# /S7V-/V

No.PD-1574-14

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

CHRISTOPHER PENN Appellant

V.

THE STATE OF TEXAS Appellee ) P\ i 'PIMA v



# RECEIVEDIN -RBWWAIAPPCnLS 

## TO 172015 AbelAcosta.Cteit 

## F'LEDIN 

# COURTOFCRIMINALAPPEALS FEB 2Q2015 

## Review sought from the Court of Appeals AbelAcosta CI

IN THE COURT OF APPEALS
FOR THE FOURTEENTH DISTRICT OF TEXAS HOUSTON, TEXAS
Case No. 14-1300263-CR

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

On Appeal from Cause Number 1345118 From the 185th District Court of Harris County, Texas
Christophen Penn #1847503 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886 Pro-SeTABLE OF CONTESTS Table Of Contests i Index Of Authorities ii Statement Regarding Oral Argument .1
Statement Of The Case 2 Statement Of Procedural History 3 Grounds For7 Review 4 Ground One:The evidence is insufficient to support the in dictment and jury charge that Mr.Penn was robbing Reginald Williams and then shot Reginald Williams. In fact, the ev idence supports Mr.Penn robbing a different individual. Ground Two:Mr.Penn was denied due process because there was no evidence in the record that he was robbing Regin ald Williams. Ground Three:The automatic life sentence without parole :: for a conviction of capital murder violated Due Process and the individualized sentencing mandated by the United States Supreme Court. Ground Four:The court costs should be deleted because :' : : there is insufficient evidence to support the $504 cost. Argument 5 Prayer For Relief 21 Certificate Of Service 21 Appendix 22-INDEX OF AUTHORITIES
Cases: Adames v. State, 353 S.W.3d 854 (Tex.Crim.App. 2011) 8 Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000) 10 Byrd v. State? 336 S.W.3d 242 (Tex.Crim.App. 2011) 8 Duran v. State, 

### 363 S.W.3d 719 (Tex.App.-Houston [1st Dist.] 2011,pet.:

ref *d) 13 Eddings v. Oklahoma, 455 U.S. 104 (1982)... 11 Glasser v. United States, 315 U.S. 60, 80 (1942) 6 Graham v. Florida, 

### 506 U.S._, 130 S.Ct. 2011 (2010) 12,14,17 Harmelin v. Michigan, 501 U.S. 957 (1991)... .12,14 Heitman v. State, ' 815 S.W.2d 681 (Tex.Crim.App. 1991) .17 

### Jackson v. State, ."' 652 S.W.2d 415 (Tex.Crim.App. 1983) 7 Jackson v. Virginia, 443 U.S. 307 (1979) 6 Jelks v. State, 397'S.W.3d 759 (Tex.App.-Houston [14th Dist.] 2013, i pet. filed) 20 Johnson v. S.tate, 389 S.W.3d 513 (Tex.App.-Houston [14th Dist.] 2012, pet. , granted 18,19 Jones v. State, 944 S.W.2d 642(Tex.Crim.App. 1996) 6 Lockett v. Ohio, 438 U.S. 586 (1978) 11,14 Louis v. State, 393 S.W.3d 246 (Tex.Crim.App. 2012) 7,8 McCormick v. Unites States, 500 U.S. 257 (1991) 8,9
iiMiller v. Alabama, 132 S.Ct. 2455 (2012). 11,13,14,16,17 Oregon v. Hass, 420 U.S. 714 (1975) 17 Penry v. Lynaugh, 492 U.S. 302 (1989) 11 Perry v. Del Rio, 67 S.W.3d 85 (Tex. 2001). 19 Roper v. Simmons, 543 U.S. 551 (2005) 14 Smith v. Spisak, 558 U.S. 139 (2010)..... 11 Trop v. Dulles, 356 U.S, 86 (1958) 11 United States v. Casilla, 20 Fi3d 600 (5th Cir. 1994) 6 Walker v. State, 701 S.W.2d 2 (Tex.App.-Corpus Christi 1985, pet.::-: 

### ref 'd 6,7 Wilkerson v. State', A 347 S.W.3d 720 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd) 12 Woodson v. North Carolina, 428 U.S. 280 (1976) 10,11 Wooley v. State, 273 S.W.3d 260 (Tex. Crim. App. 2008) -...9

Constitutions and Statutes
U.S. CONST, amend. XIV 19 TEX. CONST. Art. "I, v§-; 13 16,17,18 TEX. CONST. Art. =-I, § 19 19 Tex. Penal Code Ann. § 12.31(,a)(2) 12,13,15,16,18 Tex. Penal Code § 12.42(c)(1) 13 Tex. Penal Code Ann. § 19.03 3

mSTATEMENT REGARDING ORAL ARGUMENT As relying on the record of evidence oral argument is not request 

### ed by Appellant, if the Court of Criminal Appeals of Austin, Texas deems necessary to have oral argument then do so.

1STATEMENT OF THE CASE
Mr.Penn was not arrested at the scene, until 1 year and 1 month later by detective. Mr.Penn was identified as the shooter of Regin ald Williams. He was never shown to have robbed or attempted to rob Mr.Williams. There is a fatal variance between what was pleaded and what was proven. There is no weapon entered into evidence or finger prints of Mr.Penn at the scene. The caliber of the bullet in the victim had never been identified and if so what was established. No answer was returned to the jury. (C.R. at 147). There was no autospy report of Mr.Williams entered into evidence to prove the cause of death. The evidence is legally insufficient to support the convict ion for capital murder. Futher, this variance denied Mr.Penn due process to have the State prove what was charged in the indictment.

Because of the statutory punishment scheme for capital murder, Mr. Penn was never allowed to present a picture of who he is. There was
no mitigation offered. No explanation. There was not a consideration
of the whole man.

There is not an official cost bill in the record. There are some page purporting to be a cost bill, but there is no evidence the trial court ever saw those pages. The evidence is insuufficient to support

c the court costs.

