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 Whitehill 1

Opinion by Justice Lang Terrance Henry appeals the trial court’s judgment convic ting 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 o f 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 uncons titutional

. 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.– 2

– 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. W hile Henry’s appeal was pending, the United States Supreme Court held that the Eighth Amendment to the United States Constitution forbids a se ntencing 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) ; L ewis v. State , 428 S.W.3d 860, 863 (Tex. Crim. App. 2014)

. Henry appealed

. In his first appeal, t his Court reversed the trial court’s judgment as to punish ment and remanded the ca se 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 assesse d 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 review s de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). In assessing a
statute ’ s constitutionality, an appellate court start s 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– 3

–

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 appl ied 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 mandato ry 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
t he Fourteenth Amendment, prohibits cruel and unusual punishment and requires a criminal sentence to be proportionate to the crime committed. See U.S. C ONST
. 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)– 4

–

(“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 t hat is based upon the sentencer’ s informed normative judgment, is unassailable on appeal.”)

. “The Eighth Ame ndment 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
p arole 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. d ism’d , untimel y 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 1 29; 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 stat ed he “submits the following issue [] on appeal . . . [to] preserve an y future Federal Co nstitutional violation claim .”– 5

– IV . EX POST FACTO In issu e two, Henry argues his punishment on remand is unconstitutional because the law used to assess his new punishment was applied ex post facto. Henry argues the holding in Miller made the punishment originally authorized by the Texas Legislature void ab ini tio . As a result, he claims that, for the offense he was convicted, there was no punishment applicable to him. Consequently, Henry contends that the 2013 amendment to section 12.31 of the Texas Penal Code “severely increased his punishment.” The State r esponds that “[t]his argument is pure sophistry.” The State argues the 2013 amendment to section 12.31 “did not change the punishment for capital murder: it was imprisonment for life when Henry committed the offense and it was imprisonment for life when he was resentenced in August [] 2013.”
A . Applicable Law Article I, section 9 of the United States Cons titution states, “No . . . ex post facto Law shall be passed,” and a rticle I, section 10 prohibits the states from passing any ex post facto law.
U.S. C ONST
. art. I, § § 9, 10. Similarly, article I, section 16 of the Texas Constitution states that “[n]o

. . . ex post facto law

. . . shall be made.” T EX
. C ONST
. art. 1, § 16

. Only the legislature can violate either the federal or state Ex Post Facto Clause. Ex parte Heilman , 456 S.W.3d 159,
163 (Tex. Crim. App. 2015). Under the Texas or United States Cons titution, an ex post facto law: (1) punishes as a crime an act previously committed which was innocent when done ; (2) aggravates a crime, or makes it greater than it was, when committed; ( 3 ) changes the punishment and inflicts greater punishment than the l aw attached to the criminal offense when committed; or (4 ) deprives a person charged with a crime of any defense available at the time the act was committed. See Peugh v. United States , 133 S. Ct. 207 2 , 2081 (2013)(citing Calder v. Bull , 3 U.S. (Dall.) 386, 390 (1798)); Collins v. Youngblood , 497 U.S. 37, 42 (1990) ; Rodriguez v. State , 93 S.W.3d 60,– 6

–

66

– 67 (Tex. Crim. App. 2002); Ex parte Davis , 947 S.W.2d 216, 219

– 20 (Tex. Crim. App. 1996); Johnson v. State , 930 S.W.2d 589, 591 (Tex. Crim. App. 1996). T he Ex Post Facto Clause prohibits applying a new statute’s higher penalties to pre

- statute conduct, but it does not prohibit applying lower penalties. See Dorsey v. United States , 132 S. Ct. 2321, 2332 (2012). The Texas Court of Criminal Appeals has recog nized that an unconstitutional statute is void ab initio and when a statute is adjudged to be unconstitutional, it is as if it had never been, i.e., suc h an unconstitutional statute is stillborn. See Smith v. State , No. PD

