Affirmed as Modified and Memorandum Opinion filed August 22 , 2013

.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00389

- CR

DONTREAL DAVAL BROWN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 184th District Court

Harris County, Texas T rial Court Cause No. 1231465

M E M O R A N D U M O P I N I O N
Appellant Dontreal Daval Brown was convicted by a jury of capital murder.
The trial court sentenced appellant to mandatory life without parole. On appeal, he presents five issues . First, appellant conten ds the trial court committed reversible error in the application paragraph of the jury charge . Second, appellant argues that the trial court committed reversible error by excluding former testimony of a
witness from a co

- defendant’s trial . Third, he argu es that the court costs imposed2

in his judgment are supported by in sufficient evidence. And fourth and fifth, appellant contends that mandatory life without parole violates both the United
States and Texas Constitutions. We sustain appellant’s third issu e. Finding no reversible error in his remaining issues, we modify the trial court’s judgment to delete the specific amount of costs, and affirm the judgment as modified.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND Appellant Dontreal Daval Brown was indicted for the felony offense of capital murder, alleged to have been committed on or about August 31, 2009.

On August 31, 2009 , s hortly after 10:00 p.m. , a car pulled up to the Siesta
Food Mart

. A man later identified as Milton Holiday entered the convenience

store , b ought a bottle of water from the clerk, Joe Fernandes , and exited the store

. A pproximately ten minutes later, three other men

— appellant, Vondra Joseph, and
Neiman Nelson

— entered the store, “ clothed from head to toe, including gloves. ” Both appellant and Joseph were carrying firearms that appeared to be semi

automatic. The men had previously met at Joseph’s house and decided to “hit a lick,” which means they planned “to go rob someone. ” After the men entered the
store, Nelson demanded money from the cler k , but he either could not or did not know how to open the cash register

. Joseph fatally shot the clerk in the abdomen

. Detectives Mike Miller and Todd Miller with the Houston Police Department’s homicide division downloaded the store’s surveillance video
, and publicly released still image s of Holiday and the car

. 1 As a result , Holiday turned
himself in . Holiday provided a voluntary sta tement, which led to the development
of appellant , Joseph, and Nelson as the suspects involved in the robbery

. M. Miller and T. Miller interviewed appellant, in custody for anothe r

1 This vehicle b elonged to Holiday.3

criminal matter at the time, and appellant provided a voluntary statement. Appellant’s statement generally corroborated the store’s video footage; a ppellant
stated that he and Joseph had guns du ring the robbery and that Joseph shot
Fernandes

. According to appellant, Joseph shot Fernandes because he “jumped at” appellant. Nothing in the video shows any attempt b y Fernandes to “jump at” appellant or defend himself in any way

. The jury convicted a ppellant of capital murder , and the trial court assessed appellant’s punishment at automatic life in prison without the possibility for parole . In five issues, appellant argues that the trial court committed error (1) in its jury charge, by allowing appel lant to be convicted as a party to capital murder under a reduced burden of proof ; (2) by denying the admission of Holiday’s prior testimony from Joseph’s capital murder trial; (3) by imposing court costs of $280
without sufficient evidence; and (4) and (5 ) by imposing mandatory life without parole in violation of the Eighth Amendment and article 1, section 13 , of the Texas
Constitution.

II. A NALYSIS
A. There was no error in the trial court’s jury charge. In his first issue, appellant argues that language used in the application paragraph of the jury charge was ambiguous and allowed his conviction of capital
murder

— as a party pursuant to section 7.02(a)(2) of the Texas Penal Code

— based solely on proof that he was a party to robbery. Appellant further contends that he properly preserved charge error, and that inclusion of the misleading application paragraph caused him “some harm.” The State responds that no error existed in appellant’s charge, any error is subject to review for egregious harm because appellant fai led to specifically object to this application paragraph, and appellant was not egregiously harmed. We conclude that no error existed in the jury charge.4

1. Standard of review

We review a claim of jury charge error using the two

- step procedure set out
in Alm anza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v.
State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) . We first determine whether there is error in the charge. Id. (citing Ngo v. State , 175 S.W.3d 738, 743 (Tex.
Crim. App. 2005) ). The n, if error is found, we analyze that error for harm. Celis
v. State , — S.W.3d

— , No. PD

- 1584

- 11, 2013 WL 2373114 , at *3 (Tex. Crim. App. May 15, 2013) (citing Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App.
2012 ))

. Error preservation does not become an issue unless harm is assessed. See
Middleton v. State , 125 S.W.3d 450, 453

– 54 (Tex. Crim. App. 2003)

. If there was
error and the appellant objected at trial, we reverse if the error “is calculated to injure the rights of the defendant,” which has been defined to mean that there is “some harm.” Barrios , 283 S.W.3d at 350 (quoting Almanza , 686 S.W.2d at 171 )

. If the error was not objected to, it must be “fundamental” to be reversible, meaning

we reverse only if the error was so egregious and created suc h harm that the defendant “has not had a fair and impartial trial.” Id. (quoting Almanza , 686
S.W.2d at 171 ).

