Opinion issued December 19, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-16-00566-CR ——————————— KIMBERLY NICOLE CORMIER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1441115
O P I N I O N
In December 2014, Kimberly Nicole Cormier was charged with capital
murder arising out of her participation in an aggravated robbery that resulted in the
Jose Bonilla’s death. A jury found her guilty of the offense as charged. See TEX.
PENAL CODE §§ 19.02, 19.03. The State did not seek the death penalty, and thus the trial court automatically assessed punishment at life imprisonment without the
possibility of parole. See TEX. PENAL CODE § 12.31(a)(2).
On appeal, Cormier contends that (1) the trial court erred in refusing to instruct
the jury on the definition of “imminent” as it applies to the affirmative defense of
duress; and (2) Section 12.31(a)(2) of the Texas Penal Code, which requires a
punishment of life without parole for a defendant 18 years of age or older found
guilty of a capital offense, is constitutionally infirm on its face and as applied to
Cormier because it violates her right to be free from cruel or unusual punishment
guaranteed by Article I, Section 13, of the Texas Constitution as well as her right to
be free from cruel and unusual punishment guaranteed by the Eighth Amendment of
the federal Constitution. We affirm.
BACKGROUND
Cormier met James Nicholas in February 2014. The two began a romantic
relationship. Cormier described Nicholas as kind and attentive at first, but as time
went on, he became controlling and abusive.
Both Cormier and Nicholas had criminal histories. Nicholas was on parole,
having recently been released from prison after being incarcerated for felony
delivery of cocaine and unlawful possession of a firearm. Cormier had served six
months for forging a prescription in 2006 and later served four years for obtaining
2 drugs by fraud in 2010. She was using prescription pain medication when she met
Nicholas.
In September 2014, Nicholas began a week-long crime spree that included the
murders of Johnny Holcombe, Catherine Gingrich, Marty Carol, and Jose Bonilla,
and the aggravated robbery of a cell-phone store. Cormier accompanied Nicholas
during these events.
Nicholas began to worry that law-enforcement officials would identify his car
in connection with the murders and the store robbery. He and Cormier visited
several used-car lots to attempt to steal a car, but the opportunity to take one did not
arise. Following these unsuccessful efforts, their conversation turned to Bonilla.
Bonilla was an acquaintance of Cormier. Bonilla managed a business that bought,
sold, and repaired cars. He ran the business out of his home and had outfitted the
home with surveillance cameras for security purposes. The cameras recorded video,
but not audio.
Cormier and Nicholas visited Bonilla the evening of September 7th. They
inspected the cars that Bonilla had available and expressed an interest in buying one
of them. They made arrangements to return in the morning.
The surveillance video recording from that morning shows Cormier greeting
Bonilla. She is fluent in Spanish and appeared to take the lead in negotiations.
3 Nicholas took one of Bonilla’s cars on a test drive around the neighborhood while
Bonilla and Cormier conversed outside of Bonilla’s home.
A few minutes later, Nicholas returned from the test drive and the three went
inside Bonilla’s home. While Cormier and Bonilla were discussing paperwork in
Bonilla’s kitchen, Nicholas pulled a gun from the back of his waistband and put it to
Bonilla’s head. Nicholas handed Cormier some plastic zip-ties and, still holding the
gun to Bonilla’s head, directed Bonilla into the living room. Nicholas had Bonilla
sit on the sofa while Cormier spoke to him. The surveillance video shows Cormier
speaking to Bonilla in an aggressive manner. After a few minutes, Nicholas lunged
toward the sofa, picked up a throw pillow, held it to the side of Bonilla’s head, and
placed the gun on the other side of the pillow. Bonilla removed an object from his
pocket and gave it to Nicholas. Nicholas and Cormier then forced Bonilla into his
bedroom, which was not within view of the surveillance cameras.
The surveillance video shows Cormier and Nicholas leaving the bedroom a
few minutes later. Nicholas returned the throw pillow to the sofa. Cormier looked
out of the front-door peephole while she covered her hand with the bottom edge of
her tee shirt and wiped off the doorknob. They left the house and drove away in
Bonilla’s car.
That afternoon, Bonilla’s roommate returned home from work to find Bonilla
dead in his bedroom. He had a single gunshot wound on the right side of his head.
