/S7V-/V

No.PD-1574-14

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

CHRISTOPHER PENN

Appellant

V.

THE STATE OF TEXAS

Appellee

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'PIMAv

RECEIVED IN

-RBWWAI APPCnLS

TO 17 2015

AbelAcosta.Cteit

F'LED IN

COURT OF CRIMINAL APPEALS

FEB 2Q 2015

Review sought from the Court of Appeals Abel Acosta 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-Se
TABLE 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

ii
Miller 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

m
STATEMENT 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.

1
STATEMENT 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 17,2015
GROUNDS 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 conyiction 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 relessness." 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 the
death 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 Adames 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

10
the 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." Millv. 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

11
defendant's character and any circumstances of the offense that the

defendant proffers as a basis for a sentence less than death. "Odviously, 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 Harmelin, 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. §

12
12.31(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--rrr
It was "the confluence of these two lines of precedent," Miller de

clared, that "lead to the conclusion that mandatory life-without-parole 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

14
factors, 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 be

germane 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 mand

atory 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,

15
does 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 the

preceding Eighth Amendment argument. This Court should hold that Sec16
tion 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

17
in 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).

18
Id., 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

19
as 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.

20
PRAYER 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 cespec submitted,

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 75886
APPENDIX

22
Affirmed and Memorandum Opinion filed September 16, 2014.

In The

Jfrmrtmttl} OInurt of Appeals

NO. 14-13-00263-CR

CHRISTOPHER LAMONT PENN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1345118

MEMORANDUM OPINION

Ajury convicted appellant Christopher Lamont Penn of capital murder1 and

the trial court assessed a mandatory punishment at life imprisonment without

parole.2 Appellant challenges his conviction in four issues, arguing that (1) the

evidence is legally insufficient to support his capital murder conviction because the

1See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2014).

2See Tex. Penal Code Ann. § 12.31(a)(2) (Vernon Supp. 2014).
State did not establish that appellant robbed or attempted to rob the complainant

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 parole violates 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 not contain a proper bill of costs. We affirm.

Background

On March 11, 2011, appellant told his brother Anthony Smith that he needed

money and asked about a drug dealer Smith knew. 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 of drugs and money.

Appellant threatened to make Smith stop living in appellant's home if Smith did

not help with the robbery. Appellant and Smith then drove to Richard's apartment;

they planned to rob Richard only if he was alone.

Appellant was armed with a knife when he and Smith arrived at Richard's

apartment. Richard's brother Malquan King was present in 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

Smith remained in Richard's apartment briefly, then left so appellant could retrieve

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.

Appellant told Richard, "You know what time it is. Lay it down," which Richard

2
understood to mean appellant was "fixing to rob" him. Appellant laid Richard on

the ground, pointed and waived the gun at everyone present in the apartment, and

asked repeatedly, "[W]here is it at?" King pulled a bag out of his pocket

containing a small amount of marijuana and stated thattheydid nothave any more.

At this point, the complainant jumped up from a nearby bed and ran toward

a bedroom. Appellant fired his gun at the complainant, chased the complainant

into the bedroom, and fired again; the complainantthen jumped out of a window.

Richard got up and ran out of the apartment to find a gun or get help. Smith

took the bag of marijuana from King, and then left the apartment with appellant.

Fletcher ran upstairs to her apartment; she found 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

appellant intentionally caused the death ofthe complainant "while in the course of

committing and attempting to commit" the robbery of the complainant. A jury

found appellant guilty of capital murder, and the trial court imposed a mandatory

sentence of life imprisonment without parole. Appellant filed a timely appeal.

Analysis

I. Sufficiency of the Evidence

Appellant argues in his first issue that the evidence is legally insufficient to

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]he evidence supports [that appellant] was robbing a different individual"

when he shot the complainant.
When reviewing the sufficiency ofthe evidence, we view all ofthe evidence

in the light most favorable to the verdict and determine whether, based on that

evidence and any reasonable inferences from it, any rational factfinder could have

found the elements of the offense beyond a reasonable doubt. Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011). In making this review, an appellate

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 of review 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

of an actor, and the standard of review 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).

The jury is the exclusive judge ofthe credibility of witnesses and the weight

ofthe evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

We defer to the jury's responsibility to fairly resolve conflicts in the evidence, and

we draw all reasonable inferences from the evidence in favor of the 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 a sufficiency

review, we do not engage in a second evaluation of the weight and credibility of

the evidence, but only ensure the jury reached a rational decision. Young v. State,

358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet. refd).

A person commits the offense of capital murder ifthe person intentionally or

knowingly causes the death of an individual in the course of committing or

attempting to commit robbery. See Tex. Penal Code Ann. § 19.02(a)(2) (Vernon
2011), § 19.03(a)(2) (Vernon Supp. 2014).

A person commits robbery if, in the course of committing theft and with

intent to obtain or maintain control of the property, the person intentionally,

knowingly, or recklessly (1) causes bodily injury to another; or (2) threatens or

places another in fear of imminent bodily injury or death. See Tex. Penal Code

Ann. § 29.02(a) (Vernon 2011).

A person commits theft if he appropriates property without the owner's

consent and with intent to deprive the owner of the property. See Tex. Penal Code

Ann. § 31.03(a), (b)(1) (Vernon Supp. 2014). "Tn the course of committing theft'

means conduct that occurs in an attempt to commit, during the commission, or in

the immediate flight after the attempt or commission of theft." Tex. Penal Code

Ann. § 29.01(1) (Vernon 2011).

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 brief that the "evidence was overwhelming that the

persons robbed were Markquis Richard, and possibly his brother Malquan. . . .

There is evidence of a robbery ofMarkquis and his brother."

