Case Information
*1 Fourth Court of Appeals San Antonio, Texas
OPINION
No. 04-11-00891-CR
James GARZA ,
Appellant
v.
The STATE of Texas,
Appellee From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR12648A Honorable Melisa Skinner, Judge Presiding Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 23, 2014
REVERSED AND REMANDED
Appellant James Garza was indicted for the offense of capital murder. The State waived
the death penalty. After a jury found Garza guilty of capital murder, the trial court imposed what
was, at the time, the statutorily mandated sentence of life without parole.
See
Act of May 29, 2009,
81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930, 1930,
amended by
, Act of July 11, 2013,
83rd Leg., 2d C.S., ch. 2, § 1, 2013 Tex. Sess. Law Serv. 4802, 4802 (current version at T . § 12.31(a) (West Supp. 2014)). In his original appeal to this court, Garza,
relying on the Supreme Court’s decision in
Miller v. Alabama
, __ U.S. __,
B ACKGROUND
As we stated in our original decision, a detailed rendition of the facts is unnecessary to the disposition of the appeal. Accordingly, we once again provide only a brief statement of the facts for context.
Garza and another man asked the complainant, Mario Alberto Raygoza Jr., to help them move their belongings into an apartment. However, the request for assistance was nothing more than a ruse to allow Garza and his friend to obtain Raygoza’s car. When Raygoza arrived, Garza stabbed him multiple times, killing him. Thereafter, Garza threw Raygoza’s body into the parking lot of the apartment complex. Garza and his friend then stole Raygoza’s car and flеd to Colorado. Some weeks after the murder, Colorado police arrested Garza and his friend for shoplifting.
When he was arrested by Colorado authorities, Garza gave conflicting statements about his age, stating at various times he was eighteen and nineteen. Finally, after learning his friend had advised authorities that Garza was seventeen, Garza stated he was seventeen years of age.
Garza was returned to Texas to face capital murder charges. After a jury found him guilty, the trial court imposed upon Garza the statutorily mandated sentence of life imprisonment without the possibility of parole. See Act of June 19, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930 (amended 2013). Garza ultimately perfected this appeal. NALYSIS
Garza raises a single complaint. Relying on the Supreme Court’s decision in
Miller v.
Alabama
, __ U.S. __,
The Law
In , the Supreme Court was asked to determine whether statutes that mandate the
imposition of life without parole violate the Eighth Amendment when such punishment is imposed
upon those who are under the age of eighteen at the time of the offense.
In reaching its decision, the Court noted, as it had in prior cases, that “‘[t]he concept of
proportionality is central to the Eighth Amendment[,]’” and proportionality must be viewed in
light of “‘evolving standards of decency that mark the progress of a maturing society.’”
Id.
at
2463 (quoting
Graham v. Florida
,
The Court held that “[m]andatory life without parole for [one under the age of eighteen] precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure tо appreciate risks and consequences.” Miller , 132 S.Ct. at 2468. It also precludes the sentencing authority from taking into account the defendant’s family and “home environment,” a situation over which he generally has no choice and from which he cannot extricate himself. Id. Moreover, it does not permit consideration of the circumstances of the offеnse, including the extent of the defendant’s participation and peer pressure. Id. According to the Court, “making youth (and all that accompanies it) irrelevant” to the imposition of a sentence of life without the possibility of parole, “poses too great a risk of disproportionate punishment.” Id. at 2469. Thus, a sentencing scheme that mandates an automatic sentence of life without parole for those who were under the age of eighteen at the time of the offense is unconstitutional. Id.
Notably, the Court held this narrow holding was sufficient to decide the cases before it in . Id. The Court specifically refused to consider the argument that the Eighth Amendment requires a categorical ban on life without parole for those under the age of eighteen. However, the Court warned — given its decisions in , Graham , and Roper — that situations in which sentencing those under the age of eighteen to life without the possibility of parole would be appropriate would be rare “because of the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunatе yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” (quoting Roper , 543 U.S. at 573).
