Fourth Court of Appeals
San Antonio, Texas
OPINION
Nos. 04-19-00192-CR & 04-19-00193-CR
Johnny Joe AVALOS,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2016-CR-10374, 2018-CR-7068
Honorable Lori I. Valenzuela, Judge Presiding
OPINION ON EN BANC RECONSIDERATION
Opinion by: Rebeca C. Martinez, Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice (joined by Sandee Bryan Marion, Chief
Justice and Patricia O. Alvarez, Justice)
Sitting en banc: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: December 30, 2020
REVERSED AND REMANDED
This court previously ordered en banc reconsideration. We now withdraw our prior
opinions and judgment and substitute today’s opinions and judgment in their stead.
04-19-00192-CR & 04-19-00193-CR
INTRODUCTION
Johnny Joe Avalos, an adult, intellectually disabled person, pled guilty and was convicted
of two counts of capital murder. The State did not seek the death penalty. When the death penalty
is not imposed on a person convicted of capital murder, Texas law requires the automatic
imposition of a life sentence without parole. See TEX. PENAL CODE ANN. § 12.31(a)(2). Avalos
was sentenced in accordance with this statute, and, consequently, the trial court did not consider
mitigating factors related to Avalos’s intellectual disability during the punishment phase of trial.
The harshest penalty allowed by law for an intellectually disabled person is life
imprisonment without parole. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that an
intellectually disabled person may not be sentenced to death). On appeal, Avalos argues that the
automatic imposition of life sentences without parole amounted to cruel and unusual punishment
under the Eighth Amendment to the United States Constitution and Article I, section 13, of the
Texas Constitution because he was denied an individualized assessment prior to the imposition of
these harshest penalties. We agree with Avalos that the Eighth Amendment prohibits the automatic
imposition of the punishment of life imprisonment without parole for an intellectually disabled
person, and, consequently, we reverse the trial court’s judgments and remand for resentencing.
PROCEDURAL BACKGROUND
Avalos pled guilty to two counts of capital murder. In his plea agreements, he and the State
mutually agreed and recommended that punishment be assessed at “capital life.” “Capital life”
refers to section 12.31(a)(2) of the Texas Penal Code, which provides: “An individual adjudged
guilty of a capital felony in a case in which the state does not seek the death penalty shall be
punished by imprisonment in the Texas Department of Criminal Justice for . . . life without parole,
if the individual committed the offense when 18 years of age or older.” TEX. PEN. CODE ANN.
§ 12.31(a)(2). Avalos filed motions in the trial court challenging the constitutionality of his
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automatic sentences. He argued the Supreme Court’s decisions under the Eighth Amendment
prohibit the automatic imposition of a life sentence without parole for an intellectually disabled
person. The trial court denied Avalos’s motions, accepted his guilty pleas, found him guilty of
both capital murder offenses, and pronounced his life sentences in open court. Avalos timely
appealed. 1
THE CONSTITUTIONALITY OF SECTION 12.31(a)(2)
AS APPLIED TO INTELLECTUALLY DISABLED PERSONS
Avalos’s sole issue on appeal is whether section 12.31(a)(2)’s requirement of an automatic
life sentence without parole for capital murder, when the death penalty is not imposed, is
unconstitutionally cruel and unusual as applied to intellectually disabled persons. Although neither
the United States Supreme Court nor the Texas Court of Criminal Appeals have addressed this
issue directly, we agree with Avalos that the prohibition on the automatic imposition of the
punishment follows from the Supreme Court’s holdings in Atkins and the Court’s individualized
sentencing cases.
The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishments.
See U.S. CONST. amend. VIII. Article I, section 13, of the Texas Constitution prohibits
punishments that are cruel or unusual. TEX. CONST. art. I, § 13. Because there is “no significance
in the difference between the Eighth Amendment’s ‘cruel and unusual’ phrasing and the ‘cruel or
unusual’ phrasing of Art. I, Sec. 13 of the Texas Constitution,” we address Avalos’s issue in light
of Supreme Court decisions. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
1
After oral argument, we granted the parties’ joint motion to abate these appeals for the trial court to make an express
finding as to whether Avalos is intellectually disabled. Without objection by the State, the trial court found that Avalos
is intellectually disabled under the standards announced by the Supreme Court. See Moore v. Texas, 139 S. Ct. 666
(2019); Moore v. Texas, 137 S. Ct. 1039 (2017).
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In Atkins, the Supreme Court barred the execution of intellectually disabled individuals
because the sentence is cruel and unusual punishment within the meaning of the Eighth
Amendment. Atkins, 536 U.S. at 321. The Court later explained that the decision falls within a
line of cases striking down “sentencing practices based on mismatches between the culpability of
a class of offenders and the severity of a penalty.” Miller v. Alabama, 567 U.S. 460, 470 (2012);
see also Graham v. Florida, 560 U.S. 48, 60–61 (2010). Central to the Court’s reasoning in these
cases is “the basic precept of justice that punishment for crime should be graduated and
proportioned to both the offender and the offense.” Miller, 567 U.S. at 469 (quotations omitted).
Intellectually disabled defendants are “categorically less culpable than the average criminal.”