- 1790

- 13, 2015 WL 3895016, at * 4 (Tex. Crim. App. June 24, 2015)(quoting Reyes v. State , 753 S.W.2d 382, 383 (Tex. Crim. App. 1988) and Ex parte Bockhorn , 138 S.W. 706, 707 (Tex. Crim. App. 1911)). When a law under which a defendant is found guilty is declared unconstitutional, the law stands as if the new law had never been enacted. See Ex parte Jones , 440 S.W.3d 628, 629 (Tex. Crim. App. 2014)(if appellant incorrect in constitutional challenge, th en amendment valid and his offense is punishable as third

- degree felony, but if he is correct, then his offense is punishable under prior law as state

-

jail felony); Hurwitz v. State , 700 S.W.2d 919, 923

– 24 (Tex. Crim. App. 1985) (Teague, J., concurring)

. H owever, “[b]ecause the holding in Miller is limited to a prohibition on mandatory life without parole for juvenile offenders, [defendants] are not entitled to [new] punishment hearings.” See Lewis , 428 S.W.3d at 864 (addressing Eighth Amendment challenge)

. B . Application of the Law to the Facts Before 2005, section 12.31 of the Texas Penal Code provided that “ 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 institutional division for life ” and “In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment is mandato ry– 7

–

on conviction of the capital felony.” Act of May 2 9 , 199 3 , 7 3rd Leg., R.S., ch. 900 , § 1 01.1, 1993 Tex. Gen. Laws 3586 , 3602

– 03 (amended 2005, 2009, and 2013)

. Accordingly, until 2005, an individual adjudged guilty of a capital felony, in which the State did not seek the death penalty, was punish ed with imprisonment for life. 3 Ex parte Maxwell , 424 S.W.3d 66, 68 n.3 (Tex. Crim. App. 2014). In 2005, the Texas Legislature amended section 12.31 to state that “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 institutional division for life without parole” and “ In a capital felony trial in which the state does not seek the death penalty, prospective juro rs shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.” Act of May 28, 2005, 79th Leg., ch. 787, § 1, 2005 Tex. Gen. Laws 2705 (amended 2009 and 2013). Also, i n 2005, the United States Supreme Court held that the Eighth Amendment bars the execution of juveniles, even when they commit murder. Roper , 543 U.S. 551. In 2009, section 12.31 was amended to distinguish cases that had been trans ferred pursuant to section 54.02 of the Texas Family Code. See Ex parte Maxwell , 424 S.W.3d at 68 n.3. Specifically, the statute as amended in 2009 stated : § 12.31. Capital Felony (a) 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 th e Texas De partment 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

3 Section 12.31 of the Texas Penal Code has imposed life imprisonment since it was first enacted in 1973. Beginning in 1973, s ection 12.31 of the Texas Penal Code provided that “an individual adjudged guilty of a capital fel ony shall be punished by confinement . . . for life or by death” and “prospective jurors shall be informed that a sentence of life imprisonment or death [was] mandatory on conviction of a capital felony.” Act of May 28, 1973, 63rd Leg., R.S., ch. 426, art . 2, § 2, 1973 Tex. Gen. Laws 1122, 1124 (amended 1991, 1993, 2005, 2009, and 2013). In 1991, the Texas Legislature amended section 12.31, in part, to state, “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 confinement in the institutional division for life” and “In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory on conviction of the capital felony.” Act of May 27, 1991, 72nd Leg., R.S. , ch. 652, § 12 , 1991 Tex. Gen. Laws 2394, 2397 (amended 1993, 2005, 2009, and 2013)

.– 8

–

death pen alty shall be punished by imprisonment in the Texas Department of Criminal Justice for: (1) life, if the individual’s case was transferred to the court under Section 54.02, Family Code; or (2) life without parole. (b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penal ty, prospective jurors shall be informed that the state is not seeking the death penalty and that: (a) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Co de; or (b) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony. Act of May 29 , 200 9 , 81st Leg., ch. 7 65 , § 1, 200 9 Tex. Gen. Laws 1930 (a mended 2013) ; Ex parte Maxwell , 424 S.W.3d at 68 n.3

. This was the law in effect at the time of Henry’s conviction and original sentencing. In 2012, 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 the possibi lity of parole is mandatory, rather than based on an individualized sentencing assessment. Miller , 132 S. Ct. 2455; Turner , 443 S.W.3d at 128; Lewis , 428 S.W.3d at 861. Ho wever, contrary to Henry’s contention that Miller declared the punishment authorize d by the Texas Legislature at the time of his original sentence void ab initio , the United State s Supreme Court did not announce a categorical ban on assessing life without parole on minors. See Lewis , 428 S.W.3d at 863; Carmon v. State , 456 S.W.3d 594, 5 99 (Tex. App.