Under TvR.A.P. 66.3 (a)throu(f) reason for granting review should be applied for this Petition For Discertionary Review on Appellant pet ition. This Court, the Court Of Criminal Appeals now has jurisdict ion pursuant to T.R.A.P. 68.2.STATEMENT OF PROCEDURAL HISTORY This is an appeal from the felony offense of capital murder. (C.R. at 149). See Tex. Penal Code Ann. § 19.03. Mr.Penn pleaded not guil ty and a jury convicted him; he was automatically sentenced to life without parole in the Institutional Division of the Texas Department of Criminal Justice. (C.R. at 149). Timely notice of appeal was fil ed and granted. (C.R. at 154). The Brief For Appellant was filed in the Court Of Appeals For The Fourteenth District Of Texas Houston, Texas and Memorandum Opinion filed September 16,2014 was affirmed. Appellant's Petition For Discertionary Review is due on December 16, 2014. Appellant filed First Motion For Time Extension To File ProSe Petition For Discertionary Review was granted to February 17,2015GROUNDS FOR REVIEW Ground One:The evidence is insufficient to support the indictment and jury charge that Mr.Penn was robbing Reginald Williams and then shot Reginald Williams. In fact, the evidence supports Mr.Penn was robbing a different individual. Ground Two:Mr.Penn was denied due process because there was no evi dence in the record that he was robbing Reginald Williams. Ground Three:The automatic life sentence without parole for a con

### yiction of capital murder violated Due Process and the individual ized sentencing mandate by the United States Supreme Court. Ground FourrThe court costs should be deleted because there is in sufficient evidence to support the $504 cost.ARGUMENT Ground OnerThe evidence is insufficient to support the indictment and jury charge that MR.Penn was robbing Reginald Williams and then shot Reginald Williams. In fact, the evidence supports Mr.Penn was robbing a different individual. The indictment avers, in pertinent part: CHRISTOPHER LAMONT PENN, hereafter styled the Defendant, heretofore on or about March 11,2011, did then and there unlawfully, while in the course of commmitting and attempting to commit the ROBBERY of a REGINALD WILLIAMS by SHOOTING REGINALD WILLIAMS WITH A DEADLY WEAP ON, NAMELY A FIREARM. The jury charge tracked the language of the indictment and authoriz ed the jury to convict: Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of March, 2011, in HarrisiCounty, Texas, the defendant, Christopher Lamont Penn, did then anr there unlawfully, while in the course of committing or attempting to commit the robbery of Reginald Williams, intentionally cause the death of Reginald Will iams by shooting Reginald Williams with a deadly weapon, namely a firearm. (C.R. at 138).

It was Markquis who stated that Mr.Penn entered the apartment and 

### grabbed him and was asking "Where is it at?" (3 R.R. at 67). Markquis's brother had the drugs. (3 R.R. at 68). There was never testimony from Markquis that Mr.Penn was trying to rob Reginald Williams. Iesha Fletcher testified that Mr.Penn came in an demanded drugs and then pulled a gun on Markquis. (3 R.R. at 230-32). Anthony Smith testif ied the plan all along was for he and Mr.Penn to rob "Black,:" (Markquis). (4 R.R. at 82-83.

The evidence was overwhelming that the persons robbed were Markquis Richard, and possibly his brother Malquan. The theory presented by the State was that Mr.Penn and his brother deliberately chose that 

### apartment to steal the drugs and money of the Richard brother. Mr.Penn 

### and his brother had been to the apartment earlier in the day and th-en specifically returned to rob the Richard brothers. While Regin ald Williams was present in the house

- there was not one iota of evidence ever presented that Mr.Penn robbed or attempted to rob Re ginald Williams.

In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt, and also would have found against appellant on any defensive issue beyond a 

### reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. See Jones v. State, 944 S. W.2d 642, 647 (Tex.Crim.App.1996). Likewise, reconciliation of con flicts in the evidence is within the exclusive province of the jury.
See id. All reasonable inferences from the evidence are construed in 

### favor of the verdict. Glasser v. United States, 315 U.S. 60, 80 (19- 

### 42); United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994).

In Walker v. State, a conviction for involuntary manslaughter was reversed on insufficient evidence because the defendant had been con0 victed based upon am allegation of "excessive rate of speed and re

### lessness." Walker v. State, 701 S.W.2d 2, 3 (Tex.App.-Corpus Christi 1985, pet. ref'd). The Court reversed, explained "we know that terr 

### ible collision occurred. We have a "strong suspicion" that appellant 

### was attempting to negotiate a curve at a higher rate of speed than 

### was safe, but this has not been established by evidence." Id., 701 S.W.2d at 3. Interestingly, on rehearing, the Court noted that the

'State reminded the G'our't t;here Was 'evidence of alcohol which had

### been alleged in one count in the case. Id., 701 S.W.2d at 4. How 

### ever, the conviction and appeal involved the State's prosecution upon the count alleging excessive speed and recklessness, neces 

### sitating a reversal for insufficient evidence. Id.



### In Jackson v. State, the defendant was convicted of causing the i 

### death of her daughter by striking her on the head with her elbows. 

### Jackson v. State, 652 S.W.2d 415, 416 (Tex.Crim.App. 1983). The State's case rested upon the admission of the defendant that she 

### had hit her child upon the head twice before she died and the medi cal examiner's testimony regarding different injuries to the child. 

### Id., 652 S.W.2d at 416-17, 419. The Court of Criminal Appeals rever sed the conviction as legally insufficient because the doctor could 

### not determine which injury had caused the death and further, "the State failed to prove that the elbow blows confessed to by appellant 

### caused the hemorrhage which ultimately caused the child's death." Id., 652 S.W.2d at 419.



### The Court of Criminal Appeals affirmed the reversal of a non-death 

### capital murder conviction because the jury could not have inferred from the totality of the circumstantial evidence viewed in a light most favorable to its verdict that the defendant intended to cause 

### the death of a child. Louis v. State, 393 S.W.3d 246, 251-52 (Tex. 

## Crim.App. 2012). In Louis, the defendant had beaten the child, but then left for work and unbeknownst to him, his wife continued with 

### the abuse. Id. One of the rationales for the court's decision was 

### "the absence of any evidence showing that the child could or would have died from the injuries caused by appellant alone-the jury cou ld not have reasonable inferred that appellant intended to cause thedeath of the child." Id. Similarly, there is evidence of the murder. There is evidence of a robbery of Markquis and his brother. But there was no evidence of the robbery or attempted robbery of Reginald Williams. He was a tra gic bystander to the robbery.
Fatal Variance

"A 'variance' occurs whenever there is a discrepancy between the allegations in the indictment and the proof offered at trial. Byrd
v. State, 336 S.W.3d 242, 246 (Tex.Crim.App. 2011). "A conviction that contains a material variance that fails to give the defendant sufficient notice or would not bar a second prosecution for the same murder requires reversal, even when the evidence is otherwise legal ly sufficient to support the conviction." Byrd. 336 S.W.3d at 248.

