PD-0118-15 PD-0118-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/29/2015 6:21:14 PM Accepted 2/4/2015 10:01:07 AM ABEL ACOSTA NO. _________________ CLERK
IN THE COURT OF CRIMINAL APPEALS
CASEY DEMON CARMON Petitioner
vs.
STATE OF TEXAS Respondent
No. 01-12-01124-CR in the First Court of Appeals On Appeal from the 174TH District Court of Harris County, Texas Cause No. 1243459
PETITION FOR DISCRETIONARY REVIEW
Patrick F. McCann SBOT: 00792680 909 Texas Ave., Ste. 205 February 4, 2015 Houston, Texas 77002 Ph: (713) 223-3805 Fax: (281) 667-3352 writlawyer@justice.com
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Pursuant to the Texas Rules of Appellate Procedure the following is presented to the Court.
Presiding Judge, Hon. Ruben Guerrero, 174th District, Harris County, Texas
Counsel for Appellant, as on cover Appellant, CASEY DEMON CARMON, in the custody of the Texas Department of Criminal Justice
ATTORNEYS FOR THE STATE OF TEXAS ON TRIAL:
MS. TRACI BENNETT MR. MATTHEW PENEGUY SBOT NO. 75002489 SBOT NO. 24049367
Assistant District Attorneys 1201 Franklin Houston, Texas 77002
ATTORNEYS FOR THE DEFENDANT ON TRIAL:
MR. ALVIN NUNNERY MR. BRENNEN DUNN SBOT NO. 15141800 SBOT NO. 24075487 909 Texas, Suite 205 2306 Blodgett St. Houston, Texas 77002 Houston, Texas 77004
ATTORNEY FOR DEFENDANT ON APPEAL:
MR. PATRICK F. McCANN SBOT NO. 00792680 909 Texas, Suite 205 Houston, Texas 77002 ATTORNEYS FOR THE STATE ON APPEAL:
Alan Curry Heather Hudson Patricia Rae R. Lykos 1201 Franklin St Ste. 600 Houston, Texas 77002
ii TABLE OF CONTENTS Page
IDENTITY OF PARTIES AND COUNSEL ............................................................ii
TABLE OF CONTENTS ……………………………….……………......………..iii
INDEX OF AUTHORITIES ……………………………...…..…....…..…………iv
STATEMENT REGARDING ORAL ARGUMENT..…………..…..…..…....…….2
STATEMENT OF PROCEDURAL HISTORY…………………....................……2
QUESTION PRESENTED FOR REVIEW ……………………….…..…......….....2
REASONS FOR REVIEW …………………..……………………...……..……....3
CONCLUSION…………………………………………………………….…..….11
PRAYER……………………….…………………………….….....………...……12
CERTIFICATE OF SERVICE ................................................................................13
CERTIFICATE OF COMPLIANCE…………………………...………………....13
APPENDIX……………………………………...………………………………..14
iii INDEX OF AUTHORITIES
Cases: Page(s): Floyd v. State, 87 So. 3d 45 (Fla. Dist. Ct. App. 2012)............................................8
Graham v. Florida, 130 S. Ct. 2011 (2010).....................................................7-9, 11
Miller v. Alabama, 132 S.Ct. 2455 (2012)......................................................2, 7-11
People v. Caballero, 282 Pacific 3d 291, 293, 294 (Cal. 2012)...............................9
State ex rel Landry v. State, 106 So. 3d 106 (La. 2013)...........................................9
State v. Brown, 118 So. 3d 332 (La. 2013)...............................................................8
State v. Null, 836 N.W. 2d 41, 45, 72 (Iowa 2013)..........................................10-11
States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006)..................................4
Thomas v. State, 78 So. 3d 644 (Fla. Dist. Ct. App. 2011)......................................8
iv NO. _________________
CASEY DEMON CARMON Petitioner vs.
No. 01-12-01124-CR in the First Court of Appeals On Appeal from the 174TH District Court of Harris County, Texas Cause No. 1243459
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Casey D. Carmon, Petitioner in the above-styled and
numbered cause, by and through his Counsel of Record, PATRICK F.
McCANN, and pursuant to TEX.R.APP.P. 70.1, respectfully submits this
Petition for Discretionary Review, and in support thereof would show this
Honorable Court the following:
1 I. STATEMENT REGARDING ORAL ARGUMENT
Petitioner Casey D. Carmon requests oral argument in this case. This is a
published decision on a matter of first impression in Texas on an important
constitutional question under Miller v. Alabama, 132 S.Ct. 2455 (2012). The
Court would benefit from oral argument.
II. STATEMENT OF PROCEDURAL HISTORY
The Petitioner was charged in Harris County in the 174th District Court,
Hon. Ruben Guerrero presiding, with Capital Murder. Casey D. Carmon
pleaded not guilty and was convicted by the jury, resulting in a mandatory life
sentence, without the possibility of parole.
The Court of Appeals affirmed Petitioner’s conviction in a published
opinion on December 30, 2014. [See attached Appendix]. This Petition for
Discretionary Review follows.
