Henry, Terrance

Court of Appeals of Texas

Henry, Terrance

DecidedAugust 7, 2015

DocketPD-1006-15

StatusPublished

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Henry, Terrance, (Tex. Ct. App. 2015).

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Opinion

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 . . .

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