition
11
APPENDIX A
12
Affirmed as Modified and Opinion Filed July 10, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00197-CR
TERRANCE HENRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0959736-W
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill1
Opinion by Justice Lang
Terrance Henry appeals the trial court’s judgment convicting him of capital murder. On
remand from this court, the trial court assessed his punishment at imprisonment for life. Henry
raises four issues on appeal, arguing his punishment on remand is unconstitutional because the
law relating to the assessment of his new punishment: (1) violates the Eighth Amendment to the
United States Constitution; (2) was applied ex post facto; (3) violates his right to due process;
and (4) constitutes a bill of attainder.
We conclude Henry’s punishment on remand is not unconstitutional. Also, we conclude
the judgment incorrectly states that Henry pleaded guilty and modify the judgment accordingly.
The trial court’s judgment is affirmed as modified.
1
The Honorable Justice Bill Whitehill succeeded the Honorable Kerry FitzGerald, retired, a member of the original panel. Justice Whitehill has
reviewed the briefs and record before the Court.
I. PROCEDURAL BACKGROUND
A description of the factual background of this case may be found in Henry v. State, No.
05-11-00676-CR, 2012 WL 3631251 (Tex. App.—Dallas Aug. 24, 2012, no pet.)(mem. op., not
designated for publication). The jury found Henry, a seventeen year old at the time of the
offense, guilty of capital murder and assessed his punishment at life imprisonment without
parole. 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. Miller v. Alabama, 132 S. Ct. 2455 (2012); Turner v. State, 443 S.W.3d
128 (Tex. Crim. App. 2014)(per curiam); Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App.
2014). Henry appealed. In his first appeal, this Court reversed the trial court’s judgment as to
punishment and remanded the case for a new punishment hearing. Henry, 2012 WL 3631251; cf.
Turner, 443 S.W.3d at 129 (concluding court of appeals erred in remanding case to trial court for
new hearing as appellant was only entitled to have his sentence reformed from life without
parole to life with possibility of parole). On remand, the trial court assessed Henry’s punishment
at imprisonment for life, with the possibility of parole. This second appeal followed.
II. STANDARD OF REVIEW
The constitutionality of a criminal statute is a question of law that an appellate court
reviews de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In assessing a
statute’s constitutionality, an appellate court starts with the presumption that the statute is valid
and the legislature did not act arbitrarily or unreasonably in enacting the statute. See Rodriguez
v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). As the party challenging the statute, the
appellant has the burden of establishing its unconstitutionality. Rodriguez, 93 S.W.3d at 69. An
–2–
appellate court must uphold the statute if it can determine a reasonable construction that renders
it constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978).
III. EIGHTH AMENDMENT
In issue one, Henry argues his punishment on remand is unconstitutional because the law
applied when assessing his new punishment violates the Eighth Amendment to the United States
Constitution. Henry argues the United States Supreme Court’s rationale in Miller and use of
language from its prior opinions in Graham and Roper requires that a judge or jury must have
the opportunity to consider mitigating circumstances before imposing the harshest possible
penalty for juveniles. See Miller, 231 S. Ct. 2455 (Eighth Amendment forbids mandatory
sentence of life without parole for juveniles); Graham v. Florida, 560 U.S. 48 (2010)(Eighth
Amendment forbids sentence of life without parole for juvenile offender who did not commit
homicide); Roper v. Simmons, 543 U.S. 551 (2005)(death penalty cruel and unusual when
imposed on juvenile offender). The State responds that “no Texas court has ever questioned the
idea that a life sentence is appropriate for conduct such as Henry’s, and thus permissible to be
made mandatory or automatic.” Further, the State maintains that Miller does not forbid
mandatory sentencing schemes and once the trial court eliminated the “without parole”
provision, Henry’s sentence satisfied the narrow holding in Miller.
A. Applicable Law
The Eighth Amendment to the United States Constitution, as applied to the states through
the Fourteenth Amendment, prohibits cruel and unusual punishment and requires a criminal
sentence to be proportionate to the crime committed. See U.S. CONST. amend. VIII; Lackey v.