III. QUESTION PRESENTED FOR REVIEW
Does accumulation sentencing order on a juvenile that creates a de facto life
without parole sentence violate Miller v. Alabama?
2 IV. REASONS FOR REVIEW
The trial court, at the urging of the State, "stacked" the matters in this
case so that they could run consecutively. [See Judgment and sentence, the trial
court's handwritten note, and the oral pronouncement, Vol VII, pg 47 of
Reporter's record] Mr. Carmon was already serving a sentence of 99 years for
another aggravated robbery. See Carmon v. State, memorandum opinion, Cause
#14-11-00334-CR, slip op. p1, p3].
The trial court and the State had already agreed to a sentence of life in
prison with parole eligibility at 40 years, in violation of the Texas Penal Code.
By stacking the sentence on top of the preceding one, which under Texas law
would be eligible for parole at 30 years, the State created a sentencing scheme
for a juvenile which would result in, minus the years Mr. Carmon had spent in
custody, a potential parole date when his age would reach approximately 85.
This is longer than the average life expectancy of the American male, let alone
the male in prison, let alone Texas prisons. In a recent report from the
Organization for Economic Cooperation and Development as relayed by the
Huffington Post, the average life expectancy was revealed to be the following:
3 Life expectancy in the United States ranks 26th out of the 36 member countries of the Organization for Economic Cooperation and Development (OECD), according to a new report from the organization. U.S. expectancy in 2011 was 78.7 years, which is slightly below the OECD average of 80.1. For U.S. men, the average life expectancy is 76, while it's 81 for U.S. women. (At five years, this gap in life expectancy between men and women is smaller than the OECD average of six years). The U.S. life expectancy comes in just behind Slovenia, at 80.1 years, and Denmark, at 79.9 years. Comparatively, life expectancy is 81.1 years in the United Kingdom and 82.8 years in Switzerland (the country that came in first in the ranking). The Russian Federation came in last, with a life expectancy of 69.8 years. Huffington Post on 11/21/13
In contrast, it seems clear from the observed statistical data that long
periods of incarceration actually shortened expected life-spans. Whether it is
from the oppressive conditions of prison or the fact that prison populations by
definition have an “unnatural” existence, the summary of those statistical facts
is best noted by referencing actual decisions and statistical websites such as
these taken from a position paper regarding life sentences for juveniles in
Michigan.
Life Expectancy for Incarcerated Individuals
It is generally accepted that life in prison, with its stressors, violence and
disease in and of itself significantly shortens one’s life expectancy. See United
States v. Taveras, 436 F. Supp. 2d 493, 500 (E.D.N.Y. 2006). (Life expectancy 4 within federal prison is considerably shortened) II EOR 72, Feld, Symposium
on Youth and the Law, 22 ND J L Ethic Pub Pol 9, 63, fn. 231 (2008). See also,
Elizabeth Arias, Ctr. for Disease Control, U.S. Life Tables, 2003, Nat'l Vital
Statistics Rep., April 19, 2006, at 3, available at:
http://www.cdc.gov/nchs/data/nvsr/nvsr54/nvsr54_14.pdf.
The actual extent of the diminished life expectancy resulting from
imprisonment was addressed by the United States Sentencing Commission
which defines a life sentence as 470 months (or just over 39 years). This is based
on average life expectancy and median age of individuals at time of sentencing.
Based on the median age at sentencing (25 years) the life expectancy for a
person in general prison population is 64 years of age. U.S. Sentencing
Commission Preliminary Quarterly Data Report (through June 30, 2012) at A-8,
available at:
http://www.ussc.gov/DataandStatistics/Federal_Sentencing_Statistics/Quarterly
_Sentencing_Updates/USSC_2012_3rd_Quarter_Report.pdf .
Section 5081.150 of the Texas Government Code details the requirements
for when parole is calculated on successive sentences (See attached opinion
below). In summary form, when a person is appropriately sentenced to 5 successive sentences by a trial court, the person must finish parole eligibility on
the first case before beginning to earn parole credit on the successive cases.
This becomes highly relevant when one considers the effect of stacking
lengthy sentences on juveniles. It is clear at some point that stacking multiple
life sentences or lengthy sentences creates a “de facto” or effective life without
parole sentence. One need only turn to census data to illustrate this.
It is easy to see that even two lengthy terms of years, if stacked, could
result in an effective life without parole sentence. In the case of Mr. Carmon,
where the State would argue that he is subject to a 40 year sentence under the
new law [which they wish to apply retroactively] because of the stacking order
applied by the trial court Mr. Carmon would have to serve 30 years minimum
on his 99 year Aggravated Robbery sentence and then begin a 40 year eligibility
march at the age of 49 towards possible release. Sadly, even under the
charitable OECD figures rather than the more dismal prison expectation of 64
years, by the time Mr. Carmon would be eligible for release at 89 years of age,
give or take a month, he would already be dead. There is no clearer cut case of
de facto life without parole than this unconstitutional stacking order by the
174th District Court. The only difference is that by one set of figures Mr. 6 Carmon would be dead some time in his 78th year, 11 years before parole
eligibility or some time in his 64th year, 25 years before parole eligibility. To
quote a popular saying, if it looks like a duck, acts like a duck, and quacks like a
duck... it’s a duck. If 89 years looks like, sounds like, and feels like a life
sentence without parole...then it is. It should be ruled unconstitutional under
Miller v. Alabama id.