Although
Miller
did not impose a categorical ban on a sentence of life without parole for
those under the age of eighteen at the time of the offense, it appears the Texas Legislature took the
Supreme Court’s warning to heart. In 2013, while Gаrza’s appeal was pending,
[2]
the Texas
Legislature amended section 12.31 of the Texas Penal Code. Prior to the amendment, if the State
chose not to seek the death penalty in a capital case, a trial court was statutorily mandated, upon
return of a verdict of guilt, to sentence a defendant, whose case had not been transferred to the
district court pursuant to section 54.02 of the Texas Family Code, to life imprisonment without the
possibility of parole. Act of May 29, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws
1930, 1930 (amended 2013). This statute would obviously be unconstitutional under the mandates
of .
See Miller
,
Pursuant to the amendment, if the defendant committed the capital offense when he was
younger than eighteen years of age, the trial court
cannot
sentence him to life without parole;
rather, the trial court is mandated to sentence the defendant to life, which includes a possibility of
parole. Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 1, 2013 Tex. Sess. Law Serv. 4802, 4802
(current version at T . § 12.31(a) (West Supp. 2014)). Accordingly, the State
of Texas has now gone beyond the mandates of , placing a categorical ban on the sentence
of lifе without parole for those who are under the age of eighteen at the time of the offense.
Compare Miller
,
When it amended section 12.31, the Legislature made the statute effective as of July 22, 2013. The Legislature specifically provided that the change in the law was applicable to: (1) criminal actions pending оn the effective date; (2) cases on appeal on the effective date; and (3) matters commenced on or after the effective date. T . § 12.31 historical note [Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3, 2013 Tex. Sess. Law Serv. 4802, 4803]. As we noted in footnote two of this opinion, this matter was pending on appeal on the effective date of the amended statute. Therefore, we hold the amended version, i.e., the current version, of section 12.31 of the Texas Penal Code is applicable in this case.
Now, we must decide the effect of Miller and the amended version of article 12.31 on the matter before us.
Application
Under the applicable law, if Garza was under the age of eighteen at the time of the offense, the trial court could not, under , automatically sentencе Garza to life without the possibility of parole as it did. However, Garza’s age was not an issue at the trial — the Supreme Court’s decision in had not yet been rendered, and Garza’s age at the time of the offense was not definitively established in the record before us. Rather, the record shows that when Garza was arrested in Colorado, he was equivocal about his age. He first told law enforcement authorities he was eighteen, but then told them he was nineteen. When the Colorado authorities advised Garza his friend had told them Garza was seventeen, Garza agreed he was. Given the confusion, and being cautious, Colorado authorities placed Garza in a juvenile detention facility before he was transported back to Texas to face charges.
In addition to the contradictory evidence provided by Garza, as related by Colorado authorities during the trial, the clerk’s record contains a single document, the Texas arrest warrant, listing Garza’s date of birth as “04/02/1992.” The offense took place on September 6, 2009. Thus, if the date of birth on the arrest warrant is correсt, Garza was seventeen at the time of the offense. However, there is nothing in the record to establish how, or from whom, the date of birth was obtained.
We fault neither Garza nor the State for the failure to establish Garza’s age during trial or prior to sentencing. There was, at the time of trial, no need for a definitive answer with regard to Garza’s age because undеr the law applicable at the time — state and federal — Garza was subject to an automatic sentence of life without the possibility of parole if he was found guilty. Act of May 29, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930, 1930 (amended 2013). Thus, it is not surprising that neither the State nor Garza took steps at trial to prove his age at the time of the offense. It is equally obvious why the trial court was not called upon to make any factual finding on the issue of Garza’s age. So, given the state of the record, how are we to proceed?
Both parties agree there must be a factual determination as to Garza’s age at the time of
the offense. The State suggests the burden of proof on the issue should fall on Garza. In support
of its position, thе State argues age is not an implied element of the crime of capital murder that
the State is required to prove. Citing
Ex parte Briseno
,
In Briseno , the defendant, who had been sentenced tо death, sought habeas relief, alleging he was not subject to the death penalty because he was mentally retarded. at 2. The court of criminal appeals held the burden was upon the defendant to establish this fact by a preponderance of the evidence. Id. at 12. The court explained that a lack of mental retardation is not an implied element of the crime of capital murder that the State must prove. Id. at 10. As the court noted, the absence of mental retardation does not increase the penalty of the crime beyond the statutory maximum, and thus, is not an element of the offense. Id. at 10, n.36. Rather, proof of mental retardation “exempts” a defendant from the maximum statutory punishment, i.e., death. Id. at 10. Thus, the court reasoned the issue of mental retardation is similar to affirmative defenses such as insanity, incompetency to stand trial, and incompetency to be executed. Id. at 12.