State, 881 S.W.2d 418, 420 (Tex. App.—Dallas 1994, pet. ref’d). Even when a sentence is
within the range permitted by law, a sentence may, in rare instances, be disproportionate to the
gravity of the offense. See Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006)
–3–
(“Subject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth
Amendment gross-disproportionality review, a punishment that falls within the legislatively
prescribed range, and that is based upon the sentencer’s informed normative judgment, is
unassailable on appeal.”). “The Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile offenders.” Miller, 132 S. Ct. at 2469;
Lewis, 428 S.W.3d at 863. However, juvenile offenders sentenced to life with the possibility of
parole are not entitled to individualized sentencing under the Eighth Amendment. Turner, 443
S.W.3d at 129; Lewis, 428 S.W.3d at 863. Texas courts have consistently held tht the mandatory
life sentence required under section 12.31 of the Texas Penal Code is not unconstitutional as
cruel and unusual punishment under the Eighth Amendment. E.g., Murkle v. State, 437 S.W.3d
17, 30 (Tex. App.—Fort Worth 2014, pet. dism’d, untimely filed).
B. Application of the Law to the Facts
Henry argues the Eighth Amendment requires that he receive an individualized
sentencing hearing. However, the Texas Court of Criminal Appeals has already determined that
juvenile offenders are not entitled to an individualized sentencing hearing.2 Turner, 443 S.W.3d
at 129; Lewis, 428 S.W.3d at 864–65. As a result, Henry was entitled to have his sentence
reformed from life without parole to life with the possibility of parole. See Turner, 443 S.W.3d
at 129; Lewis, 428 S.W.3d at 864–65. This is the new punishment Henry received when he was
resentenced. Accordingly, we conclude Henry’s punishment on remand did not violate the
Eighth Amendment.
Issue one is decided against Henry.
2
In his brief on appeal, Henry acknowledged the decision of the Texas Court of Criminal Appeals in Lewis and stated he “submits the following
issue[] on appeal . . . [to] preserve any future Federal Constitutional violation claim.”
–4–
IV. EX POST FACTO
In issue two, Henry argues his punishment on remand is unconstitutional because the law
used to assess his new punishment was applied ex post facto. Henry argues the holding in Miller
made the punishment originally authorized by the Texas Legislature void ab initio. As a result,
he claims that, for the offense he was convicted, there was no punishment applicable to him.
Consequently, Henry contends that the 2013 amendment to section 12.31 of the Texas Penal
Code “severely increased his punishment.” The State responds that “[t]his argument is pure
sophistry.” The State argues the 2013 amendment to section 12.31 “did not change the
punishment for capital murder: it was imprisonment for life when Henry committed the offense
and it was imprisonment for life when he was resentenced in August [] 2013.”
A. Applicable Law
Article I, section 9 of the United States Constitution states, “No . . . ex post facto Law
shall be passed,” and article I, section 10 prohibits the states from passing any ex post facto law.
U.S. CONST. art. I, §§ 9, 10. Similarly, article I, section 16 of the Texas Constitution states that
“[n]o . . . ex post facto law . . . shall be made.” TEX. CONST. art. 1, § 16. Only the legislature
can violate either the federal or state Ex Post Facto Clause. Ex parte Heilman, 456 S.W.3d 159,
163 (Tex. Crim. App. 2015).
Under the Texas or United States Constitution, an ex post facto law: (1) punishes as a
crime an act previously committed which was innocent when done; (2) aggravates a crime, or
makes it greater than it was, when committed; (3) changes the punishment and inflicts greater
punishment than the law attached to the criminal offense when committed; or (4) deprives a
person charged with a crime of any defense available at the time the act was committed. See
Peugh v. United States, 133 S. Ct. 2072, 2081 (2013)(citing Calder v. Bull, 3 U.S. (Dall.) 386,
390 (1798)); Collins v. Youngblood, 497 U.S. 37, 42 (1990); Rodriguez v. State, 93 S.W.3d 60,
–5–
66–67 (Tex. Crim. App. 2002); Ex parte Davis, 947 S.W.2d 216, 219–20 (Tex. Crim. App.
1996); Johnson v. State, 930 S.W.2d 589, 591 (Tex. Crim. App. 1996). The Ex Post Facto
Clause prohibits applying a new statute’s higher penalties to pre-statute conduct, but it does not
prohibit applying lower penalties. See Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012).
The Texas Court of Criminal Appeals has recognized that an unconstitutional statute is
void ab initio and when a statute is adjudged to be unconstitutional, it is as if it had never been,
i.e., such an unconstitutional statute is stillborn. See Smith v. State, No. PD-1790-13, 2015 WL
3895016, at *4 (Tex. Crim. App. June 24, 2015)(quoting Reyes v. State, 753 S.W.2d 382, 383
(Tex. Crim. App. 1988) and Ex parte Bockhorn, 138 S.W. 706, 707 (Tex. Crim. App. 1911)).