Other Jurisdictions
There is a clear split among the various states that the Appellant has
reviewed. On the one side, broadly speaking, are California, Iowa, and
Wyoming, which have applied the reasoning of Miller v. Alabama 132 S.Ct.
2455 (2012), Graham v. Florida 130 S. Ct. 2011 (2010) and Roper v Simmons
543 U.S. 551 (2005) and concluded that successive sentences are barred if they
create a de facto life without parole term of imprisonment. On the other hand,
Louisiana has refused to extend the rationale of Miller any further. Florida
appears to be wrestling with this issue as its Courts of Appeals are split with
some refusing to extend the reasoning while the First District Court of Appeals
struck down a virtual de facto life without parole sentence.
7 In the First District in Thomas v. State, 78 So. 3d 644 (Fla. Dist. Ct. App.
2011), the court held that a 50 year sentence given to a 17 year-old was
constitutional but acknowledged that a lengthy term of year sentence may
become the equivalent of a life sentence and thus would be unconstitutional.
Shortly after in Floyd v. State 87 So. 3d 45 (Fla. Dist. Ct. App. 2012), the First
District added up the years that the juvenile was sentenced to and concluded
that there was no realistic possibility of parole. It thus held the sentence
unconstitutional. The Florida Supreme Court is about to rule on this split of
authority.
Following the Florida lead the Supreme Court of Louisiana has also held
to a narrow reading of Graham and Miller. See State v. Brown 118 So. 3d 332
(La. 2013). The Louisiana Supreme Court declined in the absence of any further
guidance to extend the Miller holding to “de facto” life without parole
sentences stating “we see nothing in Graham that even applies for multiple
convictions as Graham conducts no analysis on how to handle such sentences”
See State v. Brown 118 So. 3d at 341. However in an odd tangent of reasoning
that same Louisiana Supreme Court overturned a life without parole sentence
given to a juvenile offender because of a failure to consider individual 8 mitigating factors under Miller based in the sentencing courts’ decision. See
State v. Williams 108 So. 3d 1169 (La. 2013); see also State ex rel Landry v. State
106 So. 3d 106 (La. 2013).
By stark contrast in People v. Caballero 282 Pacific 3d 291, 293, 294 (Cal.
2012), the California Supreme Court directly addressed de facto life without
parole sentencing and said that there was no principled difference under
Graham and Miller between a statutory life without parole and consecutive
terms of 40 years to life and two terms of 35 years to life, resulting in a
minimum of 105 years before being eligible for parole. See People v. Caballero
282 Pacific 3d 291, 293, 294 (Cal. 2012).
The Iowa supreme court also determined that de facto life without parole
sentence violated Miller v. Alabama in State v Ragland 836 N. W. 2d 107 (Iowa
2013). This was a different set of factual circumstances because after the
Supreme Court’s decision in Miller v. Alabama because Iowa’s governor took
the independent action of commuting 38 juvenile homicide offenders
[[including Ragland] to life with no possibility of parole for 60 years. Mr.
Ragland appealed the 60 year sentence challenging both the government’s
authority and the actual action as unconstitutional. The Iowa court first 9 examined whether the commuted 60 year term was a mandatory sentence; the
court said it was because it did not take into account the individual offenders
characteristics but simply changed the ultimate length of a sentence. There was
no consideration of youth or any other factor to take into account the
governor’s decision to commute all 38 youthful offenders.
Although the court found that the governor had authority to commute
sentences it determined that he could not circumvent Miller v. Alabama id
simply by changing the length of the sentence. The court also looked at the
issue of de facto life without parole sentences by calculating that the defendant
would not be eligible for parole until the age of 78. The Ragland court
specifically recognized that under standard morality tables Mr. Ragland was
only expected to live to 78.6 years. See State v Ragland, 836 N.W. 2d at 119.
The court noted that when a sentence is the practical equivalent of life without
parole that it would violate the mandates of Miller, stating it was important that
the spirit of the law not be lost in the application. See Ragland at 121. On the
same day as it released the Ragland decision the Supreme Court of Iowa also
considered State v. Null 836 N.W. 2d 41, 45, 72 (Iowa 2013). The decision in
Null focused on a “meaningful opportunity to obtain release based on the 10 Graham and Miller factors on the lessened moral culpability of juveniles and
the chance for behavioral reform. The court in Null expressed skepticism that
the potential for release at the age of 69 years old somehow answered the Miller
courts concerns regarding opportunity for reform for juveniles. (As a side note
the Iowa Court in Null also noted that the prison life expectancy figures made it
even less likely that Mr. Null would get any kind of opportunity for actual
release).