The conviction for capital murder fails because the evidence is in sufficient to prove Reginald Williams was the victim of a robbery or attempted robbery. Ground TwotMr.Penn was denied due process because there was no evidence in the record that he was robbing Reginald Will iams. While there may have been evidence Mr.Penn robbed Markquis or his brother there was no evidence Reginald Williams was robbed. Mr.Penn was deprived of due process because of the failure of proof. In A

### dames v. State, 353 S.W.3d 854, 859-60 (Tex.Crim.App. 2011) cert, denied, 132 S.Ct. 1763, 182 L.Ed. 2d 533 (2012), the Court of Crim inal Appeals explained it was error to sustain a conviction based upon a charge for which the defendant was not indicted for: The McCormick/Dunn/Cole rule applies only when a defendant is con victed on a charge that was neither alleged in an indictment nor presented to the jury, as the defendant is then not given suffici ent notice as to the" specific charge. "It is as much a violation

v nipii**rTjiii*vmrnzt'!!t*rr*t'rtf,??*s**'r^]' T>i'itfYQyF*tyv,\*vrWnr*TrR]t@*'* "Hfc:of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict :ihim upon a charge that was never made." Here, appellant was .given notice in the indictment that he was charge with the offense of capital murder. The State presented evidence of that offense, and the jury received instructions on that offense, albeit imperfect as applied to the facts of this case. This is a case of jury-char ge error distinct from an evidentiary insufficiency; appellant was convicted on a theory, guilt as a party, that was not presented to the jury, as opposed to a charge for which he was never tried. Mr.Penn was not indicted for the robbery or attempted robbery of he was charge with the attempted robbery of Reginald Williams. While the evidence may be sufficient as to Markquis-- it is wholly insuff icient to Reginald Williams.

"Appellate courts are not permitted to affirm convictions on any th eory they please simply because the facts necessary to support the theory were presented to the jury." Wooley v. State, 273 S.W.3d 260, 

### 271-72 (Tex. Crim.App. 2008), citing McCormick v. United States, 500 U.S. 257, 270, n. 8 (1991).

These is sufficient evidence to support the conviction. Mr.Penn was denied due process and the case should be reversed and an acquittal
rendered.Ground Three:The automatic life sentence without parole for a conviction of capital murder violated Due Process and the in dividualized sentencing mandated by the United States Supreme Court. During Mr.Penn's testimony at the guilty/innocence phase, he expl ained a tiny bit of who he was: We just never had the family that, you know, some people may have you know. It just - it wasn't ever like that, you know. I didn't - I never got what I wanted for Christmas, you know, I never was that child but, you know, it is what it is. I just suck it up. I'm my own man. (4 R.R. at 159-60).

There was no objection to the mandatory sentencing scheme. For this Court to consider the issue, there would have to be fundamental err or necessitating no objection for preservation. Blue v. State, 41 S. 

### W.3d 129, 131 (Tex.Crim.App. 2000).

No punishment evidence was presented in Mr.Penn's case because of the automatic nature of the punishment statute. Neither the judge nor jury heard about who John Wesley Smith - Also known as Christo pher Penn - was before he was sentenced toL/life Imprisonment with out parole.

Factors that mitigate an individual defendant's moral culpability "ste[m] from the diverse frailies of humankind." Woodson v. North Carolina, 428 U.S. 280, 304 (1976)(plurality opinion of Stewart, Powell, and Stevens,JJ.). As the Supreme Court reasoned: "For the determination of sentences, justice generally requires

consideration of more than the particular, acts by which the;, crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Consideration of both the off ender and the offense in order to arrive at a just and appro priate sentence has been viewed as a progressive and humaniz 

### ing development. (Internal citations omitted). Woodson, 428 U.S. at 304. Consideration of both the offender and

10the offense in order to arrive at a just and appropriate sentence 

### has been viewed as a progressive and humanizing development. Wood son, 428 U.S. at 304. There was no consideration of the "offender" 

### in order to arrive at a just and appropriate sentence. None. The Constitutional Importance of Mitigating Evidence



### The denial of an opportunity to present evidence and argument in favor of mitigation must be considered harmful, there is a reason 

### able possibility that the jury would have assessed a punishment less than life without parole. Further, it is not possible to know what mitigating evidence would have been offered, so the Court cannotconclude beyond a reasonable doubt that the inability to present mitigation was harmless.



### Eighth Amendment jurisprudence is guided by "the evolving stand 

### ards of decency that mark the progress of a maturing society." Mill
### v. Alabama, 132 S.Ct. 2455, 2463 (2012), quoting Trop v. Dulles, 356 

### U.S. 86, 101 (1958). In a constitutional system of evolving stand ards, it is legitimate to argue that a well-founded mitigation doc 

### trine could 'evolve' by expanding from death-penalty law and juven ile law into adult non-death cases. 

### ".In the context of death-penalty cases, it has long b n the rule 

### that a judge or jury must have a way to consider mitigating circum stances when assessing punishment. That rule has been established in 

### a line of c-ses that includes Lockett v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), Penry v. Lynaugh, 492 U.S. 

### 302 (1989), and Smith v. Spisak, 558 U.S. 139 (2010). As the Court in Eddings put it, a sentencing jury or judge should not be "pre 

### cluded from considering, as a mitigating factor, any aspect of a

11defendant's character and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death. "Odv

### iously, if a. statute made the death penalty automatic,, with no op portunity for the fact-finder to consider mitigating evidence, such

a statue would be unconstitutional.