When a law under which a defendant is found guilty is declared unconstitutional, the law stands
as if the new law had never been enacted. See Ex parte Jones, 440 S.W.3d 628, 629 (Tex. Crim.
App. 2014)(if appellant incorrect in constitutional challenge, then amendment valid and his
offense is punishable as third-degree felony, but if he is correct, then his offense is punishable
under prior law as state-jail felony); Hurwitz v. State, 700 S.W.2d 919, 923–24 (Tex. Crim. App.
1985)(Teague, J., concurring). However, “[b]ecause the holding in Miller is limited to a
prohibition on mandatory life without parole for juvenile offenders, [defendants] are not entitled
to [new] punishment hearings.” See Lewis, 428 S.W.3d at 864 (addressing Eighth Amendment
challenge).
B. Application of the Law to the Facts
Before 2005, section 12.31 of the Texas Penal Code provided that “An individual
adjudged guilty of a capital felony in a case in which the state does not seek the death penalty
shall be punished by imprisonment in the institutional division for life” and “In a capital felony
trial in which the state does not seek the death penalty, prospective jurors shall be informed that
the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory
–6–
on conviction of the capital felony.” Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 101.1,
1993 Tex. Gen. Laws 3586, 3602–03 (amended 2005, 2009, and 2013). Accordingly, until 2005,
an individual adjudged guilty of a capital felony, in which the State did not seek the death
penalty, was punished with imprisonment for life.3 Ex parte Maxwell, 424 S.W.3d 66, 68 n.3
(Tex. Crim. App. 2014).
In 2005, the Texas Legislature amended section 12.31 to state that “An individual
adjudged guilty of a capital felony in a case in which the state does not seek the death penalty
shall be punished by imprisonment in the institutional division for life without parole” and “In a
capital felony trial in which the state does not seek the death penalty, prospective jurors shall be
informed that the state is not seeking the death penalty and that a sentence of life imprisonment
without parole is mandatory on conviction of the capital felony.” Act of May 28, 2005, 79th
Leg., ch. 787, § 1, 2005 Tex. Gen. Laws 2705 (amended 2009 and 2013). Also, in 2005, the
United States Supreme Court held that the Eighth Amendment bars the execution of juveniles,
even when they commit murder. Roper, 543 U.S. 551. In 2009, section 12.31 was amended to
distinguish cases that had been transferred pursuant to section 54.02 of the Texas Family Code.
See Ex parte Maxwell, 424 S.W.3d at 68 n.3. Specifically, the statute as amended in 2009 stated:
§ 12.31. Capital Felony
(a) An individual adjudged guilty of a capital felony in a case in which the
state seeks the death penalty shall be punished by imprisonment in the Texas
Department of Criminal Justice for life without parole or by death. An individual
adjudged guilty of a capital felony in a case in which the state does not seek the
3
Section 12.31 of the Texas Penal Code has imposed life imprisonment since it was first enacted in 1973. Beginning in 1973, section 12.31 of
the Texas Penal Code provided that “an individual adjudged guilty of a capital felony shall be punished by confinement . . . for life or by
death” and “prospective jurors shall be informed that a sentence of life imprisonment or death [was] mandatory on conviction of a capital
felony.” Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art. 2, § 2, 1973 Tex. Gen. Laws 1122, 1124 (amended 1991, 1993, 2005, 2009, and
2013). In 1991, the Texas Legislature amended section 12.31, in part, to state, “An individual adjudged guilty of a capital felony in a case in
which the state does not seek the death penalty shall be punished by confinement in the institutional division for life” and “In a capital felony
trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and
that a sentence of life imprisonment is mandatory on conviction of the capital felony.” Act of May 27, 1991, 72nd Leg., R.S., ch. 652, § 12 ,
1991 Tex. Gen. Laws 2394, 2397 (amended 1993, 2005, 2009, and 2013).
–7–
death penalty shall be punished by imprisonment in the Texas Department of
Criminal Justice for:
(1) life, if the individual’s case was transferred to the court under Section
54.02, Family Code; or
(2) life without parole.