In the final analysis to deny meaningful opportunity for parole either by
a sentence that says it is life without parole or by artificially creating a set of
sentences that does the same thing, is to defy Miller v. Alabama id.
V. CONCLUSION
The State cannot create a de facto life without parole sentence by
stacking the cases of a juvenile one atop the other in order to get around Miller
v. Alabama,. The trial court likewise cannot issue such an order if it in fact
creates such a result. In this very limited instance, where the crime for which
he was convicted when stacked, creates the same result consecutively that it
does under the old sentencing scheme, it violates Miller v. Alabama. The
11 sentencing order must be struck down, and the sentences "unstacked", as it
were, and ordered to run concurrently, either by this Honorable Court or by
the trial court. The stacking order must be undone, and this judgment either
reformed or sent back with appropriate instructions for a new sentencing
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Petitioner prays that this
Honorable Court grant this Petition for Discretionary Review, set this cause for
oral argument and further briefing, that the judgment of the Court of Appeals
be reversed, and the cause remanded to the Court of Appeals for
reconsideration or to the trial court for a new trial or sentencing. Petitioner
also asks for whatever other relief to which she may be entitled to under law
and in the interests of justice.
Respectfully submitted,
/s/ Patrick F. McCann PATRICK F. McCANN SBOT# 00792680 909 Texas Ave., Ste. 205 Houston, Texas 77002 Ph: (713) 223-3805 Fax: (281) 667-3352
12 CERTIFICATE OF SERVICE
I, the undersigned attorney, hereby certify that a true and correct copy of
the foregoing Petition for Discretionary Review was sent to the following
persons via email using the e-filing service on this 29th day of January 2015:
Alan Curry: curry_alan@dao.hctx.net
Heather A. Hudson: hudson_heather@dao.hctx.net
/s/ Patrick F. McCann Attorney for Appellant
CERTIFICATE OF COMPLIANCE Under the Texas Rules of Appellate Procedure I hereby certify that this
document contains less than the mandated number of pages, 14 point font and
is 2,821 words based upon a word count under MS Word.
13 Opinion issued December 30, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-01124-CR ——————————— CASEY DEMON CARMON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1243459
OPINION
Appellant, Casey Demon Carmon, was charged by indictment with capital
murder.1 Appellant pleaded not guilty. The jury found him guilty. The trial court
assessed punishment at life imprisonment and granted the State’s motion to
1 See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011), § 19.03(a)(7)(A) (Vernon Supp. 2014). cumulate the sentence with an earlier 99-year sentence. In six issues on appeal,
Appellant argues (1) the trial court had no authority to impose the sentence in his
judgment, (2) the trial court’s order to cumulate the sentences violates the Eighth
Amendment to the United States Constitution, (3) the verdict and sentence violate
double jeopardy as multiple punishments for the same offense, (4) the trial court
abused its discretion by denying his motion to suppress his custodial statement, and
(5) the evidence is insufficient to support the judgment.
We affirm.
Background
Appellant and three other people devised a plan to rob a convenience store.
Appellant was 17 years old at the time of the offense. When they arrived at the
convenience store, Appellant was given a gun. He checked to make sure the gun
was loaded and then cocked it. He went into the store with Mihn Truong. Two
clerks were in the store. One was standing next to the cash register. The other was
reading a newspaper at the other end of the counter.
Appellant walked up to the clerk reading the newspaper, pointed the gun to
this head and said, “You know what this is.” The clerk grabbed the gun, and a
struggle over the gun ensued. In an interview with Detective D. Arnold, Appellant
said that he only shot the first clerk during the struggle and that the gun went off
accidentally. In contrast, Truong testified at trial that, during the struggle,
2 appellant shot the clerk twice. Appellant was then able to push the clerk off of
him. Appellant then shot him a third time in the chest.
After this, Truong ran to the door and called for Appellant to follow.
Appellant told Detective Arnold that he saw the other clerk reach for a gun.
Appellant explained that he shot the second complainant two times because he
thought the complainant was going to shoot Truong. He asserted this twice in his
interview. Truong testified that he told Appellant that the clerk was reaching for a
gun. He testified that Appellant shot in the clerk’s direction, but did not aim the
gun at the clerk.
During the course of the investigation, Detective Arnold decided to
interview Appellant. Appellant was incarcerated for a separate offense at the time.
Detective Arnold went to the jail to talk to Appellant. Officer P. Sanders brought
Appellant to the interview room.
It is undisputed that Appellant and Detective Arnold were together in the
room for over two hours. Detective Arnold recorded the audio of the final 15
minutes of their time together. At the start of the recording, Detective Arnold read
Appellant his rights pursuant to article 38.22 of the Texas Code of Criminal
Procedure. Appellant agreed to waive his rights and proceeded to talk to Detective
Arnold about his involvement in the underlying offense.
3 In a motion to suppress hearing, Appellant testified that he did not talk to
Detective Arnold during the initial two hours other than to say that he did not want
to talk to him and that he wanted to be taken back to his cell. He testified that
Detective Arnold told him that he could not go back to his cell and would have to
stay in the room with him.