### The Supreme Court declined more than 20 years ago to extend its dea 

### th-penalty jurisprudence regarding mitigation evidence to other typ es of cases. See Harmelin v. Michigan, 501 U.S. 957 (1991). In Harme

### lin, as in this case, a statute made life without parole mandatory. The Supreme Court has not considered the merits of that issue then, but in the wake of Hamelin, Texas courts consistently have declined 

### to hold that the Texas "automatic life" provision, as the sole alter 

### native to the death penalty following capital murder convictions, is unconstitutional. Recent c° es reaching that conclusion include Wilk 

### erson v. State, 347 S.W.3d 720 (Tex.App.-Houston [14th Dist.] 2011, pet., ref'd) and several memorandum opinions.



### In the context of juvenile justice, however, the law has,-in fact, evolved. In Graham v. Florida, 560 U.S._, 130 S.Ct. 2011 (2010), the Supreme Court applied an Eighth Amendment analysis to a juvenile's punishment for a non-homicide offense, and found that a life sentence 

### was categorically excessive. That was inconsistent with another por tion of Harmelin, and it laid the foundation for a re-examination of Part IV of Harmelin, and protion of the opinion concerned with the 

### preclusive effect of "life without parole" on the consideration of mitigating circumstances. Cases like Wilkerson and its progeny relied on the distinction between the two analytical thread in Harmelin to find that the mandatory sentence dictated by Tex. Penal Code Ann. §

1212.31(a)(2) did not violate Eighth Amendment. A year after the Graham decision, a panel of this Court held in June of 2011 that a mandatory life sentence for an adult convicted of ag gravated sexual assault of a child and indecency with a child, under Tex. Penal Code § 12.42(c)(1) did not violate the U.S. of Texas Con 

### stitutions. See Duran v. State, 363 S.W.3d 719, 724 (Tex.App.-Houst
on [1st Dist] 2011, pet. ref'd). However, the case did not involve 

### mandatory life without parole, as this case does. It also did not involve a finding of guilt that possibly was based on the law of -; 

### parties, rather than the defendant's own conduct, as this case does. 

### Further, Duran was decided before the Supreme Court issued its opinion in Miller v. Alabama, which demonstrated an even further deve lopment of the law on this issue than had already ocurred before th is Court opinion in Duran. Like the Supreme Court, this Court should recognize that the standards for what constitutes cruel and unusual punishment have continued to evolve. The Decision in Miller v. Alabama

In Miller v. Alabama, The Supreme Court held that life without pa 

### role, as applied to a juvenile charge with capital murder, "implici. ^ 

### ate[s] two strands of precedent reflecting our concern with proport 

### ionate punishment." The first strand consisted of cases that "adopt ed categorical bans on sentencing practices based on mismatches bet
ween the culpability of a class of offenders and the severity of the 

### penalty." The second strand consisted of "cases [in which] we have prohibited mandatory imposition of capital punishment, requiring th 

### at sentencing authorities consider the chatacteristics of a defend ant and the details of his offense before sentencing him to death."

13

r^»^'Jim^.'^lWAvni'^*fWr^>^M*Ara.TO^'>^ ••».- "trw tmJVin'rxli^ll'.i'As!hm~^3^r^Trr--rrrIt was "the confluence of these two lines of precedent," Miller de clared, that "lead to the conclusion that mandatory life-without-pa

### role sentences for juveniles violated the Eighth Amendment." Miller,

132 S.Ct. at 2464.

The majority opinion did not explicitly overrule Part IV of Harme lin. Instead, it said that Harmelin was distinguishable because Harme lin did not deal with a child, and conclude that "our ruling...nei ther overrules nor undermines nor conflicts with Harmelin." Id. at
2470.



### The holding of Miller does not conflict with Harmelin, but the rea soning of Miller does. The dissent by Justice Thomas accurately summ 

### ed up the effect: "The Court now uses [Roper v. Simmons, 543 U.S. 551 

### (2005)] and Graham to jettison Harmelin's clear distinction between capital and noncapital cases and to apply the former to noncapital 

### juvenile offenders." Id. at 2486. In short, standards have now "ev 

### olved" so that the death penalty is not a sine qua for having an Eigh th Amendment right to consideration of mitigating circumstances at sentencing.

On the surface, it might seem that life without parole does serve the penological purpose of retribution, but there are two problems with that conclusion. First cases from Lockett to Graham support the principle that the degree of retribution that is appropriate may de pend on whether there are mitigating factors. An automatic assess ment of life without parole deprives both the sentencing court and 

### the parole authorities of the information necessary to make a proper decision as to how much imprisonment is needed to serve the purpose 

### of retribution. It is one thing for a judge or jury to hear all of 

### mitigating evidence and then conclude that, despite any mitigating

14factors, life without parole is appropriate. It is different when, as in this cause, the sentence is pronounced as soon as the guilty verd ict is received.

Second, the incremental retribution which results from life without parole is imposed at the end of the sentence, i.e. in the period after forty years elapses (when parole eligibility, though not guaranteed parole, would have occurred under the old law). At that point, retri bution is being inflicted on an old man or woman, perhaps an old man

or woman who never intended to kill anyone. The likelihood that a per
son released in his upper fifties, sixties or seventies will be a thr eat to society is so very small that to insist than an elderly person die in prison for an offense many decades earlier is unsupportable as
a public-safety measure. Finally, Section 12.31(a)(2), the mandatory life without parole st atute creates a logistical problem, even if parole law were to be ch anged in the future so that the possibility of parole for inmates like Mr.Penn was restored. Much of the mitigation evidence that would begermane to parole review might not be available many years in the future. For example, information about a defendant's childhood problems usually must come from parents or other persons who were adults when the defendant was a child. Those potential witnesses are likely to be available many years in the future. Similarly, availability of many _, records diminishes over time. Due to the judicial treatment of a mandatory life sentence as an automatic sentence, trial courts are not porviding an adequate record of possibly mitigating circumstances, either for later judicial review or later parole review.