(b) In a capital felony trial in which the state seeks the death penalty,
prospective jurors shall be informed that a sentence of life imprisonment without
parole or death is mandatory on conviction of a capital felony. In a capital felony
trial in which the state does not seek the death penalty, prospective jurors shall be
informed that the state is not seeking the death penalty and that:
(a) a sentence of life imprisonment is mandatory on conviction of the
capital felony, if the case was transferred to the court under Section 54.02,
Family Code; or
(b) a sentence of life imprisonment without parole is mandatory on
conviction of the capital felony.
Act of May 29, 2009, 81st Leg., ch. 765, § 1, 2009 Tex. Gen. Laws 1930 (amended 2013); Ex
parte Maxwell, 424 S.W.3d at 68 n.3. This was the law in effect at the time of Henry’s
conviction and original sentencing.
In 2012, 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 the
possibility of parole is mandatory, rather than based on an individualized sentencing assessment.
Miller, 132 S. Ct. 2455; Turner, 443 S.W.3d at 128; Lewis, 428 S.W.3d at 861. However,
contrary to Henry’s contention that Miller declared the punishment authorized by the Texas
Legislature at the time of his original sentence void ab initio, the United States Supreme Court
did not announce a categorical ban on assessing life without parole on minors. See Lewis, 428
S.W.3d at 863; Carmon v. State, 456 S.W.3d 594, 599 (Tex. App.—Houston [1st Dist.] 2014,
pet. ref’d).
“In response to the [United States] Supreme Court’s opinion in Miller, the Texas
Legislature amended the capital sentencing statute to provide that life imprisonment, with the
–8–
possibility of parole, is the mandatory sentence for defendants convicted of a capital offense
which was committed when the defendant was younger than eighteen.” Turner, 443 S.W.3d at
129 n.2. Specifically, section 12.31 of the Texas Penal Code was amended to state:
§ 12.31. Capital Felony
(a) An individual adjudged guilty of a capital felony in a case in which the
state seeks the death penalty shall be punished by imprisonment in the Texas
Department of Criminal Justice for life without parole or by death. An individual
adjudged guilty of a capital felony in a case in which the state does not seek the
death penalty shall be punished by imprisonment in the Texas Department of
Criminal Justice for:
(1) life, if the individual committed the offense when younger than 18
years of age; or
(2) life without parole, if the individual committed the offense when 18
years of age or older.
(b) In a capital felony trial in which the state seeks the death penalty,
prospective jurors shall be informed that a sentence of life imprisonment without
parole or death is mandatory on conviction of a capital felony. In a capital felony
trial in which the state does not seek the death penalty, prospective jurors shall be
informed that the state is not seeking the death penalty and that:
(a) a sentence of life imprisonment is mandatory on conviction of the
capital felony, if the individual committed the offense when younger than
18 years of age; or
(b) a sentence of life imprisonment without parole is mandatory on
conviction of the capital felony, if the individual committed the offense
when 18 years of age or older.
Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws 4802 (codified at TEX.
PENAL CODE ANN. § 12.31 (West Supp. 214)). This amendment became effective on July 22,
2013.
On August 15, 2013, the trial court assessed Henry’s new punishment at life
imprisonment, with the possibility of parole, in accordance with the 2013 amendments to section
–9–
12.31.4 See TEX. PENAL CODE ANN. § 12.31. The 2013 Session Laws, amending section 12.31,
included a savings clause that states:
Section 3. The change in law made by this Act:
(1) applies to a criminal action pending, on appeal, or commenced on or after
the effective date [July 22, 2013] of this Act, regardless of whether the criminal
action is based on an offense committed before, on, or after that date; and
(2) does not affect a final conviction that exists on the effective date of this
Act.
Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also
Turner, 443 S.W.3d at 129 n.2.
The change in Henry’s punishment did not inflict greater punishment than the law
attached to the criminal offense when Henry committed it. Compare Act of May 29, 2009, 81st
Leg., ch. 765, § 1, 2009 Tex. Gen. Laws at 1930 (requiring mandatory sentence of life without
parole) with Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws at 4802
(requiring mandatory sentence of life). Initially, Henry was sentenced to mandatory life without
the possibility of parole. This is the second most severe penalty permitted in Texas. Meadoux v.