Atkins, 536 U.S. at 316. Intellectually disabled individuals “frequently know the difference
between right and wrong and are competent to stand trial,” but “by definition[,] they have
diminished capacities to understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to
understand the reactions of others.” Id. at 318. These impairments “make it less defensible to
impose the death penalty as retribution for past crimes and less likely that the death penalty will
have a real deterrent effect.” Roper v. Simmons, 543 U.S. 551, 563 (2005) (citing Atkins, 536 U.S.
at 319–20). Additionally, by nature of their diminished faculties, intellectually disabled defendants
face an enhanced possibility of false confessions and a lessened ability to give meaningful
assistance to their counsel. Atkins, 536 U.S. at 320–21.
Following Atkins, the Supreme Court decided that juvenile offenders, like intellectually
disabled offenders, are in a class of defendants that is “constitutionally different” from other
defendants for sentencing purposes. Miller, 567 U.S. at 471. 2 Members of each class of
2
The State argues that we are bound by Harmelin v. Michigan, 501 U.S. 957 (1991), which held that the automatic
imposition of a life sentence without parole for an adult was not cruel and unusual punishment. See id. at 961, 996.
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defendants have diminished culpability compared to other offenders. See Roper, 543 U.S. at 570–
71; Atkins, 536 U.S. at 318–20. While differences exist, this fundamental similarity makes the
imposition of the death penalty excessive for individuals in each group. See Roper, 543 U.S. at
572–73; Atkins, 536 U.S. at 321. Therefore, the harshest penalty that can be imposed on
individuals in each group is life imprisonment without parole. See Miller, 567 U.S. at 470, 476–
78; cf. Graham, 560 U.S. at 69 (“[L]ife without parole is the second most severe penalty permitted
by law.” (quotations omitted)). As with a death sentence, imprisonment until an offender dies
“alters the remainder of [the offender’s] life by a forfeiture that is irrevocable.” See Miller, 567
U.S. at 474–75 (quotations omitted). 3
The Supreme Court held in Miller that a mandatory imposition of a life sentence without
parole on a juvenile “runs afoul of . . . [the] requirement of individualized sentencing for
defendants facing the most serious penalties.” Miller, 567 U.S. at 465. A defendant facing the
most serious penalties must have an opportunity to advance mitigating factors and have those
factors assessed by a judge or jury. See id. at 489 (“Graham, Roper, and our individualized
sentencing decisions make clear that a judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for juveniles.”); see also
Woodson v. North Carolina, 428 U.S. 280, 304–05 (1976) (plurality opinion) (holding that a statute
mandating a death sentence for first-degree murder violated the Eighth Amendment).
However, Harmelin does not control because it “had nothing to do with [intellectually disabled persons].” Cf. Miller,
567 U.S. at 481 (declining to extend Harmelin to juveniles because “Harmelin had nothing to do with children”).
3
To be sure, a life sentence without parole may be “an especially harsh punishment for a juvenile[, who] will on
average serve more years and a greater percentage of his life in prison than an adult offender,” but the difference in
severity of the sentence when applied to a juvenile compared to an adult is one of degree. See Graham, 560 U.S. at
70. In other respects, the disproportionality of the punishment can be similar if mitigating factors are not considered.
Diminished culpability for juvenile offenders and intellectually disabled offenders lessens the penological
justifications for a sentence of life imprisonment without parole, which can render the sentence disproportionate. See
id. at 71–74; Atkins, 536 U.S. at 318–20.
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As with juveniles—for whom “Graham and Roper and [the Supreme Court’s]
individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a
sentencer misses too much if he treats every child as an adult,” Miller, 567 U.S. at 477—so too
with the intellectually disabled; for them, the Supreme Court’s decisions in Atkins and its
individualized sentencing cases teach that a sentencer misses too much in imposing a State’s
harshest penalties if he treats every intellectually disabled person as alike with other adults. See
Atkins, 536 U.S. at 316 (explaining that society views intellectually disabled defendants as
“categorically less culpable than the average criminal”). Because Texas Penal Code section
12.31(a)(2) automatically imposes life imprisonment without parole, which is the harshest
sentence an intellectually disabled person faces, the statute is unconstitutional as applied to
intellectually disabled persons based on the combined reasoning of Atkins and the Court’s
individualized sentencing cases, which entitle defendants to present mitigating evidence before a
trial court may impose the harshest possible penalty. See id.; Miller, 567 U.S. at 475–76. 4
CONCLUSION
We hold that section 12.31(a)(2) of the Texas Penal Code is unconstitutional as applied to
intellectually disabled persons, and that the trial court erred by denying Avalos an opportunity to
present mitigating evidence before imposing the sentences of life imprisonment without parole.
We remand these cases for further proceedings consistent with this opinion.
Rebeca C. Martinez, Justice
PUBLISH
4
Because our ruling follows from precedent and does not categorically bar any penalty, there is no need to review
legislative enactments to discern “objective indicia of societal standards.” See Miller, 567 U.S. at 482–83 (explaining
that because the Court’s holding did not categorically bar a penalty for a class of offenders or type of crime and the
decision followed from precedent, the Court was not required to scrutinize legislative enactments before holding a
practice unconstitutional under the Eighth Amendment); cf. Graham, 560 U.S. at 61 (explaining that in cases adopting
categorical rules, “[t]he Court first considers ‘objective indicia of society’s standards, as expressed in legislative
enactments and state practice,’ to determine whether there is a national consensus against the sentencing practice at
issue.”).
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