The Texas Legislature's move to a mandatory sentence of Life without parole under which mitigating circumstances can never be considered,

15does not represent an "evolving standard of decency," but rather a step backwards to the harsh and simplistic penal theories of the past. This Court should hold that Section 12.31(a)(2) is unconstitutional be
cause there is no mechanism for consideration•of mitigating circumst ances in a verdict, no mechanism for recording mitigating evidence for later consideration, and no opportunity for parole authorities to con 

### sider mitigating evidence (or other information) in deciding whether a person is a suitable candidate for parole.



### The right to be free from excessive sanctions "flow from the basic precept of justice that punishment for crime should be graduated and proportioned to both the offender and the offense." Miller, 132 S.Ct. 

### at 2453 (internal quotations omitted). Section 12.31(a) should be de clared unconstitutional because it prohibits the proportioning of pun ishment to an offender. Even if this Court does not find the statute to be defective, at least the "without parole" provision should be struck down. This would provide the Board of Pardons and Parole the opportunity to consider mitigating evidence, which is considerably better than the situation created by the present statute.

The automatic punishment of life without parole violates the Texas Constitution because there is no vehicle for consideration of mitigat ing evidence to justify a less severe sentence, either by jury or by parole authorities.

Texas Constitutional Law

The Texas Constitutional counterpart to the Eight Amendment, TEX.T--. CONST.Art. I, § 13, also is violated by a mandatory life sentence without parole. The rationale for this argument, i.e., the inability of the defendant to present mitigating evidence, is the same as thepreceding Eighth Amendment argument. This Court should hold that Sec16tion 12.31(a)(2) violates TEX.COST.Art. I, § 13. Federal constitutional law merely provides the "floor" for a defend ant's rights. State law may provide greater protection. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991), pointed out that "a state is free as a matter of its own law to impose greater restrictions on police activity than those the Supreme Court holds to be necessary up on federal constitutional standards." Id. at 683, citing Oregon v. Hass, 420 U.S. 714 (1975). What was said in Heitman about "police" (ex 

### ecutive department) action also applies to legislative action, i.e., the passage of laws that undermine constitutional safeguards.

Heitman recognized that federal constitutional case law may be persu asive as to Texas constitutional law, but is not controlling. Just as Texas courts can consider Harmelin, but are not limited by it, in con struing Texas constitutional law, they also can consider Graham and Miller. That does not merely mean following the holding of Supreme Court cases, but also considering their reasoning. Nothing prohibits a Texas court from taking the reasoning in Miller and holding that it applies to the Texas Constitution.

The text of Article I, Section 13. itself provides a reason for a
more expansive interpretation. The section reads in pertinent part: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted..." The Texas Constitution 

### refers to "cruel or unusual"p,unishment, rather than "cruel and unus ual" punishment, as the Eight Amendment does. The use of "or" in the Texas Constitution means an automatic life imprisonment in unconstitu tional if it is either cruel or unusual. Likewise, it is unusual for a statute to impose a harsh punishment automatically. In the entire 

### Penal Code, only two categories of offenders capital murder defendant

17in cases where the death penalty is waived, and certain repeat sex of fender-face automatic life sentences.

Furhtermore, the particularly strong respect in Texas for trial by jury gives a reason for interpreting Article I. § 13 more broadly than Harmelin interpreted the Eighth Amendment. Texas is one of the few states with jury sentencing. What an irony that the defendant who needs it most - a capital murder defendant - is denied one of the main benefits of jury sentencing, i.e., the consideration of possibly miti gating circumstances.

The harm analysis is the same as the analysis for the federal consti tutional challenge, which is incorporated here by reference. As with 

### federal constitutional error, Mr.Penn asks that Section 12.31(a) be struck down entirely, with a remand for retrial for murder in this
cause. At the very least, the "without parole" provision of the statue
should be nullified. Ground Four:The court costs should be deleted because there is insufficient evid nc to support the $504 cost. In Johnson v. State, 389 S.W.3d 513 (Tex.App.-Houston [14th Dist.] 2012, pet.granted), this Court considered this exact issue. In that
case, Johnson pled guilty to aggravated robbery and was sentence to a prison sentence. The judgement in his case included $234.00 in court costs. 389 S.W.3d at 515. However, there was no bill of costs in the record. 389 S.W.3d at 515. In ordering that the judgement be modified to delete the assessment of court costs, the Court wrote: In the face of a sufficiency challenge, an order to supplement the record, and a complete lack of evidence supporting the tr 

### ial court's assessment of costs, we will not presume the assesment of costs was accurate. See Armstrong, 340 S.W.3d at 

### 767 (remanding for consideration of sufficiency of the evid ence to support costs assessment).

18Id., 5. 

### The Fourteenth Amendment of the United States Constitution guards against deprivation of life, liberty, or property by the State with out due process of law. U.S.CONST.amend.XIV.Article I, Section 19 of 

### the Texas Constitution requires due course of law. TEX.CONST.art. I, § 19; pPerry v. Del Rio, 67 S.W3d 85, 92 (Tex.2001). At a minimum, due coure requires notice and an opportunity to be heard, at a mean ingful time and in a meaningful manner. Perry, 67 S.W.3d at 92. This Court has previous rejected records that were not before the trial court: Regardless, there is no indication that this printout was ever 

### brought to the attention of the judge. Cf. Chambers v. State, 

### 149 Tex.Crim. 400, 194 S.W.2d 774, 775 (1946) (holding that appellate court would not consider ex parte documents that 

### were not filed in the trial court); Lamb v. State, 931 S.W.2d 

### 611, 613 (Tex.App.-Amarillo 1996, pet, ref'd) (holding items that had been tendered after judgement was tendered, and were neither filed nor offered as proof in court below, would not be considered on appeal). 