State, 325 S.W.3d 189, 195 (Tex. Crim. App. 2010). On remand, Henry was sentenced to life
with the possibility of parole, a less severe punishment. See Carmon, 456 S.W.3d at 599. The
prohibition against the application of more severe punishment laws ex post facto does not
prohibit the application of new lower penalties after the effective date of the new legislation. See
Dorsey, 132 S. Ct. at 2332. Further, regardless of whether the law in effect before the 2005
amendment to section 12.31 of the Texas Penal Code or the 2013 amendment was applied,
4
During the resentencing hearing, the trial court stated:
Mr. Henry was found guilty of capital murder by a jury on the 7th day of March, 2011. The [trial court] assessed
punishment: The statutory punishment of life confinement in the Texas Department of Criminal Justice without parole.
Since that time, the Legislature has amended the statute. This sentence is no longer legal and [Henry] will be resentenced
to life in the penitentiary with the possibility of parole.
–10–
Henry’s punishment on remand would have been the same, i.e., life, with the possibility of
parole. Compare Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 101.1, 1993 Tex. Gen. Laws
at 3602–03 (requiring mandatory sentence of life) with Act of July 11, 2013, 83rd Leg., 2d S.C.,
ch. 2, § 1, 2013 Tex. Gen. Laws at 4802 (requiring mandatory sentence of life).
Accordingly, we conclude the trial court’s application of the 2013 amendment to section
12.31 when resentencing Henry was not an unconstitutional ex post facto application of the
amended law because the punishment provided for in the 2013 amendment was less severe. In
addition, we conclude Henry has not suffered harm because the mandatory punishment under the
law in effect before the 2005 amendment to section 12.31 was the same as the new punishment
assessed pursuant to the 2013 amendment.
Issue two is decided against Henry.
V. DUE PROCESS
In issue three, Henry argues his punishment on remand is unconstitutional because the
law relating to the assessment of his new punishment violates his right to due process. The State
responds that the amended statute can be given retroactive effect.
A. Applicable Law
The Texas Court of Criminals Appeals defined retroactive laws:
A retroactive law is one meant to act on things that are past. As such, a statute is
retroactive which takes away or impairs vested rights acquired under existing
laws or creates new obligations, imposes new duties, or adopts a new disability in
respect to transactions or considerations already past, and which affects acts or
rights accruing before it came into force.
Ex Parte Abahosh, 561 S.W.2d 202, 203–04 (Tex. Crim. App. 1978). In other words, a law is
retroactive if it changes the legal consequences of acts before its effective date. In re Ramirez,
184 S.W.3d 392, 395 (Tex. App.—Dallas 2006, orig. proceeding).
–11–
The Fourteenth Amendment provides in part: “[the] State [shall not] deprive any person
of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. The
Due Process Clause also protects the interests in fair notice and repose that may be compromised
by retroactive legislation; a justification sufficient to validate a statute’s prospective application
under the Clause “may not suffice” to warrant its retroactive application. Landgraf v. USI Film
Prods., 511 U.S. 244, 266 (1994); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976).
The Texas Constitutional due-process provision provides: “No citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised,
except by the due course of the law of the land.” TEX. CONST. art. I, § 19. In addition, article 1,
section 16 of the Texas Constitution provides, “No . . . retroactive law . . . shall be made.” TEX.
CONST. art. 1, § 16.
A judicial decision having an unjust retroactive application is barred by the due process
provisions of the Fourteenth Amendment to the United States Constitution. Ex Parte Bonham,
707 S.W.2d 107, 108 n.1 (Tex. Crim. App. 1986). “Although this limitation is often regarded as
the judicial cognate of the ex post facto prohibition, the [United States] Supreme Court has made
clear that the two are not co-extensive.” Ex Parte Heilman, 456 S.W.3d at 166 (citing Rogers v.
Tennessee, 532 U.S. 451, 460 (2001)). Courts can violate the due process provisions through an
unforeseeable judicial enlargement of a criminal statute applied retroactively. Bouie v. City of
Columbia, 378 U.S. 347, 353 (1964); Ex Parte Heilman, 456 S.W.3d at 166. “If a judicial
construction of a criminal statute is unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Bouie,
378 U.S. at 354.
“A state judicial decision may not operate retroactively if it has the effect of depriving
persons of fair warning of what conduct will give rise to which criminal penalties.” Proctor v.
–12–
State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998) distinguished on other grounds by Grado v.
State, 445 S.W.3d 736 (Tex. Crim. App. 2014). But a decision may apply retroactively if it does
not alter an offense’s definition, range of punishment, or substantive defenses. Proctor, 967
S.W.2d at 845.