Appellant instead challenges the sufficiency of the 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 complainant was only a "bystander" to the robbery of Richard 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 or attempt to rob the complainant.

In essence, appellant argues that the victim of the theft and the victim of the
robbery must be identical, and the individual assaulted in the course of committing

theft must be the intended victim of the theft in order to commit a robbery. We

disagree.

Theft is the underlying offense for a robbery. Exparte Hawkins, 6 S.W.3d

554, 560 (Tex. Crim. App. 1999). Robbery is a form of assault. Id.; Boston v.

State, 373 S.W.3d 832, 839 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321

(Tex. Crim. App. 2013). "[T]he offense of robbery includes any violence in the

course of effectuating [a] theft as well as any violence while in immediate flight

from the scene of the theft." Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim.

App. 1976) (affirming aggravated robbery conviction of defendant who assaulted a

police officer after stealing money from a cash register).

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

completed theft is required for the proscribed conduct to constitute the offense of

robbery." White v. State, 671 S.W.2d 40, 41 (Tex. Crim. App. 1984); Sweed v.

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); Camacho v. State, 825 S.W.2d

168, 170 (Tex. App.—Fort Worth 1992, pet. refd). "Nor is it necessary that the

victim of the theft or attempted theft and the victim of the robbery be the same."

White, 671 S.W.2d at 41-42 (affirming aggravated robbery conviction of getaway

driver who shot pursuing bystander in order to free companion who 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 of two counts of

aggravated robbery where defendant threatened one employee while stealing

money from him and then threatened another employee before driving away in a
car).

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

Richard's apartment intending to steal drugs and money from Richard. Appellant

grabbed Richard and pointed a gun at Richard's face. Appellant laid Richard on

the ground, pointed and waived a gun at everyone present in the apartment, and

asked repeatedly, "[W]here is it at?" Richard's brother King then pulled a bag

with a small amount of marijuana out of his pocket. The complainant, who was

among those present in the apartment, jumped up from 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 of marijuana from King and then left the apartment together with

appellant.

This evidence is sufficient for a reasonable jury to conclude that appellant

intentionally, caused the complainant's death while in the course of committing the

robbery of the complainant. This evidence is sufficient because the victim of the

theft and the victim ofthe robbery need not be the same. See White, 671 S.W.2d at

41-42; Sweed, 321 S.W.3d at 47; Camacho, 825 S.W.2d at 170. Appellant

committed robbery by intentionally causing bodily injury to the complainant in the

course of committing the theft of Richard's marijuana and with intent to obtain

control ofthe marijuana.

Accordingly, we reject appellant's contention that the evidence in this case

is legally insufficient to support his capital murder conviction on the ground that

there is no evidence that he killed the complainant in the course of robbing or

attempting to rob the complainant. Thus, we conclude that the evidence is legally

sufficient to support appellant's capital murder conviction.
We overrule appellant's first issue.

II. Due Process

Appellant contends in his second issue that he was "denied due process

because there was no evidence in the record that he wasrobbing" the complainant.

Appellant citesAdames v. State, 353 S.W.3d 854, 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

acquittal rendered."

We reject appellant's contention. First, appellant was not convicted "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 commit robbery; and the charge essentially tracked

the indictment language. Second, we already have concluded that the evidence is

legally sufficient to support the jury's finding that appellant robbed the

complainant and thus is sufficient to support appellant's capital murder conviction.

Accordingly, there is no due process violation as asserted by appellant.

We overrule appellant's second issue.
III. Punishment

Appellant argues in his third issue that the automatic punishment of life

without parole violates the Eighth Amendment of the United States Constitution

and article 1, section 13 of the Texas Constitution because the sentencing scheme

provided no opportunity for the consideration of mitigating evidence.

The Texas Rules of Appellate Procedure require a party to preserve error for

appellate review by demonstrating the error on the record. 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 of the 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 if a

party fails to properly object to 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.

Karenev v. 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, if a party's objection at trial does not correspond with its

issue on appeal, the party has waived that issue. Clark, 305 S.W.3d at 354.

Appellant failed to preserve error by voicing his complaint in 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 of fundamental
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 on failure to preserve error in the trial court).

We overrule appellant's third issue.

IV. Court Costs

Appellant argues in his fourth issue that the assessed court costs should be

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)

"Cost Bill Assessment" is not a proper bill of costs "as contemplated and required

by law" because it was signed by a deputy clerk and dated six days after the trial

court judgment was signed.

We review the assessment of court costs on appeal to determine if there is a

basis for the costs, not to determine whether there 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 of review do not

apply. Id.

Generally, a bill of costs must (1) contain the items of cost, (2) be signed by

the officer who charged the cost or the officer who is entitled to 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 of Criminal Appeals of Texas

has held that a JIMS report constitutes an appropriate bill of costs if the report

itemizes the accrued court costs in the appellant's case, contains a certification by

the trial court clerk that the document is a true and correct copy ofthe 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 of the Harris

County Justice Information Management System (JIMS) "Cost Bill Assessment."

The JIMS report in this record is a compliant bill of costs because it contains an

itemized list of costs in appellant's case, a certification by the district clerk that the

document is a true and correct copy of the original, and a signature of a deputy

district clerk. See id. at 392-93. That the bill of costs was not prepared until after

the trial court signed the judgment does not defeat the lawfulness of the bill of

costs. Id. at 394. Accordingly, appellant's argument provides no basis for relief.

There being no challenge to any specific cost or the basis for the assessment of

such cost, the bill of costs supports the costs assessed in the judgment. See id. at

395.

We overrule appellant's fourth issue.

Conclusion

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

judgment.

/s/ William J. Boyce

Justice

Panel consists ofJustices Boyce, Busby and Wise.

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

11