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Franklin v. State

Court of Criminal Appeals of Texas

July 3, 2019

DEMOND FRANKLIN, Appellant
v.
THE STATE OF TEXAS

          ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

          OPINION

          Keller, P.J.

         Appellant was charged with capital murder, [1] and the State waived the death penalty. Upon conviction, he was sentenced to the mandatory sentence of life without parole.[2] On appeal, Appellant claimed for the first time that the age of a defendant at the time of an offense is an element of the offense that must be proven by the State. On the basis of this proposition, he argues that his sentence should be life with the possibility of parole. We disagree, and consequently, we affirm the judgment of the court of appeals.

         I. BACKGROUND

         In the court of appeals, Appellant contended, among other things, that the trial court erred in imposing a sentence of life without parole, "because the State neither alleged, nor supported with any evidence, that Appellant was at least eighteen [18] years of age on the date of the offense."[3] The point of error did not state a legal basis for the claim, but in the argument section, Appellant cited Miller v. Alabama[4] for the proposition that it is unconstitutional to impose a mandatory sentence of life without parole on someone who was under age 18 at the time of the offense. First, relying upon our opinion in Garza v. State, [5] Appellant observed that a Miller claim is not subject to forfeiture by inaction. Second, without specifically claiming that the evidence was insufficient, he also cited authority for the proposition that the sufficiency of the evidence may be challenged for the first time on appeal. Finally, citing to Texas statutes, Appellant pointed out that the penalty for a capital crime depends on how old the defendant was on the date of his offense.[6]

         In addressing Appellant's point of error, the court of appeals initially reaffirmed its holding in a prior case that a capital-murder defendant's age at the time of the offense "is in the nature of an affirmative defense."[7] The court of appeals concluded that proof of age was like proof of intellectual disability, which had been held to be comparable to an affirmative defense.[8] The court noted that "the appellate record is completely devoid of any evidence regarding Franklin's date of birth."[9] The court concluded that, because Appellant "failed to raise the issue of whether he was eighteen years' old at the time of the offense, the issue cannot be raised now on direct appeal."[10]

         II. ANALYSIS

         A. Miller

         In his first ground for review, Appellant contends that the court of appeals erred in concluding that his Miller claim was forfeited by inaction. In Miller, the Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'"[11] We held in Garza that a Miller claim is not forfeited by the failure to raise it at trial.[12]

         Appellant's case does not fall under Miller. The heart of a Miller claim is the assertion that the Constitution would be violated by applying a mandatory sentence of life without parole to the defendant because he was underage at the time of his offense. Appellant does not claim that he was under the age of 18 at the time of his offense. The claim that he calls a Miller claim concerns who has the burden to prove age. Appellant relies upon Miller to argue that he did not need to preserve his claim at trial. But invoking Miller does not cast a magic cloak of unforfeitability over a claim. A defendant who wishes to rely on Miller must claim that he was under the age of 18 at the time of his offense. Because Appellant has not done so, either at trial or on appeal, a Miller claim is not before us. We agree with the court of appeals that, because he did not raise his claim regarding who bears the burden on the issue of age, he has forfeited this claim.[13]

         Appellant also suggests that he might be entitled to a remand to litigate and substantiate a Miller claim. For this proposition, he cites the court of appeals's remand opinion in Garza.[14] That opinion is not binding on us, and we need not decide here whether we would find it persuasive on its facts because that case is distinguishable. Because, unlike Garza, Appellant has not raised a Miller claim, he is not entitled to a remand.

         B. Sufficiency of the Evidence

         In his second ground, Appellant contends that the court of appeals erred in ruling that a defendant's age at the time of the offense is an affirmative defense for which the defendant bears the burden of proof. He seems to be claiming that the evidence is insufficient to support his sentence of life without parole because the State had the burden of proof as to his age and failed to meet that burden. Because sufficiency claims may be raised for the first time on appeal, [15] we address this claim as it bears on the sufficiency of the evidence.

         We have held that the issue of intellectual disability is like an affirmative defense and that the defendant has the burden to prove it by a preponderance of the evidence, whether the issue is raised at trial or on habeas.[16] An age-based ineligibility claim is like an Atkins[17] intellectual-disability claim in that a characteristic of the defendant that mitigates moral culpability creates an exemption with respect to punishment. Given this similarity, we agree with the court of appeals that a person asserting such a claim has the burden to prove that he falls within the applicable class of persons.

         Appellant also argues that the defendant's age has been made an element of capital murder by statute. He claims that Penal Code § 12.31 essentially creates an offense of "aggravated capital murder" that contains the aggravating element of being 18 years of age or older, with a punishment of life without parole instead of a life sentence that allows for parole. Consequently, he claims, absent evidence of his age, the State has failed to prove that aggravating element, and he must be convicted of the "lesser" offense of "regular capital murder." Appellant's argument poses an issue of statutory construction.

         In construing a statute, we give effect to the plain meaning of its text unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.[18] We read words and phrases in context and construe them according to the rules of grammar and usage.[19] A statute must be read as a whole in determining the meaning of particular provisions, [20] and it is presumed that the entire statute is intended to be effective.[21] If we find ambiguity or absurd results, we can consult extratextual factors, including (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction, (6) administrative construction of the statute, and (7) the title (caption), preamble, and emergency provision.[22]

         Penal Code § 12.31(a) provides:

An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:
(1)life, if the individual committed the offense when younger than 18 years of age; or
(2)life without parole, if the individual committed the offense when 18 years of age or older.[23]

         A review of the statutory text makes clear that the language relating to age does not prescribe an element of a capital murder offense but is a matter relating to punishment. The age of the offender comes into play only after he has been "adjudged guilty of a capital felony," and the statute says that such an offender shall be "punished by" a certain amount depending on his age at the time of the offense.[24] These quoted phrases signify a punishment matter.[25] In addition, the statute appears in the subchapter titled "Ordinary Felony Punishments."[26]

         The remaining question is whether age is a punishment enhancer, and so, an element from a constitutional perspective that has to be proven by the State beyond a reasonable doubt.[27] Appellant contends that it is, but we disagree. The United States Supreme Court has held that the State may "choose[] to recognize a factor that mitigates the degree of criminality or punishment" without being required "to prove its nonexistence."[28] We have followed this holding, concluding that the United States Constitution does not require the State to bear the burden of proof on an issue that, if answered affirmatively, would reduce, rather than increase, the sentence.[29] If being under age 18 is a fact that reduces the otherwise applicable sentence, then a statute can place the burden of proof on the defendant to show that fact without violating the Constitution.

         If subdivisions (1) and (2) of § 12.31(a) are viewed in isolation, then we are confronted with two prescribed punishments, with the age of 18 or older attached to the higher punishment and with being under age 18 attached to the lower punishment. Both subdivisions cannot prescribe elements the State must prove because that would lead to the absurd result of placing a defendant's punishment in legal limbo, where, as in the present case, there is no evidence of the defendant's age. In isolation, the first subdivision could be viewed as a punishment aggravator (that the State must prove) while the second ...


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