B. Application of the Law to the Facts
As previously noted, the 2013 Session Laws, amending section 12.31, included a savings
clause that states it “applies to a criminal action pending, on appeal, or commenced on or after
the effective date [July 22, 2013] 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 S.C.,
ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also Turner, 443 S.W.3d at 129 n.2. However,
there is nothing to suggest the 2013 amendment to section 12.31 or the trial court’s application of
the amended law was “unexpected and indefensible” such that it offended the due process
principle of fair warning. The trial court’s application of the 2013 amendment did not
retroactively alter the definition of capital murder, the range of punishment for a capital felony,
or the substantive defenses that were available. The punishment before and after the 2013
amendment was life imprisonment. Accordingly, we conclude Henry’s punishment on remand
does not violate his right to due process.
Issue three is decided against Henry.
VI. BILL OF ATTAINDER
In issue four, Henry argues his punishment on remand is unconstitutional because the law
relating to the assessment of his new punishment constitutes a Bill of Attainder. Henry claims
the remedy of life with the possibility of parole as a mandatory and automatic punishment was
applied to him by legislative enactment, not by judicial trial by jury as he elected. Henry argues
he is a member of an identifiable class of persons under eighteen years of age that have been
–13–
tried and convicted of the adult offense of capital murder. The State responds that although “the
legislature retroactively changed the parole law applicable to Henry . . . [his punishment is] a
result of a judicial proceeding that fairly determined his guilt and punishment, and not by use of
legislative power to pass upon his guilt in the absence of any of the protective safeguards of a
trial.”
A. Applicable Law
Article I, section 9 of the United States Constitution states, “No Bill of Attainder . . . shall
be passed,” and article I, section 10 prohibits the states from passing any Bill of Attainder. U.S.
CONST. art. I, §§ 9, 10. Similarly, article I, section 16 of the Texas Constitution states that “[n]o
bill of attainder . . . shall be made.” TEX. CONST. art. 1, § 16. The prohibitions on ex post facto
laws and bills of attainder are obviously closely related. See, e.g., California Dept. of
Corrections v. Morales, 514 U.S. 499, 520 n.4 (1995)(Stevens, J., dissenting, joined by Souter,
J.); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138–139 (1810).
The prohibition on “Bills of Attainder” in Art. 1 §§ 9–10, prohibits legislatures from
singling out disfavored persons and meting out summary punishment for past conduct.
Landgraf, 511 U.S. at 266; United States v. Brown, 381 U.S. 437, 456–62 (1965); Landgraf
Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 137 (Tex. 2010). To constitute a bill of
attainder, the statute must: (1) specify affected persons; (2) impose punishment; and (3) fail to
provide for a judicial trial. See Selective Servc. Sys. v. Minnesota Public Interest Research Grp.,
468 U.S. 841, 847 (1984).
A bill of attainder is a legislative act which imposes punishment on a designated person
or class of persons without the benefit of a trial. See, e.g., Selective Servc. Sys., 468 U.S. at 847;
Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 468 (1977); United States v. Lovett, 328 U.S. 303,
315–316 (1946); see also Jones v. State, No. 03-97-00592-CR, 1999 WL 236067, at *3 (Tex.
–14–
App.—Austin Apr. 15, 1999, pet. ref’d)(not designated for publication); Golden v. State, No. 11-
97-00109-CR, 1998 WL 34194008, at *3 (Tex. App.—Eastland Sept. 17, 1998, no pet.)(no
designated for publication). Historically, bills of attainder generally named the persons to be
punished. Selective Serv., 468 U.S. at 847. However, the singling out of an individual for
legislatively prescribed punishment constitutes an attainder whether the individual is called by
name or described in terms of conduct which, because it is past conduct, operates only as a
designation of particular persons. Selective Serv., 468 U.S. at 847; Communist Party of U.S. v.
Subversive Activities Control Bd., 367 U.S. 1, 86 (1961).
Even if the specificity element is satisfied, a statue does not implicate the Bill of
Attainder Clause unless it inflicts punishment on the specified individual or group. Selective
Serv., 468 U.S. at 851. The severity of a sanction does not determine its character as
punishment. Selective Serv., 468 U.S. at 851; Flemming v. Nestor, 363 U.S. 603, 616 (1960). In
deciding whether a statute inflicts forbidden punishment, there are three inquiries: (1) whether
the challenged statute falls within the historical meaning of punishment; (2) whether the statute,
viewed in terms of the type and severity of burdens imposed, reasonably can be said to further
nonpunitive legislative purposes; and (3) whether the legislative record evinces a legislative
intent to punish. Selective Serv., 468 U.S. at 852.