4 His ankles and feet were tied together with zip ties. A spent shell casing was on the
floor near his feet.
Three days after Bonilla’s murder, the police found Nicholas and Cormier
leaving Cormier’s neighborhood in Bonilla’s car. Nicholas, who was driving, tried
to flee from the police and shot at the police vehicle. Before he could be arrested,
he shot Cormier on her left side and shot himself in the head. An officer ordered
Cormier out of the car and onto the ground. Nicholas died at the scene. Cormier
survived her injuries.
At trial, Cormier acknowledged that she was present at the murders of
Holcombe, Gingrich, Carol, and Bonilla, and that she had driven the get-away car
from the cell-phone store where Nicholas had committed aggravated robbery. She
claimed, however, that she acted in fear for her life. She testified that Nicholas had
pointed his gun at her and told her that he would kill her if she told the police about
his crimes.
Defense witness Toby Myers, an expert in domestic violence, opined that
Cormier was terrified of Nicholas to the point of believing that she would not survive
if she escaped him. He further opined that Cormier would not have been with
Nicholas if she felt she had a choice. Cormier conceded, though, that she never
attempted to flee from Nicholas or warn Bonilla. She acknowledged that the police
5 confiscated an air pistol, a knife, and Gingrich’s identification from her purse. She
also conceded that she had lied to the police about her involvement in the crimes.
After the close of evidence, the trial court prepared a jury charge that included
Cormier’s affirmative defense of duress, defined as follows:
It is an affirmative defense to prosecution for any offense that the person charged engaged in the proscribed conduct because she was compelled to do so by the threat of imminent death or serious bodily injury to herself or another. Such compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.
The defense of duress is unavailable if the defendant intentionally, knowingly, or recklessly placed herself in a situation in which it was probable that she would be subjected to compulsion.
Cormier asked the trial court to add the following definition:
The word “imminent,” for purposes of determining duress, has been defined by courts to mean “near at hand; mediate rather than immediate; close rather than touching; on the point of happening; threatening; menacing; or perilous.”
The trial court refused the requested instruction.
DISCUSSION
Cormier challenges the trial court’s charge to the jury, contending that the
charge should have contained a definition for the word “imminent” in connection
with her defense that she was under duress when she participated in Bonilla’s
murder. She further challenges the imposition of life imprisonment without the
possibility of parole as constitutionally infirm because it is automatic and does not 6 allow a jury to consider circumstances that might mitigate the term of confinement,
and in particular, eliminates the possibility of parole.
I. The trial court was not required to submit a definition of “imminent.”
Cormier contends that the trial court erred in refusing to include her tendered
definition of “imminent” because it contains language that draws a distinction
between “imminent” and “immediate.”
A. Standard of review and applicable law
The trial court must deliver to the jury a written charge distinctly setting forth
the law applicable to the case. TEX. CODE CRIM. PROC. art. 36.14. The “law
applicable to the case” includes the statutory definitions that affect the meaning of
the elements of the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim.
App. 2011); Lovings v. State, 376 S.W.3d 328, 337 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). If the applicable statute defines a phrase, term, or word that
the jury must use to properly resolve an issue, the trial court has no discretion; it
must submit that definition to the jury. See Arline v. State, 721 S.W.2d 348, 352 n.4
(Tex. Crim. App. 1986); see also State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App.
2004) (“A trial court has no discretion in determining what the law is or applying
the law to the facts.”).
A defendant who properly requests that a defensive theory raised by the
evidence be submitted to jury is entitled to an instruction on that theory. Booth v.
7 State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984); see also Shaw v. State, 243
S.W.3d 647, 658 (Tex. Crim. App. 2007).
In submitting a defensive theory, trial courts have broad discretion in
submitting proper definitions and explanatory phrases to aid the jury. Nava v. State,
379 S.W.3d 396, 420 (Tex. App.—Houston [14th Dist.] 2012), aff’d, 415 S.W.3d
289 (Tex. Crim. App. 2013). When submitting defensive theories, however, the trial
court must do so correctly. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App.