Detective Arnold denied that Appellant ever attempted to stop the interview.
He testified that he told Appellant that it was Appellant’s choice to talk to him.
Once, he stepped out of the room for a few minutes to give Appellant time to think
about what he wanted to do.
Everyone agreed that, once during the two hours, Appellant asked to go to
the restroom. Detective Arnold released Appellant to Officer Sanders to take
Appellant to the restroom. Officer Sanders testified that, during their walk,
Appellant told him that he wanted to go back to his cell. Officer Sanders told him
that decision was up to Detective Arnold. After Appellant came out of the
restroom, Officer Sanders took Appellant back to the interview room.
Officer Sanders also testified that he stood outside the interview room during
the entire time Appellant was in the room. The door was closed and the hallway
was noisy. As a result, Officer Sanders could hear very little of what was said
while Appellant and Detective Arnold were together. He testified that he did hear
one brief exchange, however. He heard Appellant tell Detective Arnold that he
4 wanted to go back to his cell. He then heard Detective Arnold respond that
Appellant could not go to the cell until he was done talking to him.
Prior to the trial on the underlying offense, Appellant had been found guilty
of aggravated robbery and was sentenced to 99 years’ confinement. After the jury
found him guilty of the underlying offense, the trial court assessed punishment at
life. The State presented a motion to have Appellant serve the two sentences
consecutively as opposed to concurrently. The trial court granted the motion.
Improper Sentence
In his first issue, Appellant argues that the trial court had no authority to
impose the sentence in his judgment. Appellant was 17 years old at the time he
committed the underlying offense. Appellant was charged with committing capital
murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011),
§ 19.03(a)(7)(A) (Vernon Supp. 2014). Capital murder is a capital felony. Id.
§ 19.03(b).
At the time of trial, section 12.31 of the Texas Penal Code provided that,
when the State does not seek the death penalty, the sole punishment for a capital
felony was life without parole, except in circumstances not applicable here. See
Act of May 20, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930,
1930 (amended 2013) (current version at TEX. PENAL CODE ANN. § 12.31(a)
(Vernon Supp. 2014)). Before the trial, the United State Supreme Court issued
5 Miller v. Alabama, --- U.S. ---, 132 S. Ct. 2455 (2012). In Miller, the court held
that statutes imposing mandatory life sentences for juveniles under the age of 18
violated the Eighth Amendment to the United States Constitution. Id. at ---, 132 S.
Ct. at 2469.
Based on Miller, the trial court announced at the start of the trial that, if the
jury found Appellant guilty, the court would sentence Appellant to life
imprisonment as opposed to life without parole. The jury found Appellant guilty,
and the trial court assessed punishment at life imprisonment. After Appellant filed
his notice of appeal but before he filed his brief, the Texas Legislature amended
section 12.31 to conform with Miller. See Act of July 11, 2013, 83rd Leg., 2d
C.S., ch. 2, § 1, 2013 Tex. Sess. Law Serv. 4802, 4802 (West). The statute now
provides, in pertinent part, that, when the State does not seek the death penalty, the
punishment for a capital felony is “life, if the individual committed the offense
when younger than 18 years of age.” TEX. PENAL CODE ANN. § 12.31(a)(1).
Appellant’s argument in his first issue is that the trial court lacked the
authority to sentence him to life imprisonment at the time of sentencing because
the revision to section 12.31 had not been enacted at that time. Accordingly,
Appellant argues that we must remand for a new sentencing hearing, even though
his sentence will be the exact same as what it is now. We disagree that remand is
required.
6 When the legislature revised section 12.31 to conform with Miller, it
specifically provided, “The change in law made by this Act[] applies to a criminal
action pending, on appeal, or commenced on or after the effective date of this Act,
regardless of whether the criminal action is based on an offense committed before,
on, or after that date . . . .” Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3(1),
2013 Tex. Sess. Law Serv. 4802, 4803 (emphasis added). Accordingly, even if we
agreed that Appellant had suffered some harm by receiving a punishment below
what was statutorily authorized at the time of the sentencing, any error and harm
has since been corrected by the legislature.2
We overrule Appellant’s first issue.
Consecutive Sentencing
In his second issue, Appellant argues that the trial court’s granting the
State’s motion to have Appellant serve the sentence consecutively with a 99-year
sentence for another crime amounts to a de facto punishment of life without parole.
Appellant argues that this de facto life without parole violates Miller.
2 Appellant also suggests that there is a discrepancy between what the trial court considered to be Appellant’s eligible time for parole for the life sentence and what the current framework establishes as his eligible time for parole. Even if a discrepancy exists, the change in the law “applies to a criminal action . . . on appeal.” Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3(1), 2013 Tex. Sess. Law Serv. 4802, 4803. Accordingly, the current framework for determining eligibility for parole controls over anything the trial court considered to be the law at the time. See id. 7 Before the underlying trial, Appellant was tried for aggravated robbery. The
jury in that case found him guilty and assessed punishment at 99 years’
confinement. The State filed a motion with the trial court in this case requesting
that Appellant serve the 99-year sentence and the sentence in this case
consecutively rather than concurrently. See TEX. CODE CRIM. PROC. ANN. art.