Similarly, in
Hall v. State
, the court held on direct appeal in a capital case that mental
retardation is “comparable to an affirmative defense, and thus, the burden is always upon the
defendant to prove that condition by a preponderance of the evidence.”
We find the reasoning in
Briseno
and
Hall
compelling. Garza’s age is not an implied
element of the offense for which he was charged — capital murder. T .
§ 19.03(a) (West Supp. 2014) (setting out elements of offense of capital murder). Rather, proof
that Garza was seventeen at the time of the offense merely “exempts” him from the maximum
statutory punishment, i.e., life without possibility of parole.
See Briseno
, 135 S.W.3d at 10.
Accordingly, we hold that like mental retardation, Garza’s age at the time of the offense is in the
nature of an affirmative defense, and it is his burden to prove by a preponderance of the evidence
that he was seventeen at the time of the offense in order to avoid the penalty of life without the
possibility of parole.
See id
;
Hall
,
Our conclusion on this issue is supported by practicality. It is Garza’s own age that must be established. He would naturally have more convenient access to documentation or other evidence establishing his age at the time of the offense, e.g., a birth certificate, driver’s license, identification card, etc. Thus, it is not unduly burdensome to require Garza to establish his age at the time of the offense.
Garza argues article 39.14(h) of the Texas Code of Criminal Procedure requires the State, if it has documents or information relating to Garza’s age, to turn that information over to Garza. Article 39.14(h) requires the State to disclose to the defendant any document, item, or information in its possession, custody, or control that “would tend to reduce the punishment for the offense charged.” T EX . C ODE C RIM . P ROC . A NN . art. 39.14(h) (West Supp. 2014). Subsection (h) was added to Article 39.14 in 2013, and the historical notes specifically state the changes to Article 39.14 apply “to the prosecution of an offense committed on or after the effective date [January 1, 2014] of this Act.” T EX . C ODE C RIM . P ROC . A NN . art. 39.14(h) historical note [Act of May 14, 2013, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex. Sess. Law Serv. 106, 108]. The offense in this case took place September 6, 2009. Thus, article 39.14 is inapplicable. However, if this provision were applicable, Garza’s argument presupposes the State has such information in its possession, and there is nothing before this court that mandates such a conclusion.
In sum, we hold the burden of proof is upon Garza to establish by a preponderance of the evidence that he was under the age of eighteеn at the time of the offense, which was September 6, 2009. Under the applicable law — and the current version of section 12.31(a) of the Penal Code — if Garza carries his burden, the trial court must sentence him to life as opposed to life without the possibility of parole. T . § 12.31(a)(1); , 132 S. Ct. at 2460, 2469. If, on the other hand, Garza fails to prove by a preponderance of the evidence that he was under the age of eighteen at the time of the offense, the trial court must sentence him to life without the possibility of parole. T C . § 12.31(a)(2). ONCLUSION
Based on the foregoing, we sustain Garza’s sole issue. We reverse the trial court’s sentence of life without the possibility of parole, and we remand this matter to the trial court for resentencing in accordance with this court’s opinion.
Marialyn Barnard, Justice Publish
Notes
[1] The Eighth Amendment applies to punishments imposed by state courts through the Due Process Clause of the Fourteenth Amendment. U.S. ONST . amend. XIV.
[2] Our original opinion in this case issued on October 24, 2012. Garza filed his petition for discretionary review on December 13, 2012. The court of criminal appeals granted Garza’s petition on March 20, 2013, and its mandate, which remanded the matter to this court, issued on July 7, 2014. The appeal was resubmitted in this court on October 20, 2014, after the parties filed supplemental briefs.