— Houston [1st Dist.] 2014 , pet. ref’d ). “In response to the [United States] Supreme Court’s opinion in Miller , the Texas Legislature amended the capital sentencing statute to provide that life imprisonment, with the– 9

–

possibility of parole, is the mandatory sentence for defendants convicted of a capital offense which was committed when the defendant was younger than eighteen.” Turner , 443 S.W.3d at 129 n.2. Specifically , section 12.31 of the Texas Penal Code was amended to state : § 12.31. Cap ital Felony (a) 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 adjudg ed 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 ag e; or (2) life without parole, if the individual committed the offense when 18 years of age or older. (b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment witho ut parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that: (a) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age ; or (b) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony , if the individual committed the offense when 18 years of age or older

. Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws 4802 (codified at T EX
. P ENAL C ODE A NN
. § 12.31 (West Supp. 214)). This amendment became effective on July 22,
2013. On August 15, 2013, the trial court assessed Henry’s new punishment at life imprisonment, with the possibility of parole, in accordance with the 2013 amendments to section– 10

–

12.31. 4 See T EX
. P ENAL C ODE A NN
. § 12.31. The 2013 Session Laws , amending section 12.31 , include d a savings clause that states: Section 3. The change in law made by this Act: (1) applies to a criminal action pending, on appeal, or commenced on or after the effective date [July 22, 2013] of this Act, regardless of whether the criminal ac tion is based on an offense committed before, on, or after that date; and (2) does not affect a final conviction that exists on the effective date of this Act. Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also
Turner , 443 S.W.3d at 129 n.2. The change in Henry’s punishment did not inflict greater punishment than the law attached to the criminal offense when Henry committed it. Compare Act of May 29, 2009, 81st Leg., ch. 765, § 1, 2009 Tex. Gen. Laws at 1930 (re quiring mandatory sentence of life without parole) with Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws at 4802 (requiring mandatory sentence of life). Initially, Henry was sentenced to mandatory life without the possibility of p arole. This is the second most severe penalty permitted in Texas. Meadoux v.
State , 325 S.W.3d 189, 195 (Tex. Crim. App. 2010). On remand, Henry was sentenced to life with the possibility of parole, a less severe punishment. See Carmon , 456 S.W.3d at 599. The prohibition against the application of more severe punishment laws ex post facto does not prohibit the application of new lower penalties after the effective date of the new legislation. See Dorsey , 132 S. Ct. at 2332. Further, r egardless o f whether the law in effect before the 200 5 amendment to section 12.31 of the Texas Penal Code or the 2013 amendment was applied,

4 During the resentencing hearing, the t rial court stated:

Mr. Henry was found guilty of capital murder by a jury on the 7th day of March, 2011. The [trial court] assessed punishment: The statutory punishment of life confinement in the Texas Department of Criminal Justice without parole.
Since that time, the Legislature has amended the statute. This sentence is no longer legal and [Henry] will be resentenced to life in the penitentiary with the possibility of parole.– 11

–

Henry’s punishment on remand wou ld have been the same, i.e., life, with the possibility of parole. Compare Act of May 29, 199 3, 73rd Leg., R.S., ch. 900, § 101.1, 1993 Tex. Gen. Laws
at 3602

– 03 (requiring mandatory sentence of life) with Act of July 11, 2013, 83rd Leg., 2d S.C., ch. 2, § 1, 2013 Tex. Gen. Laws at 4802 (requiring mandatory sentence of life)

. Accordingly, we con clude the trial court’s application of the 2013 amendment to section
12.31 when resentencing Henry was not an unconstitutional ex post facto application of the amended law because the punishment provided for in the 2013 amendment was less severe. In addit ion, we conclude Henry has not suffered harm because the mandatory punishment under the law in effect before the 2005 amendment to section 12.31 was the same as the new punishment assessed pursuant to the 2013 amendment