2013) (holding that when a trial court “charge[s] on a defensive issue (regardless of
whether [it] does so sua sponte or upon a party’s request), but fails to do so correctly,
this is charge error subject to review”). If, as here, the accused makes a timely and
pertinent objection at trial, reversal is required if the accused suffered “some harm”
from the error. Vega, 394 S.W.3d at 519.
Duress is an affirmative defense that applies if the defendant “engaged in the
proscribed conduct because he was compelled to do so by threat of imminent death
or serious bodily injury to himself or another.” TEX. PENAL CODE § 8.05(a).
Compulsion means a force or threat of force that “would render a person of
reasonable firmness incapable of resisting the pressure.” Id. § 8.05(c).
In this case, the statute does not define “imminent.” Because it does not,
ordinarily the jury charge does not require a specific instruction. Smith v. State, 297
S.W.3d 260, 275 (Tex. Crim. App. 2009). Rather, jurors are presumed to apply a
8 common understanding to the meaning of these terms. See id. But terms with a
technical legal meaning may require definition even when the term is not defined in
a statute “when there is a risk that jurors may arbitrarily apply their own personal
definitions of the term or when a definition of a term is required to assure a fair
understanding of the evidence.” Nava, 379 S.W.3d at 420 (citing Middleton v. State,
125 S.W.3d 450, 454 (Tex. Crim. App. 2003)). Cormier contends that the trial court
erred in refusing to define “imminent” for the jury because it has a known and
established legal meaning in the context of a duress defense. We thus turn to the
question whether “imminent” required a legal definition.
B. Analysis
Even outside the context of a duress defense, the Penal Code does not define
“imminent.” See TEX. PENAL CODE § 1.07. Courts have employed various
definitions for the term in deciding whether the evidence is sufficient to support a
conviction in the face of a defense of duress. An imminent threat is a present threat
of harm. Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.]
1999, pet. ref’d). It has two components: (1) the person making the threat must
intend and be prepared to carry out the threat immediately, and (2) the threat must
be predicated on the threatened person’s failure to commit the charged offense
immediately. See Devine v. State, 786 S.W.2d 268, 270–71 (Tex. Crim. App. 1989);
9 Anguish, 991 S.W.2d at 886. Threats of future harm are not sufficient to prove
duress. Devine, 786 S.W.2d at 270–71.
Cormier points to the Court of Criminal Appeals’s decision in Devine, which
reviewed the sufficiency of the evidence supporting a jury verdict finding the
appellant guilty of robbery. In that case, the Court provided a definition of
“imminent,” citing Black’s Law Dictionary. See id. at 270 (citing Imminent,
BLACK’S LAW DICTIONARY (5th ed. 1979)); see also Garcia v. State, 367 S.W.3d
683, 688–89 (Tex. Crim. App. 2012). Cormier’s tendered instruction is the
definition that the Court used in Devine, meaning “near at hand; mediate rather than
immediate; close rather than touching; on the point of happening; threatening;
menacing; perilous.” See 786 S.W.2d at 270.
Though the Court in Devine supplied a definition in the context of evaluating
the sufficiency of the evidence, it did not supplant the Legislature’s authority to
define “imminent” for the purpose of instructing a jury on duress or require that
juries be given a specific definition. An appellate court’s application of a definition
to a statutorily undefined term in reviewing the sufficiency of the evidence does not
in turn dictate that a trial court must define that term for the jury when the statute
does not. Nava, 379 S.W.3d at 420 (citing Kirsch v. State, 357 S.W.3d 645, 651
(Tex. Crim. App. 2012)). Neither Devine nor Garcia suggests that “imminent”
should have been defined in the jury charge, and Cormier points us to no case
10 holding that a trial court erred in refusing to submit a definition. Neither case
concerns the affirmative defense of duress. See Garcia, 367 S.W.3d at 688–89
(appeal of conviction for endangering child); Devine, 786 S.W.2d at 269 (appeal of
robbery conviction).