42.08(a) (Vernon Supp. 2014) (assigning trial court discretionary authority to have
multiple sentences be served cumulatively or concurrently). At a hearing on the
motion, conducted the day after Appellant’s conviction in this case, Appellant
argued that cumulating the two sentences would violate Miller. The trial court
granted the motion.
Prior to Miller, the United States Supreme Court considered the
constitutionality of assessing the death penalty against minors and of assessing life
without parole for non-homicide offenses. See Roper v. Simmons, 543 U.S. 551,
125 S. Ct. 1183 (2005) (death penalty); Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011 (2010) (life without parole for non-homicide offenses). The supreme court
determined the constitution required categorical bans on both practices. See Roper,
543 U.S. at 578, 125 S. Ct. at 1200; Graham, 560 U.S. at 82, 130 S. Ct. at 2034.
In Miller, in contrast, the supreme court did not announce a categorical ban
on assessing life without parole on minors. --- U.S. at ---, 132 S. Ct. at 2469.
Instead, the court held that sentencing schemes could not “mandate[] life in prison
8 without possibility of parole for juvenile offenders.” Id. (emphasis added). While
life without parole can be assessed against a minor, the sentencer is required “to
take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Id.
Based on this, Appellant’s argument that “de facto sentences of life without
parole” violate Miller cannot stand. The cumulation of the two offenses was not
imposed under a mandatory sentencing scheme. Instead, the two offenses were
cumulated through the trial court’s normative, discretionary ruling. See Barrow v.
State, 207 S.W.3d 377, 381 (Tex. Crim. App. 2006) (holding that sentencing is
normative process and that same is true for discretionary decision to cumulate
sentences).
Furthermore, even assuming Miller extends to rulings on motions to
cumulate sentences where a “de facto” life without parole sentence could be
imposed, we still find no violation. The record reflects that the trial court was well
aware of Miller and its holdings. Accordingly, we have no basis for determining
that the trial court failed to consider the factors required to be considered under
Miller. See Miller, --- U.S. at ---, 132 S. Ct. at 2469 (requiring sentencer to take
into account how children are different and how those differences counsel against
sentence of life without parole). The trial court presided over both trials that
resulted in the sentences in question. The trial court expressly noted its ruling was
9 based on its knowledge of the facts presented at both trials. While no evidence
was specifically introduced at the hearing, the record reflects that the trial court did
not prevent the parties from introducing any.3 Instead, the trial court specifically
told the parties that it would “hear whatever you’ve got.” At the end of the
hearing, the trial court confirmed, “Both sides have had their say, right?” Based on
its knowledge of Appellant, of the circumstances surrounding the crimes he
committed, and of Appellant’s behavior in those circumstances, the trial court
decided to cumulate Appellant’s sentences. This ruling conforms with the
requirements of Miller.
In supplemental briefing to this Court, Appellant has cited authority from
other jurisdictions involving cumulative sentences for separate offenses, post-
Graham. See, e.g., Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert. denied 133
S. Ct. 1996 (2013); People v. Caballero, 282 P.3d 291 (Ca. 2012); State v. Null,
836 N.W.2d 41 (Ia. 2013); State v. Brown, 118 So.3d 332 (La. 2013). In those
cases, the courts applied a Graham analysis when the trial court had imposed
aggregate sentences, but with different results that turned on the facts of the case
and the crimes committed. In Caballero, the California Supreme Court remanded
3 Because the record reflects that the trial court did not prevent the presentation of further evidence and because Appellant has not raised an issue on appeal identifying any exclusion of probative evidence necessary for the trial court’s determination, we do not need to decide whether an evidentiary hearing is required or what evidence, if any, might be necessary for resolution of a motion to cumulate sentences. 10 for a new sentencing hearing, when multiple convictions for attempted murder
arose from one criminal episode and reached an aggregate minimum sentence of
110 years. 282 P.3d at 265, 296. None of the convictions was for a homicide
offense. Id. at 295. Similarly, in Null, the Supreme Court of Iowa remanded for a
new sentencing hearing for an aggregate sentence with a minimum prison term of
52.5 years; the court concluded that Graham applied to consecutive sentences for
second-degree murder and first-degree robbery that arose from the same criminal
episode. See Null, 836 N.W.2d at 45, 70, 76.
In contrast, the Louisiana Supreme Court upheld aggregated sentences for an
aggravated kidnapping and four counts of robbery, concluding that aggregating the
sentences, even if they arose from the same criminal episode, did not offend
Graham’s prohibition on a sentence of life without parole in non-homicide cases.
See Brown, 118 So.3d at 332–33, 342. In Brown, the court recognized that
Graham precluded a sentence of life without parole for any given non-homicide
offense (in that case, aggravated kidnapping), but held that nothing in Graham
required reformation of the convicting court’s determination that the kidnapping
and robbery sentences run consecutively. Id. In so doing, the court relied on the
Sixth Circuit’s decision in Bunch, which upheld a cumulative sentence of 89 years
for non-homicide offenses. See id. at 337 (citing Bunch, 685 F.3d at 551).