. Issue two is decided against Henry.
V . DUE PROCESS In issue three, Henry argues his punishment on remand is unconstitutional because the law relating to the assessment of his new punishment violates his right to due process

. The State responds that the amended statute can be given retroactive effect. A. Applicable Law The Texas Court of Criminals Appeals defined retroactive laws : A retroactive law is one meant to act on things that are past. As such, a statute is retroactive which takes away or impairs vested righ ts acquired under existing laws or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or considerations already past, and which affects acts or rights accruing before it came into force. Ex Parte Abahosh , 561 S.W.2d 202, 203

– 0 4 (Tex. Crim. App. 1978). In other words, a law is retroactive if it changes the legal consequences of acts before its effective date. In re Ramirez , 184 S.W.3d 392, 395 (Tex. App.

— Dallas 2006, orig. proceeding).– 12

–

The Fourteenth Amendment provides in part : “[the] State [shall not] deprive any person of life, liberty, or property, without due process of law.” U.S. C ONST
. amend. XIV, § 1. The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive leg islation; a justification sufficient to validate a statute ’ s prospective application under the Clause “may not suffice” to warrant its retroactive application. Landgraf v. USI Film Prods. , 511 U.S. 244, 266 (1994); Usery v. Turner Elkhorn Mining Co. , 428 U.S. 1, 17 (1976). The Texas Constitutional due

- process provision provides: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land .” T EX
. C ONST . art. I, § 19. In addition, a rticle 1, section 16 of the Texas Constitution provides, “No

. . . retroactive law

. . . shall be made.” T EX
. C ONST
. art. 1, § 16

. A judicial decision having an unjust retroactive application is barred by the due process provisions of the Fourteenth A mendment to the United States Constitution. Ex Parte Bonham , 707 S.W.2d 107, 108 n.1 (Tex. Crim. App. 1986). “Although this limitation is often regarded as the judicial cognate of the ex post facto prohibition, t he [United States] Supreme Court has made clear that the two are not co

- extensive.” Ex Parte Heilman , 456 S.W.3d at 166 (citing Rogers v.
Tennessee , 532 U.S. 451, 460 (2001)). Courts can violate the due process provisions through an unforeseeable judicia l enlargement of a criminal statute applied retroactively. Bouie v. City of Columbia , 378 U.S. 347, 353 (1964); Ex Parte Heilman , 456 S.W.3d at 166. “If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Bouie , 378 U.S. at 354. “A state judicial decision may not operate retroactively if it has the effect of depriving persons of fair warning of what conduct wi ll give rise to which criminal penalties.” Proctor v.– 13

–

State , 967 S.W.2d 840, 845 (Tex. Crim. App. 1998) distinguished on other grounds by Grado v.
State , 445 S.W.3d 736 (Tex. Crim. App. 2014)

. But a decision may apply retroactively if it does not alter an offense’ s definition, range of punishment, or substantive defenses. Proctor , 967 S.W.2d at 845

. B. Application of the Law to the Facts As previously noted, the 2013 Session Laws, amending section 12.31, included a savings clause that states it “ applie s to a criminal action pending, on appeal, or commenced on or after the effective date [July 22, 2013] 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 S.C., ch. 2, § 3, 2013 Tex. Gen. Laws at 4803; see also Turner , 443 S.W.3d at 129 n.2. However,
t here is nothing to suggest the 2013 amendment to section 12.31 or the trial court’s app lication of the amended law was “unexpected and indefensible” such that it offended the due process principle of fair warning. The trial court’s application of the 201 3 amendment did not retroactively alter the definition of capital murder, the range of punishment for a capital felony, or the substantive defenses that w ere available. The punishment before and after the 2013 amendment was life imprisonment. Accordingly, we conclude Henry’s punishment on remand does not violate his right to due process. Issue three is decided against Henry.
VI . BILL OF ATTAINDER In issu e four, Henry argues his punishment on remand is unconstitutional because the law relating to the assessment of his new punishment constitutes a B ill of A ttainder. Henry claims the remedy of life with the possibility of parole as a mandatory and automatic punishment was applied to him by legislative enactment, not by judicial trial by jury as he elected. Henry argues he is a member of an identifiable class of persons under eighteen years of age that have been– 14