The Legislature uses “imminent” in varied contexts throughout the Penal
Code.1 The widespread use of the term, without definition, undermines Cormier’s
1 See, e.g., TEX. PENAL CODE § 9.22(1) (in justification defense of necessity, “[c]onduct is justified if: the actor reasonably believes the conduct is immediately necessary to avoid imminent harm”); id. § 22.01(a)(2) (person commits assault if person “intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse”); id. § 22.041(c) (person commits offense of abandoning or endangering child “if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment”); id. § 22.07(a)(2) (person commits terroristic threat by threatening to commit violent offense with intent to place person in fear of imminent serious bodily injury); id. § 29.02(a)(2) (person commits robbery if in course of committing theft he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death”); id. § 29.03(a)(3) (robbery becomes aggravated robbery if robber causes bodily injury to another or threatens or places elderly or disabled person in fear of imminent bodily injury or death); id. § 38.15(e) (defining, for purposes of statute prohibiting interference with public duties, “emergency” as “a condition or circumstance in which an individual is or is reasonably believed by the person transmitting the communication to be in imminent danger of serious bodily injury or in which property is or is reasonably believed by the person transmitting the communication to be in imminent danger of damage or destruction”); id. § 42.06(a)(2) (person commits offense of false alarm or report if, among other things, “he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily: . . . place a person in fear of imminent serious bodily injury”); id. § 71.022(a-1)(1) (person commits offense if, with intent to coerce, induce, or solicit a child to actively participate in the activities 11 position that a specific, technical definition of “imminent” applies to the duress
defense. See Bryant v. State, 905 S.W.2d 457, 459 (Tex. App.—Waco 1995, pet.
ref’d) (applying definition of “imminent” used in Devine to review sufficiency of
evidence in appeal of conviction for terroristic threat while observing that
Legislature did not manifest any intent for “imminent” to have one meaning in
Section 29.02 (robbery) and different meaning in Section 22.07 (terroristic threats)).
Both the lack of a definition for “imminent” in the Penal Code and the Code’s
frequent use of “imminent” as an undefined modifier support the conclusion that
“imminent” has a common meaning. Because of the word’s common use, we hold
that the trial court acted within its broad discretion in refusing to submit the tendered
definition. See Nava, 379 S.W.3d at 420.
II. Cormier’s punishment does not violate constitutional guarantees against cruel and unusual punishment. Cormier challenges the constitutionality of life imprisonment without parole
for persons convicted as a party to capital murder. She claims that Section
12.31(a)(2) of the Penal Code, on its face, violates her right to be free from cruel or
unusual punishment guaranteed by Article I, Section 13, of the Texas Constitution
as well as her right to be free from cruel and unusual punishment guaranteed by the
of a criminal street gang, the person “threatens the child or a member of the child’s family with imminent bodily injury”). None of these provisions defines “imminent.” 12 Eighth Amendment of the United States Constitution. She contends that, by
mandating life in prison without the possibility of parole for capital murder, the
statute prohibits individualized consideration of mitigating evidence necessary for
determining a just punishment. She observes that the application of Section
12.31(a)(2) to her case violates those constitutional rights because the statute does
not allow for consideration as mitigating factors that she was convicted under the
law of parties and that she acted under duress.
Before considering her challenges on the merits, we first address Cormier’s
suggestion that the Texas Constitution, which prohibits “cruel or unusual
punishment” provides greater protection than the United States Constitution’s
prohibition against “cruel and unusual punishment.” Compare TEX. CONST. art. I,
§ 13, with U.S. CONST. amend. VIII. The Court of Criminal Appeals has rejected
such a distinction. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997)
(finding no significance in differences between Eighth Amendment’s “cruel and
unusual” phrasing and Texas Constitution’s “cruel or unusual” phrasing); Duran v.
State, 363 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(following Cantu). Thus, we review Cormier’s state and federal constitutional
claims together.
13 A. Cormier does not overcome the presumption that Section 12.31(a)(2) is constitutional on its face. We review the facial constitutionality of a criminal statute de novo. Salinas
v. State, 464 S.W.3d 363, 366 (Tex. Crim. App. 2015) (relying on Ex parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013)). We presume the statute is valid and that
the Legislature did not act arbitrarily or unreasonably in enacting it. Rodriguez v.
State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The challenging party bears the
burden to show that no set of circumstances exists under which the statute would be
constitutionally valid. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App.
2013). We analyze a facial challenge without regard to the specific facts of the case.
Ex parte Lo, 424 S.W.3d at 14 n.2.