11 We conclude that the trial court’s decision in this case does not violate the
cruel and unusual punishment parameters for juveniles that the Supreme Court set
forth in Graham. Unlike the sentences in Caballero and Null—in which the
consecutive sentences arose from the same criminal episode—here appellant
committed capital murder, killing two people, eight months after an unrelated
aggravated robbery. Nothing in Graham precludes the later sentences—for a
different criminal episode and for a homicide offense of the most serious kind—
from running consecutively. In addition, the trial court considered the effect of the
Supreme Court’s decision in Miller in declining to impose the then-required
sentence for juveniles of life without parole.
Graham prohibits life sentences for juveniles who committed only non-
homicide offenses. 560 U.S. at 82, 130 S. Ct. at 2034. Because one of the
cumulated sentences in this case is for the offense of homicide, Graham is not a
bar to cumulating the sentences. See id.; Arredondo v. State, 406 S.W.3d 300, 306
(Tex. App.—San Antonio 2013, pet. ref’d) (upholding cumulation of two life
sentences when one sentence was for homicide).
We overrule Appellant’s second issue.
Double Jeopardy
In his third issue, Appellant argues the verdict and sentence violate double
jeopardy as multiple punishments for the same offense. Appellant points out that,
12 in the punishment phase of his aggravated robbery, the State introduced evidence
of his committing the underlying offense of capital murder. The jury assessed 99
years’ confinement in that case. Appellant argues that, because it introduced
evidence of the underlying offense in the punishment phase for the aggravated
robbery case, the State was barred by the prohibition on double jeopardy from
seeking a judgment in the underlying case.
As the State points out, the Texas Court of Criminal Appeals has rejected
this argument long ago. “The Double Jeopardy Clause of the United States
Constitution embodies three protections: (1) it protects against a second
prosecution for the same offense after acquittal; (2) it protects against a second
prosecution for the same offense after conviction; and (3) it protects against
multiple punishments for the same offense.” Ex parte Broxton, 888 S.W.2d 23, 25
(Tex. Crim. App. 1994). “Extraneous offenses are frequently given consideration
in sentencing decisions and the double jeopardy clause is not offended.” Id. at 26.
This principle has been universally recognized. Id. at 28.
We overrule Appellant’s third issue.
Motion to Suppress
In his fourth and fifth issues, Appellant argues that the trial court abused its
discretion by denying his motion to suppress his custodial statement.
13 A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
2013). We review the trial court’s factual findings for abuse of discretion and
review the trial court’s application of the law to the facts de novo. Id. Almost total
deference should be given to a trial court’s determination of historical facts,
especially those based on an evaluation of witness credibility or demeanor. See
Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression
hearing, the trial court is the sole and exclusive trier of fact and judge of the
witnesses’ credibility and may choose to believe or disbelieve all or any part of the
witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When, as here, the trial court makes findings of fact with its ruling on a
motion to suppress a statement, we do not engage in our own factual review but
determine only whether the record supports the trial court’s factual findings.
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial
court abuses its discretion in making a finding not supported by the record, we will
defer to the trial court’s fact findings and not disturb the findings on appeal. See
id.
14 B. Analysis
Appellant was already incarcerated before he was charged with the
underlying offense. When he obtained information linking Appellant to the
underlying offense, Detective Arnold went to the jail to talk to Appellant. Officer
Sanders brought Appellant to the interview room.
It is undisputed that Appellant and Detective Arnold were together in the
room for over two hours. Detective Arnold recorded the audio of the final 15
minutes of their time together. At the start of the recording, Detective Arnold read
Appellant his rights pursuant to article 38.22 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon Supp. 2014).
Appellant agreed to waive his rights and proceeded to talk to Detective Arnold
about his involvement in the underlying offense. What took place before the
recording was a matter of dispute in the motion to suppress hearing.
Appellant testified that he did not talk to Detective Arnold during the initial
two hours other than to say that he did not want to talk to him and that he wanted
to be taken back to his cell. He testified that Detective Arnold told him that he
could not go back to his cell and would have to stay in the room with him.
Detective Arnold denied that Appellant attempted to stop the interview. He
testified that he told Appellant that it was Appellant’s choice to talk to him. Once,
15 he stepped out of the room for a few minutes to give Appellant time to think about
what he wanted to do.
Everyone agreed that, once during the two hours, Appellant asked to go to
the restroom. Detective Arnold released Appellant to Officer Sanders to take
Appellant to the restroom. Officer Sanders testified that, during their walk,
Appellant told him that he wanted to go back to his cell. Officer Sanders told him
that decision was up to Detective Arnold. After Appellant came out of the
restroom, Officer Sanders took Appellant back to the interview room.