### Johnson, 389 S.W.3d at 515, n. 1. This new "cost bill" oddly has no date for the creation of it. A review of the Talbe of Contents of the 

### Clerk's record shows a filed date for every filed document except this J.I.M.S. Cost bill. (C.R. at table of contents). The certified date on the document is dated 6 days after the judgement and has a 

### signature line with what looks to be the name of "Kathy Tidele." (C. 

### R. at 153). Writing for this Court, Justice Busby explained why that sort of signature is unacceptable: While the computer screen printout bears a dated signature, the individual who signed the document is not identified. Nothing in the record shows whether the person who signed the printout is an officer who charged the cost or. an offr: --: 

### icer who is entitled to receive payment for the cost. Fur ther, there is no evidence in the record that this comput er screen printout was presented to the trial judge before he included the specific dollar amount in the judgement. 

### Therefore, we cannot consider the computer screen printout

19as an appropriate bill of costs in this case. Jelks v. State, 397 S.W.3d 759, 760 (Tex.App.-Houston [14th Dist.] 

### 2013, pet. filed). This simply is not a cost bill as contemplated and required by law. The evidence is insufficient and the court
costs should be struck.

20PRAYER FOR RELIEF Mr.Penn prays this Court reverse the conviction and acquit or al ternatively remand for a new trial. He also prays the Court delete
the court costs because there is insufficient evidence.

Respectfully submitted,

cespec Christopher Penn Appellant Pro-Se TDCJ-ID No.1847503 Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886

CERTIFICATE OF SERVICE 

### I certify that I provided a copy of the foregoing Appellant's Pe tition For Discretionary Review to the Harris County District At torney by hand delivery to the Sixth Floor at 1201 Franklin Street, 

### Harris County District Attorneys Office on this \y day of Febr uary, 201.5.

21 

# ft Clwristopher Penn Appellant Pro-Se TDCJ-ID No.1847503 Michael Unit 2664 FM 2054 Tennessee Colony, TX 75886APPENDIX

22AffirmedandMemorandum Opinionfiled September 16, 2014.

In The 

### Jfrmrtmttl} OInurt ofAppeals

NO. 14-13-00263-CR
CHRISTOPHERLAMONTPENN, Appellant
V. THESTATE OFTEXAS, Appellee


### OnAppealfrom the 185thDistrictCourt Harris County, Texas Trial Court Cause No. 1345118

MEMORANDUM OPINION 

## A juryconvictedappellantChristopherLamontPennofcapitalmurder1 and the trial court assessed a mandatory punishment at life imprisonment without 

### parole.2 Appellantchallenges his conviction in four issues, arguingthat (1) the evidence is legally insufficient to support his capital murder conviction because the
1SeeTex.PenalCodeAnn. § 19.03(a)(2)(VernonSupp.2014). 2SeeTex.PenalCodeAnn. § 12.31(a)(2)(VernonSupp.2014).

### State did notestablish that appellantrobbed orattemptedtorob thecomplainant Reginald Williams; (2). appellant was denied due process because there is no 

### evidence to support a finding that appellant robbed the complainant; (3) his mandatory punishment of life imprisonment without paroleviolates the United States and Texas Constitutions because it does not allow consideration of 

### mitigating evidence; and (4) the court costs should be deleted because the record does notcontainaproperbillofcosts. We affirm. Background 

### On March 11,2011,appellant toldhisbrother Anthony Smith that he needed 

### money and asked about a drug dealer Smithknew. The drug dealer, Markquis Richard, previously had sold marijuana to Smith. Appellant conveyed to Smith that he intended to go to Richard's apartment to rob him ofdrugs and money. Appellant threatened to make Smith stop living in appellant's home ifSmith did 

### not help with the robbery. Appellantand Smith then drove toRichard's apartment; theyplannedto rob Richardonlyifhe was alone. Appellant was armed with a knife when he and Smith arrived at Richard's apartment. Richard's brotherMalquan King was presentin the apartment; Ieasha Fletcher, two other women, and complainant Reginald Williams also were in 

### Richard's apartment helping Richard pack to move the next day. Appellant and SmithremainedinRichard's apartmentbriefly, then left so appellantcouldretrieve his gun. Appellant, armed with his gun, and Smith later returned to Richard's 

### apartment while Richard's brother and friends still were at the apartment. Smith asked to buy marijuana. As Richard turned to tell his brother to retrieve the marijuana, appellant grabbed Richard and pointed the gun at Richard's face. Appellanttold Richard, "Youknow whattime it is. Lay itdown," whichRichard

2

### understoodto mean appellant was "fixing to rob"him. Appellant laidRichardon 

### theground, pointedandwaivedthegunateveryonepresentin theapartment, and 

### asked repeatedly, "[W]here is it at?" King pulled a bag out ofhis pocket containingasmallamountofmarijuanaandstatedthattheydid nothaveanymore. At this point, the complainant jumped up from a nearby bed and ran toward 

### abedroom. Appellant fired his gun at thecomplainant, chased thecomplainant into thebedroom, and fired again; the complainantthen jumped out of a window. 

### Richardgot up and ran out of theapartmenttofinda gun or gethelp. Smith took the bag of marijuana from King, and then left the apartment withappellant. 

### Fletcher ranupstairs to herapartment; shefound the complainant close by on the ground screaming for help. The complainant soon died from a gunshot wound to the torso. 

### Appellant was charged with capital murder; the indictment alleged that appellantintentionallycausedthe death ofthe complainant "whilein the course of 

### committing and attempting to commit" the robbery ofthe complainant. Ajury found appellant guilty ofcapital murder, and the trial court imposed a mandatory sentenceoflifeimprisonmentwithoutparole. Appellantfiled a timely appeal. Analysis I. SufficiencyoftheEvidence Appellant argues in his first issue thatthe evidence is legallyinsufficientto support his capital murder conviction because the State did not establish that 

### appellant robbed or attempted to rob the complainant. According to appellant's brief, "[T]heevidence supports [thatappellant] was robbing adifferentindividual" whenhe shotthe complainant.