–

tried and convicted of the adult offense of ca pital murder. The State responds that although “the legislature retroactively changed the parole law applicable to Henry

. . . [his punishment is] a result of a judicial proceeding that fairly determined his guilt and punishment, and not by use of legislative power to pass upon his guilt in the absence of any of the protective safeguards of a trial.” A. Applicable Law Article I, section 9 of the United States Constitution states, “No Bill of Attainder . . . shall be passed,” and a rticle I, section 10 prohibits the states from passing any Bill of Attainder. U.S.
C ONST
. art. I, § § 9, 10. Similarly, article I, section 16 of the Texas Constitution states that “[n]o
bill of attainder

. . . shall be made.” T EX
. C ONST
. art. 1, § 16

. The prohibitions on ex post facto laws and bills of attainder are obviously closely related. See, e.g. , California Dept. of Corrections v. Morales , 514 U.S. 499, 520 n.4 (1995) (Stevens, J., dissenting, joined by Souter, J.) ; Fletcher v. Peck , 10 U.S. (6 Cranch) 87, 138

– 139 (1810). The prohibition on “Bills of Attainder” in Art. 1 §§ 9

– 10, prohibit s legislatures from singling out disfavored persons and meting out summary punishment for past conduct. Landgraf , 511 U.S. at 266; United States v. Brown , 381 U.S. 437, 456

– 62 (1 965); Landgraf Robinson v. Crown Cork & Seal Co. , 335 S.W.3d 126, 137 (Tex. 2010). To constitute a bill of attainder, the statute must: (1) specify affected persons; (2) impose punishment; and (3) fail to provide for a judicial trial. See Selective Servc . Sys. v. Minnesota Public Interest Research Grp. , 468 U.S. 841, 847 (1984)

. A bill of attaind er is a legislative act which imposes punishment on a designated person or class of persons without the benefit of a trial

. See, e.g. , Selective Servc. Sys. , 468 U.S. at 847 ; Nixon v. Admin. of Gen. Servs. , 433 U.S. 425, 468 (1977); United States v. Lovett , 328 U.S. 303, 315

– 316 (1946) ; see also Jones v. State , N o . 03

- 97

- 00592

- CR, 1999 WL 236067, at *3 (Tex.– 15

–

App.

— Austin Apr. 15, 1999, pet. ref’d)(not designated fo r publication); Golden v. State , No. 11

- 97

- 00109

- CR, 1998 WL 34194008, at *3 (Tex. App.

— Eastland Sept. 17, 1998, no pet.) (no designated for publication)

. Historically, bills of attainder generally named the persons to be punished. Selective Serv. , 468 U. S. at 847. However, t he singling out of an individual for legislatively prescribed punishment constitutes an attainder whether the individual is called by name or described in terms of conduct which, because it is past conduct, operates only as a designat ion of particular persons. Selective Serv. , 468 U.S. at 847; Communist Party of U.S. v. Subversive Activities Control Bd. , 367 U.S. 1, 86 (1961). Even if the specificity element is satisfied, a statue does not implicate the Bill of Attainder Clause unless it inflicts punishment on the specified individual or group. Selective
Serv. , 468 U.S. at 851. The severity of a sanction does not determine its character as punishment. Selective Serv. , 468 U.S. at 851; Flemming v. Nestor , 363 U.S. 603, 616 (1960). In deciding whether a statute inflicts forbidden punishment, there are three inquiries: (1) whether the challenged statute falls within the histori cal meaning of punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a legislative intent to puni sh. Selective Serv. , 468 U.S. at 852. The Bill of Attainder Clause was not intended to be a narrow, technical prohibition, but an implementation of the separation of powers. United States v. Brown , 381 U.S. 437, 442 (1965); Robinson , 335 S.W.3d at 137. It is a general safeguard against legislative exercise of the judicial function

— trial by legislature. Brown , 381 U.S. at 442; Robinson , 335 S.W.3d at 137. B. Application of the Law to the Facts Initially, we note that we need not inquire as to whether the 2013 amendment to section 12.31 contains the necessary element of punishment. It was clearly penal in nature as it was– 16