In arguing that the statute violates the Eighth Amendment, Cormier asks us to
extend the holding of Miller v. Alabama, 567 U.S. 460 (2012). There, the United
States Supreme Court determined that the Eighth Amendment prohibits the
imposition of mandatory life imprisonment without the possibility of parole with
respect to juveniles under the age of 18. Id. at 489. Cormier asks that we apply the
analysis in Miller to adults.
The United States Supreme Court, however, has rejected this application. In
Harmelin v. Michigan, 501 U.S. 957 (1991), the Court considered the propriety of
mandatory life imprisonment without parole for possessing more than 650 grams of
cocaine. Id. at 995, 1002. Refusing to extend an individualized punishment
14 requirement beyond the death-penalty context, it held that the imposition of
mandatory life imprisonment without the possibility of parole did not violate the
Eighth Amendment’s protection against cruel and unusual punishment. See id. at
995–96. In deciding Miller, the Court limited its holding to cases involving juvenile
offenders and declared that it “neither overrules nor undermines nor conflicts with
Harmelin.” 567 U.S. at 480–82; see also Lopez v. State, 493 S.W.3d 126, 139 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (addressing Miller’s language and
concluding that Miller did not alter Harmelin).
Multiple courts, including this one, thus have continued to follow Harmelin,
holding that the Eighth Amendment does not guarantee that adult defendants, like
their juvenile counterparts, must receive an individualized punishment hearing when
given an automatic punishment of life without the possibility of parole for capital
murder. See, e.g., Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. App. 2014) (per
curiam); Lopez, 493 S.W.3d at 139; Duran, 363 S.W.3d at 723; Lewis v. State, 448
S.W.3d 138, 146–47 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Under
these precedents, mandatory life imprisonment of an adult defendant does not violate
constitutional protections against cruel and unusual punishment. Cormier’s
challenge provides no basis for distinguishing these precedents from her case. Thus,
we hold that Cormier has failed to overcome the presumption of constitutionality
that applies to Section 12.31(a)(2).
15 B. The application of Section 12.31(a)(2) to Cormier does not violate the constitutional prohibition against cruel and unusual punishment. Alternatively, Cormier contends that Section 12.31(a)(2) is unconstitutional
as applied to her case. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.
Crim. App. 2011). A statute may be valid as applied to one set of facts and invalid
as applied to a different set of facts. Id. To prevail in this challenge, Cormier must
show that Section 12.31(a)(2) yields an unconstitutional result when it is applied to
the facts and circumstances of this case. See id.; see also Ploeger v. State, 189
S.W.3d 799, 813 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
According to Cormier, Section 12.31(a)(2) prevented consideration of two
significant mitigating circumstances in her case: (1) her participation merely as a
party to the murder, and not as the primary actor, and (2) the evidence supporting
her duress defense, including her history of prescription drug abuse and as a victim
of domestic violence. This Court has rejected a claim that the mandatory life
imprisonment required under Section 12.31(a) of the Texas Penal Code is a cruel
and unusual punishment under the Eighth Amendment when a defendant has been
convicted as a party to capital murder and not as the primary actor. See Cienfuegos
v. State, 113 S.W.3d 481, 496 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
Cormier’s claim that the mandatory automatic punishment does not allow for
consideration of her mitigating circumstances is similarly unavailing. Texas courts
16 have overruled constitutional challenges to Section 12.31(a)(2) based on other
arguably compelling mitigating circumstances. See, e.g., Modarresi v. State, 488
S.W.3d 455, 465–67 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (defendant
claimed that she suffered from mental illness, particularly postpartum depression).
Further, the Court of Criminal Appeals, in applying Miller, has held that juvenile
offenders who had been imprisoned for life without parole were not entitled to have
individualized punishment hearings after Miller but were entitled instead only to
automatic modification of their punishment from life without parole to life with the
possibility of parole. Turner, 443 S.W.3d at 129. Accordingly, we hold that Cormier
has not demonstrated that Section 12.31(a)(2) is unconstitutional as applied to her
case. We reject Cormier’s challenge that her punishment, as applied to the facts of
her case, amounts to a violation of the state and federal constitutions.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Jennings, Bland, and Brown.
Publish. TEX. R. APP. P. 47.2(b).