Affirmed and Memorandum Opinion filed April 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00015-CR

HERBERT RAY WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1133069

MEMORANDUM OPINION

Appellant Herbert Ray Wilson was convicted of capital murder and 

sentenced to life in prison with the possibility of parole. He challenges his sentence

on the ground that the denial of an individualized sentencing hearing violates the 

United States and Texas Constitutions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND

Appellant was convicted of capital murder and sentenced to life in prison 

without the possibility of parole. On original submission, appellant argued that (1) 

his confession was involuntary, and (2) a mandatory sentence of life without the 

possibility of parole violated the Eighth Amendment because he was a juvenile at 

the time of the offense. This court affirmed appellant’s conviction and sentence. 

Wilson v. State, 348 S.W.3d 32, 44 (Tex. App.—Houston [14th Dist.] 2011, pet. 

ref’d). On petition for writ of certiorari, the United States Supreme Court vacated 

the judgment and remanded the case for further consideration in light of Miller v. 

Alabama, 567 U.S. —, 132 S. Ct. 2455 (2012). Wilson v. Texas, — U.S. —, 133 S. 

Ct. 108, 108 (2012). In view of Miller, this court remanded the case to the trial 

court for a new punishment hearing. Wilson v. State, No. 14-09-01040-CR, 2012 

WL 6484718, at *2 (Tex. App.—Houston [14th Dist.] Dec. 13, 2012, no pet.) (not 

designated for publication). While the case was on remand, the legislature 

amended Texas Penal Code section 12.31(a) to read as follows:

(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 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.

Tex. Penal Code Ann. § 12.31(a) (West Supp. 2014).1 On December 12, 2013, the 

1 The 2013 Session Laws amending this section in response to Miller v. Alabama include 

a savings clause making it applicable to cases pending and on appeal when the provision went 

2

 
trial court sentenced appellant to confinement in the Institutional Division of the 

Texas Department of Criminal Justice for life with the possibility of parole in 40 

years. See Tex. Gov’t Code Ann. § 508.145(b) (West Supp. 2014). Appellant 

timely appealed. 

ANALYSIS

In four issues, appellant contends that Texas Penal Code section 12.31(a)(1) 

violates both the United States and Texas Constitutions because it does not provide 

for individualized sentencing hearings. We consider each issue in turn.

A. The denial of an individualized sentencing hearing did not violate the 

Eighth Amendment. 

In his first issue, appellant claims that under the Eighth Amendment, a 

juvenile offender is entitled to an individualized sentencing hearing before being 

assessed a mandatory sentence of life imprisonment with the possibility of parole. 

Under Miller, a sentencing scheme for juvenile offenders that mandates life in 

prison without the possibility of parole violates the Eighth Amendment. 132 S.Ct. 

at 2469. Noting that Miller did not forbid mandatory sentencing schemes per se, 

the Court of Criminal Appeals refused to extend the holding in Miller to situations 

identical to the one presented here: a mandatory sentence for a juvenile offender of 

life in prison with the possibility of parole. Lewis v. State, 428 S.W.3d 860, 863 

(Tex. Crim. App. 2014); see Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. 

App. 2014) (per curiam); Lewis v. State, 448 S.W.3d 138, 146 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d). The court held that juvenile offenders 

sentenced to life imprisonment with the possibility of parole are not entitled to 

into effect on July 22, 2013. Act of July 11, 2013, 83rd Leg., 2d C.S., ch. 2, § 3, 2013 Tex. Gen. 

Laws 5020, 5020–21; see Lewis v. State, 428 S.W.3d 860, 863 n.6 (Tex. Crim. App. 2014).

3

 
individualized sentencing hearings. Lewis, 428 S.W.3d at 864. We are bound in 

criminal cases to follow decisions of the Court of Criminal Appeals. Lewis, 448 

S.W.3d at 146. Appellant’s first issue is overruled

B. The denial of an individualized sentencing hearing did not violate the 

Due Process Clause.

In his second issue, appellant claims that under the Due Process Clause, a 

juvenile sentenced to life with the possibility of parole is entitled to an 

individualized sentencing hearing. A number of Texas Courts of Appeals, 

including this one, have determined mandatory sentencing statutes generally do not 

violate due process. Id. at 147; see e.g., Laird v. State, 933 S.W.2d 707, 715 (Tex. 

App.—Houston [14th Dist.] 1996, pet. ref’d) (mandatory life sentence for capital 

murder did not violate due process); Cardona v. State, 768 S.W.2d 823, 827 (Tex. 

App.—Houston [14th Dist.] 1989, no pet.) (mandatory sentence for delivery of 

cocaine did not violate due process). Because appellant offers no reason for 

deviating from this line of cases, we overrule his second issue. 

C. The denial of an individualized sentencing hearing did not violate the 

“cruel or unusual punishment” prohibition of article I section 13 of the 

Texas Constitution.

In his third issue, appellant claims that under the “cruel or unusual 

punishment” prohibition of article I section 13 of the Texas Constitution, a juvenile 

offender is entitled to an individualized sentencing hearing before being assessed a 

mandatory sentence of life imprisonment with the possibility of parole. See Tex. 

Const. art. I, § 13. Appellant asserts that rights under article I section 13 of the 

Texas Constitution should be interpreted more broadly than rights under the Eighth 

Amendment. In support of this proposition, appellant notes that article I section 13 

prohibits “cruel or unusual punishment” while the Eighth Amendment prohibits 

“cruel and unusual punishment.” The Court of Criminal Appeals has rejected the 

4
distinction appellant proposes. See Cantu v. State, 939 S.W.2d 627, 639 (Tex. 

Crim. App. 1997). Therefore, an analysis of this issue under the Texas Constitution 

is identical to an analysis under the United States Constitution. As we have 

previously determined that appellant is not entitled to an individualized sentencing 

hearing under the Eight Amendment, we overrule his third issue. 

D. The denial of an individualized sentencing hearing did not violate article 

I section 19’s “due course of law” guarantee.

In his fourth issue, appellant claims that under Texas Constitution article I 

section 19’s “due course of law” guarantee, a juvenile sentenced to life with the 

possibility of parole is entitled to an individualized sentencing hearing. We have 

already concluded that the denial of an individualized hearing did not violate 

appellant’s due process rights under the Fourteenth Amendment. Texas courts 

consistently have found no distinction in this context between the rights afforded 

by the “due course of law” clause of article I section 19 and those afforded by the 

Due Process Clause of the Fourteenth Amendment. See Lewis, 448 S.W.3d at 147. 

Appellant offers no discernable reason for finding a distinction in this case. 

Accordingly, we overrule this issue. 

CONCLUSION

Having overruled each of appellant’s issues on appeal, we affirm the trial 

court’s judgment.

/s/ Marc W. Brown

Justice

Panel consists of Justices Jamison, Busby, and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).

5