Officer Sanders also testified that he stood outside the interview room during
the entire time Appellant was in the room. The door was closed and the hallway
was noisy. As a result, Officer Sanders could hear very little of what was said
while Appellant and Detective Arnold were together. He testified that he did hear
one brief exchange, however. He heard Appellant tell Detective Arnold that he
wanted to go back to his cell. He heard Detective Arnold respond that Appellant
could not go to the cell until he was done talking to him.
In its findings of fact, the trial court found that Detective Arnold was
credible and accepted his testimony as true. The trial court further found that
Appellant was not credible and did not believe his testimony. Additionally, the
trial court found that it was difficult to hear in the hallway where Officer Sanders
16 was standing and that Officer Sanders “could not have accurately heard the content
of the conversation that took place between [Appellant] and Officer Arnold.”
The thrust of Appellant’s argument on appeal is that Officer Sanders was an
honorably-discharged navy veteran “who had no reason to lie, and every reason to
look the other way.” Regardless, the credibility of each of the witnesses and the
weight to give their testimony rests exclusively in the province of the trier of fact.
See Gonzales, 369 S.W.3d at 854 (holding almost total deference should be given
to trial court’s determination of historical facts, especially those based on
evaluation of witness credibility or demeanor); Ross, 32 S.W.3d at 855 (holding
trial court is the sole and exclusive trier of fact at suppression hearing and may
choose to believe or disbelieve all or any part of witnesses’ testimony).
Appellant also argues that his confession was coerced. A confession can be
determined to be involuntary and, accordingly, in violation of federal due process
rights, “only if there was official, coercive conduct of such a nature that any
statement obtained thereby was unlikely to have been the product of an essentially
free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199,
211 (Tex. Crim. App. 1995). Appellant testified at the suppression hearing that
Detective Arnold told him that, if he did not co-operate, Appellant would get the
17 death penalty.4 In its findings of fact, however, the trial court specifically found,
“Officer Arnold did not threaten [Appellant] . . . . Officer Arnold did not tell
[Appellant] that he would receive the death penalty if convicted of capital murder.”
Appellant has failed to establish that the trial court could not have disbelieved
Appellant’s claim of being threatened with the death penalty if he failed to co-
operate. See Gonzales, 369 S.W.3d at 854; Ross, 32 S.W.3d at 855.
We hold that Appellant has failed to establish that the trial court abused its
discretion by denying the motion to suppress. We overrule Appellant’s fourth and
fifth issues.
Sufficiency of the Evidence
In his sixth issue, Appellant argues that the evidence is insufficient to
support the judgment.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
4 By that time, the United States Supreme Court had held the constitution prohibited assessing the death penalty against defendant who committed crimes as a minor. See Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 1200 (2005). 18 319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). An appellate court presumes that the fact finder resolved any conflicts in
the evidence in favor of the verdict and defers to that resolution, provided that the
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing
19 the record, direct and circumstantial evidence are treated equally; circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235
S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence
can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.
See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
B. Analysis
In this issue, Appellant argues that the evidence establishes that he did not
intend to kill the two complainants. Appellant was charged with capital murder.
As it applies to Appellant, a person commits capital murder when he murders more
than one person during the same criminal transaction. TEX. PENAL CODE ANN.
§ 19.03(a)(7)(A). Murder, for the purposes of capital murder, constitutes
intentionally or knowingly causing the death of an individual. Id. §§ 19.02(b)(1),
19.03(a). Appellant argues that the evidence disproves that he intentionally or
knowingly caused the complainants’ deaths.
For the first man he shot, Appellant told Detective Arnold that the gun went
off accidentally after the two began struggling for control of the gun. Truong
testified, however, that Appellant shot the first man three times. The autopsy
confirmed this. Truong testified that the first two shots occurred while Appellant
and the first complainant were struggling with the gun. The third shot, however,
20 occurred after Appellant pushed the complainant away. Appellant then pointed the
gun at him and shot him in the chest.
For the second man shot, Appellant relies on Truong’s testimony to establish
he lacked the requisite intent. Truong testified that, after Appellant shot the first
complainant, he ran to the door and called Appellant to leave as well. Truong
watched from the door and saw the other clerk reaching for something under the
counter. Truong yelled that the clerk had a gun. Appellant responded by shooting
in the direction of the second clerk. Truong testified that Appellant did not point
the gun directly at the clerk, but just aimed in clerk’s direction and fired.
In contrast to this testimony, Appellant told Detective Arnold that he saw the
second clerk reach for a gun. Appellant explained that he shot the second
complainant two times because that complainant was going to shoot Truong. He
asserted this twice in his interview.
All of these conflicts in the testimony were presented to the jury to resolve.
See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793 (holding appellate courts defer to
jury’s resolution of conflicts in evidence as long as resolution is rational). The jury
could have rationally resolved the conflicts in the evidence to determine that
Appellant intentionally or knowingly caused the death of both individuals.
Accordingly, we hold the evidence is sufficient to support this element and the
judgment of conviction.
21 We overrule Appellant’s sixth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Higley, Bland, and Sharp.
Justice Sharp, concurring without opinion.
Publish. TEX. R. APP. P. 47.2(b).