### When reviewing the sufficiencyofthe evidence, we view allofthe evidence 

### in the light mostfavorable to the verdict and determine whether, based on that evidence and anyreasonableinferences from it, any rationalfactfindercould have 

### foundtheelements of theoffensebeyond areasonable doubt. Gearv. State, 340 

### S.W.3d 743, 746 (Tex. Crim. App. 2011). In making this review, anappellate court considers all evidence in the record, whether it was admissible or 

### inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013). This standard ofreview applies to cases involving both direct and circumstantial 

### evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing the guilt ofan actor, and the standard ofreview on appeal is the same for both direct and circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). 

### Thejuryis the exclusivejudgeofthe credibilityofwitnesses and theweight ofthe evidence. SeeIsassiv. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We deferto thejury's responsibilityto fairlyresolve conflicts in the evidence, and

we draw all reasonable inferences from the evidence in favor ofthe verdict. Id. 

### Therefore, the testimony of a single eyewitness can be enough to support a conviction. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 

### 2004), aff'd,206 S.W.3d 620 (Tex. Crim. App. 2006). In conducting asufficiency review, we do not engage in a second evaluation ofthe weight and credibility of the evidence, butonlyensurethejuryreached arational decision. Youngv. State, 

### 358 S.W.3d790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet.refd). 

### Apersoncommitsthe offense ofcapital murderifthe personintentionallyor knowingly causes the death of an individual in the course of committing or attempting to commitrobbery. See Tex. Penal Code Ann. § 19.02(a)(2) (Vernon

### 2011), § 19.03(a)(2) (Vernon Supp. 2014). 

### Aperson commits robbery if, in thecourse ofcommitting theft andwith 

### intent to obtain ormaintain control ofthe property, the person intentionally, knowingly, orrecklessly (1) causes bodilyinjury to another; or (2) threatens or places another in fear ofimminent bodily injury or death. SeeTex. Penal Code Ann. §29.02(a) (Vernon2011). 

### A person commits theft ifhe appropriates property without the owner's 

### consent and with intent to deprive the owner of theproperty. SeeTex. Penal Code Ann. §31.03(a), (b)(1) (Vernon Supp.2014). "Tn the course ofcommittingtheft' means conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission oftheft." Tex. Penal Code Ann. § 29.01(1) (Vernon2011). 

### Appellant does not challenge the sufficiency of the evidence establishing that he killed the complainant and robbed Markquis Richard and Malquan King. Appellant concedes in his briefthat the "evidence was overwhelming that the persons robbed were Markquis Richard, and possibly his brother Malquan.

. . . Thereis evidenceofarobberyofMarkquis and hisbrother." Appellant instead challenges the sufficiency ofthe evidence to support his capital murder conviction by contending there is no evidence that he killed the 

### complainant while robbing or attempting to rob the complainant. Appellant 

### argues that the complainantwas only a "bystander" to the robbery ofRichard and King. Appellant contends he was not stealing or attempting to steal from the complainant when he shot the complainant; therefore, appellant contends he did not rob orattemptto rob the complainant. In essence, appellantargues thatthe victimofthe theftand the victimofthe

### robberymust beidentical, andtheindividualassaultedin thecourseofcommitting 

### theftmustbethe intendedvictimofthe theftinordertocommitarobbery. We disagree. 

### Theft is the underlying offense for a robbery. ExparteHawkins, 6 S.W.3d 554, 560 (Tex. Crim. App. 1999). Robbery is a form ofassault. Id.; Bostonv. State, 373 S.W.3d 832, 839 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 

### (Tex. Crim. App. 2013). "[T]he offenseofrobbery includes any violence in the 

### course ofeffectuating [a] theft as well as any violence while inimmediate flight from the scene ofthe theft." Lightnerv. State, 535 S.W.2d 176, 177 (Tex. Crim. App. 1976)(affirming aggravated robbery convictionofdefendant who assaulted a policeofficerafterstealingmoneyfrom acashregister). To prove robbery, the State is not required to prove that the complainant's property was taken. See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a). "No completedtheft is required for the proscribed conductto constitute the offense of 

### robbery." White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984); Sweedv. State, 321 S.W.3d 42, 47 (Tex. App.—Houston [1st Dist.] 2010), rev'd on other 

### grounds, 351 S.W.3d 63 (Tex. Crim. App. 2011); Camachov. State, 825 S.W.2d 168, 170 (Tex. App.—FortWorth 1992, pet. refd). "Noris it necessary that the victim ofthe theft or attempted theft and the victim ofthe robbery be the same." White, 671 S.W.2d at 41-42 (affirming aggravatedrobbery conviction ofgetaway driverwho shotpursuingbystanderin orderto free companionwho had attempted 

### to steal a purse); Sweed, 321 S.W.3d at 47 (affirming aggravated robbery conviction and holding appellant was not entitled to a lesser-included instruction on theft); Camacho, 825 S.W.2d at 170 (affirming conviction oftwo counts of 

### aggravated robbery where defendant threatened one employee while stealing money from him and then threatened another employee before driving away in acar). 

### There is ample evidence in this case that appellant and Smith went to 

### Richard's apartmentintendingtostealdrugs andmoneyfromRichard. Appellant grabbedRichard and pointed a gun at Richard'sface. AppellantlaidRichard on the ground, pointed and waived a gun ateveryone present in the apartment, and 

### asked repeatedly, "[W]here is it at?" Richard's brother King thenpulled a bag with a small amountofmarijuana outofhispocket. The complainant, who was 

### among thosepresentin theapartment,jumped upfrom a nearby bed at that point and ran toward a bedroom. Appellant immediately fired his gun at the complainant; chased the complainant into the bedroom; and fired at the 

### complainant again, striking the complainant in the torso and killing him. Smith took the bag ofmarijuana from King and then left the apartment together with appellant. 