The Bill of Attainder Clause was not intended to be a narrow, technical prohibition, but
an implementation of the separation of powers. United States v. Brown, 381 U.S. 437, 442
(1965); Robinson, 335 S.W.3d at 137. It is a general safeguard against legislative exercise of the
judicial function—trial by legislature. Brown, 381 U.S. at 442; Robinson, 335 S.W.3d at 137.
B. Application of the Law to the Facts
Initially, we note that we need not inquire as to whether the 2013 amendment to section
12.31 contains the necessary element of punishment. It was clearly penal in nature as it was
–15–
designed to impose criminal punishment for capital felonies. See U.S. v. O’Brien, 391 U.S. 367,
383 n.30 (1968). Accordingly, we turn to whether the 2013 amendment to section 12.31
specifies affected persons and fails to provide for a judicial trial.
Section 12.31 of the Texas Penal Code does not apply until a defendant commits a capital
felony. As a result, it does not target named individuals or easily ascertainable members of a
group. Further, before section 12.31 affects a person, that person must be found guilty of a
capital felony through the judicial process. Henry’s guilt was not pronounced by 2013
amendment to section 12.31, but was determined by a jury. Also, Henry was resentenced by a
member of the judiciary, not the legislature. Further, Henry was represented by counsel during
his trial and, in this case, on resentencing. As a result, he was provided a full and fair
opportunity to be heard. See United States v. Siepker, No. C01-3057-MWB, 2008 WL 5273088,
at *17 (N.D. Iowa Dec. 18, 2008)(mem. op.)(statute providing for increased sentence if
defendant convicted of offense while released was not a Bill of Attainder because before statute
affected defendant, he must be found guilty of one of listed crimes and his guilty was determined
by jury); United States v. Davis, 27 Fed. Appx. 592, 600 (6th Cir. 2001)(statute seeking to
impose punishment on individuals adjudicated as dangerous and possessing a firearm was not
prohibited Bill of Attainder because defendant’s actions were found by jury); United States v.
Chandler, 950 F.Supp. 1545, 1581 (N.D. Ala. 1996)(defendant who filed habeas petition was
tried, convicted, and sentenced to death by jury, so Department of Justice’s lethal injection
regulations did not subject defendant to trial by legislature according to Constitutional
prohibition of Bills of Attainder), aff’d on other grounds, 218 F.3d 1305 (11th Cir. 2000).
Accordingly, we conclude Henry’s punishment on remand pursuant to the 2013 amendment to
section 12.31 did not constitute an unconstitutional Bill of Attainder.
Issue four is decided against Henry.
–16–
VII. MODIFICATION OF THE JUDGMENT
Although neither party raises the issue, we observe the judgment states that Henry’s “Plea
to the Offense” was “Guilty” and that the “Terms of the Plea Bargain” were “Open.” However,
Henry pleaded “not guilty” and the jury found him “guilty.”
An appellate court has the authority to modify an incorrect judgment to make the record
speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993)(en banc); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we conclude the trial
court’s judgment should be modified to reflect the correct statute for the offense, which is section
22.04 of the Texas Penal Code. Issue one of the State’s cross-appeal is decided in favor of the
State.
Accordingly, we conclude the trial court’s judgment should be modified to state that
Henry’s “Plea to the Offense” was “Not Guilty” and the “Terms of Plea Bargain” are “N/A.”
VIII. CONCLUSION
Henry’s punishment on remand is not unconstitutional. Also, the judgment incorrectly
states that Henry pleaded guilty and the judgment is modified accordingly.
The trial court’s judgment is affirmed as modified.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140197F.U05
–17–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TERRANCE HENRY, Appellant On Appeal from the 363rd Judicial District
Court, Dallas County, Texas
No. 05-14-00197-CR V. Trial Court Cause No. F-0959736-W.
Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee Brown and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The portion of the judgement that states the “Plea to the Offense” was “Guilty” is
modified to state “Not Guilty.” Also, the portion of the judgement that states the
“Terms of the Plea Bargain” were “Open” is modified to state “N/A.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 10th day of July, 2015.
–18–