–

designed to impose criminal punishment for capital felonies. See U.S. v. O’Brien , 391 U.S. 367, 383 n.30 (1968). Accordingly, we t urn to whether the 2013 amendment to section 12.31 specif ies affected persons and fail s to provide for a judicial trial. Section 12.31 of the Texas Penal Code does not apply until a defendant commits a capital felony. As a result, it does not target named individuals or easily ascertainable members of a group. Further, before section 12.31 affects a person, that person must be found guilty of a capital felony through the judicial process. Henry’s guilt was not pronounced by 2013 amendment to section 12.3 1, but was determined by a jury. Also, Henry was re sentenced by a member of the judiciary, not the legislature . Further, Henry was represented by counsel during his trial and, in this case, on resentencing. As a result, he was provided a full and fair

o pportunity to be heard. See United States v. Siepker , No. C01

- 3057

- MWB, 2008 WL 5273088,
at * 17 (N.D. Iowa Dec. 18, 2008)(mem. op.)(statute providing for increased sentence if defendant convicted of offense while released was not a Bill of Attainder becau se before statute affected defendant, he must be found guilty of one of listed crimes and his guilty was determined by jury); Unit ed States v. Davis , 27 Fed. Appx. 592, 600 (6th Cir. 2001 )(statute seeking to impose punishment on individuals adjudicated as dangerous and possessing a firearm was not prohibited Bill of Attainder because defendant’s actions were found by jury); United States v. Chandler , 950 F.Supp. 1545, 1581 (N.D. Ala. 1996)(defendant who filed habeas petition was tried, convicted, and senten ced to death by jury, so Department of Justice’s lethal injection regulations did not subject defendant to trial by legislature according to Constitutional prohibition of Bills of Attainder) , aff’d on other grounds, 218 F.3d 1305 (11th Cir. 2000). Accordi ngly, we conclude Henry’s punishment on remand pursuant to the 2013 amendment to section 12.31 did not constitute an unconstitutional Bill of Attainder. Issue four is decided against Henry.– 17

– VII. MODIFICATION OF THE JUDGMENT Although neither party raises the issue, we observe the judgment states that Henry’s “Plea to the Offense” was “Guilty” and that the “Terms of the Plea Bargain” were “Open.” However, Henry pleaded “not guilty” and the jury found him “ guilty. ” An appellate court has the authority to modify an incorrect judgment to make the record speak the truth when it has the necessary information to do so. See T EX
. R. A PP
. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27

– 28 (Tex. Crim. App. 1993)(en banc); Asberry v. Stat e , 813 S.W.2d 526, 529

– 30 (Tex. App.

— Dallas 1991, pet. ref’d). Accordingly, we conclude the trial court’s judgment should be modified to reflect the correct statute for the offense, which is section 22.04 of the Texas Penal Code. Issue one of the State’s cross - appeal is decided in favor of the
State. Accordingly, we conclude the trial court’s judgment should be modified to state that Henry’s “Plea to the Offense” was “Not Guilty” and the “Terms of Plea Bargain” are “N/A.” VIII. CONCLUSION Henry’s punishm ent on remand is not unconstitutional. Also, the judgment incorrectly states that Henry pleaded guilty and the judgment is modified accordingly. The trial court’s judgment is affirmed as modified

.

Do Not Publish T EX
. R. A PP
. P. 47 140197F.U05 /Douglas S. Lang/ DOUGLAS S. LANG JUSTICE– 18

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
TERRANCE HENRY, Appellant No. 05

- 14

- 00197

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the 363rd Judicial District Court, Dallas County, Texas Trial Court Cause No. F

- 0959736

- W. Opinion delivered by Justice Lang. Justices Brown and Whitehill participating. Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The portion of the judge ment that states the “Plea to the Offense” was “Guilty” is modified to state “Not Guilty.” Also, the portion of the judgement that states the “Terms of the Plea Bargain” were “Open” is modified to state “N/A.”
As REFORMED , the judgment is AFFIRMED

. Judg ment entered this 10th day of July, 2015.