### This evidence is sufficient for a reasonablejury to conclude that appellant 

### intentionally, caused the complainant's death while in the course ofcommitting the robbery ofthe complainant. This evidence is sufficientbecause the victimofthe theftand the victimofthe robberyneednotbe the same. See White, 671 S.W.2dat 41-42; Sweed, 321 S.W.3d at 47; Camacho, 825 S.W.2d at 170. Appellant committedrobberybyintentionallycausingbodilyinjuryto the complainantin the
course ofcommitting the theft ofRichard's marijuana and with intent to obtain control ofthe marijuana. Accordingly, we reject appellant's contention that the evidence in this case 

### is legally insufficientto supporthis capital murder conviction on the ground that there is no evidence that he killed the complainant in the course ofrobbing or 

### attempting to rob the complainant. Thus, we conclude that the evidence is legally sufficientto supportappellant's capitalmurderconviction.We overrule appellant's firstissue.
II. Due Process 

### Appellant contends in his second issue that he was "denied due process becausetherewasnoevidencein therecordthat he wasrobbing" thecomplainant. AppellantcitesAdamesv. State,353 S.W.3d854, 859-60(Tex. Crim.App. 2011), for this proposition: "[T]he Court of Criminal Appeals explained it was error to sustain a conviction based upon a charge for which the defendant was not 

### indicted." Appellant also states that he "was not indicted for the robbery or attempted robbery of[Richard] - he was charged with the attempted robbery of [the complainant]. While the evidence may be sufficient as to [Richard] - it is wholly insufficient [a]s to [the complainant]." Appellant concludes his argument by stating that "[t]here is insufficient evidence to support the conviction. [Appellant] was denied due process and the case should be reversed and an acquittalrendered." We rejectappellant's contention. First, appellantwas notconvicted "based upon a charge for which [he] was not indicted." Appellant was indicted for intentionally causing the death of the complainant while in the course of committing and attempting to commitrobbery; and the charge essentiallytracked the indictmentlanguage. Second, we alreadyhave concludedthat the evidence is 

### legally sufficient to support the jury's finding that appellant robbed the complainantand thus is sufficientto supportappellant's capitalmurderconviction. Accordingly, thereis no dueprocessviolationas assertedby appellant. Weoverruleappellant's secondissue.III. Punishment 

### Appellant argues inhis third issue that the automatic punishment oflife without parole violates the Eighth Amendment ofthe United States Constitution 

### andarticle 1, section 13 oftheTexas Constitutionbecausethe sentencing scheme provided noopportunityfor theconsiderationofmitigatingevidence. The Texas Rules ofAppellateProcedure require a party to preserve error for 

### appellatereviewbydemonstratingtheerroron therecord. Tex.R.App.P.33.1(a); Clark v. State, 305 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 365 S.W.3d 333 (Tex. Crim. App. 2012). The party must make the 

### complaint in a timely manner and state the grounds for the ruling that the complaining party seeks from the trial court with sufficient specificity to make the trial court aware ofthe complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). In raising the complaint on appeal, the 

### party must ensure the issue is the same as the complaint or objection made during trial. Clark, 305 S.W.3d at 354. Even constitutional errors can be waived ifa 

### party fails to properly objectto the errors at trial. Id. at 355. A challenge to the 

### constitutionality of a statute may not be raised for the first time on appeal. Karenevv. State,281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (facial challenges); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied 

### challenges). Therefore, ifaparty's objection at trial does not correspond with its issue on appeal, thepartyhas waivedthatissue. Clark,305 S.W.3dat 354. Appellantfailed topreserve errorbyvoicinghis complaintin the trial court, 

### and appellant concedes that "[t]here was no objection to the mandatory sentencing scheme" in the trial court. This court already has rejected a substantially similar complaint as asserted by appellant based on failure to preserve error in the trial court and held that this complaint did not constitute a complaint offundamental

### error. Cerna v. State, No. 14-12-01126-CR, 2014 WL 3908117, at *6 (Tex. App.—Houston [14th Dist.] Aug 12, 2014, no pet. h.);see also Wilkerson v. State, 

### 141 S.W.3d 720, 722-23 (Tex. App.—Houston [14th Dist.] 2011, pet. refd) (rejecting similar complaint based onfailureto preserve error in the trialcourt). We overrule appellant'sthirdissue.
IV. Court Costs Appellant argues in his fourth issue that the assessed court costs shouldbe 

### deleted from the judgment because there is no bill of costs in the record. Appellant contends that a Harris County Justice Information Management System (JIMS) "CostBillAssessment" is not aproperbill ofcosts "as contemplatedand required by law" because it was signed by a deputy clerk and dated six days after the trial courtjudgmentwas signed. We reviewthe assessmentofcourtcosts on appeal to determine ifthere is a basis for the costs, not to determine whetherthere was sufficient evidence offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. 

### App. 2014). Traditional sufficiency-of-the-evidence standards ofreview do not apply. Id. Generally, abill ofcosts must(1) containthe items ofcost, (2) be signedby 

### the officerwho charged the costor the officerwho is entitledto receive payment for the cost, and (3) be certified. Id. at 392-93; see Tex. Crim. Proc. Code Ann. arts. 103.001, 103.006 (Vernon 2006). The Court ofCriminal Appeals ofTexas 

### has held that a JIMS report constitutes an appropriate bill ofcosts ifthe report itemizes the accrued courtcosts in the appellant's case, contains acertificationby the trial courtclerkthatthe documentis atrueand correctcopyofthe original, and 

### is signed by a deputy clerk. Johnson,423 S.W.3d at 393.

10

### The record in this case contains a computer-screen printout ofthe Harris County Justice InformationManagement System (JIMS) "Cost Bill Assessment." The JIMS report in this record is a compliant bill ofcosts because it contains an itemized listofcosts in appellant's case, a certification by the district clerk that the 

### document is a true andcorrect copy of theoriginal, and a signature of adeputy district clerk. Seeid. at392-93. That the billofcosts was not prepared until after the trial court signed thejudgment does not defeat the lawfulness ofthe bill of 

### costs. Id.at 394. Accordingly, appellant's argumentprovides no basis for relief. There being no challenge to any specific cost or the basis for the assessment of 

### such cost, the bill ofcosts supports the costs assessed in the judgment. See id.at 395. We overrule appellant's fourthissue.
Conclusion 

### Having overruled appellant's four issues, we affirm the trial court's judgment.

/s/ WilliamJ. Boyce Justice Panelconsists ofJusticesBoyce,BusbyandWise. DonotPublish— Tex. R. App. P. 47.2(b).

11