2. The trial court’s jury charge Appellant’s indictment for capital murder alleged that he , on or about August 31, 2009, did unlawfully, while in the course of committing and attempting to commit the robbery of Joe Fernandes, intentionally cause Fernandes’ s death by shooting him with a firearm. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. T EX

. P EN AL C ODE A NN

. § 19.02(b)(1) (West 2011). A person commits the offense of capital murder if he intentionally commits such murder in the course of committing or attempting5

to commit the offense of robbery. Id. § 19.03(a)(2) (West Supp. 2012) . A per son is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2) (West 2011)

. T he charge included a standard instruction on the law of pa rties that substantially track ed section 7.02(a)(2). The charge then instructed in the application paragraph at issue :

Now, . . . [i] f you find from the evidence be yond a reasonable doubt that o n or abo u t the 31st day of August, 2009, i n Harris County, Texas, Vondra Joseph and/or Milton Holiday and/or Neiman Nelson, did then and there unlawfully, while in the course of committing or attempting to commit the robbery o f Joe Fernandes, intentionally cause the death of Joe Fernandes by shooting Joe Fernandes with a deadly weapon, namely a firearm, and that defendant, Dontreal Daval Brown, with the intent to promote or assist the commissi on of the offense , if any, solicit e d, encouraged, directed, aided or attempted to aid Vondra Joseph and/or Milton Holid ay and/or Neiman Nelson to commi t the offense
, if he did ; . . . then you will find the defendant guilty of capital murder , as charged in the indictment. (Emphases added). At the charge conference, appe llant’s trial counsel objected to the trial court’s inclusion of “ the offense” language in both places as an “improper comment on the weight as it is in the charge” and requested that the court define
those “ offenses” for the jury. The trial court overruled the objections.

3. There was no error in the application paragraph at issue

. Appellant argu es that a plain reading of the challenged application paragraph authorized the jury to convict him of capital murder under section 7.02 (a)(2) based6

on proof that he intended to promote or assist “the offense” of robbery alone, not that he intended to promote or assist the actual killing of Fernandes. Appellant support s this argument with no authority , but instead insists that the undefin ed references to “the offense” would “actively mislead” a reasonable jury because “[s]hooting someone is not necessarily an offense whereas ‘robbery’ does carry that connotation.” We disagree.

“ In examining the charge for po ssible error, reviewing courts must examine the charge as a whole instead of a series of isolated and unrelated statements. ” Vasquez v. State , 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (internal quotation marks omitted). Here, t he jury charge contained the correct abstract definitio n of party liability according to section 7.0 2(a)(2). The application paragraph specified that it applied to appellant’s indicted charge of capital murder , 2 and the jury charge
contained the correct abstract definitio ns of murder and capital murder. T h us , the State’s theory under section 7.02(a)(2) was : Joseph committed murder by intentionally or knowingly causing Fernandes’ s death by shooting him with a firearm; Joseph committed capital murder by intentionally committing murder in the

course of commissi on of a robbery; and appellant committed capital murder because he was criminally responsible for Joseph’s commission of murder in the course of commission of a robbery by, with intent to promote or assist Joseph’s conduct in shooting Fernandes and causing his death, soliciting , encourag ing , direct ing , aid ing , or attempt ing to aid Joseph in Fernandes’s murder

. We cannot agree that a reasonable jury would have been confused or misled by the application paragraph’s use of “the offense ” because this language w as

2 The application paragraph for the lesser offense of aggravated robbery by threat followed later in the charge. The charge specified that the jury was only to consider aggravated robbery if it had a reasonable doubt or could not agree on capital murder.7

unambiguous

. In Holford v. State , the First Court of Appeals considered a virtually identical section 7.02(a)(2) application paragraph . 177 S.W.3d 454 (Tex. App.

— Houston [1 st Dist.] 2005 , pet ref’d). There, as here, the appellant argued
that use of t he term “the offense” within the application paragraph was ambiguous and thus the jury was permitted “ to convict him as a party to capital murder if he intended to aid only in the robbery, as opposed to the required intent to aid in the murder.” Id. at 46 0. The challenged application paragraph in Holford stated:

If you find from the evidence beyond a reasonable doubt that on or about the 13th day of January, 2002, in Harris County, Texas, Harold Louis Vaughn, did then and there unlawfully while in the

cou rse of committing or attempting to commit the robbery of Trevor Cook, intentionally cause the death of Trevor Cook by [ cutting Trevor Cook with a deadly weapon, namely a knife/ striking Trevor Cook with a deadly weapon unknown to the Grand Jury ] , and that t he defendant, David Charles Holford, with the intent to promote or assist the commission of the offense , if any, solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to commit the offense , if he did;

. . . then you will find the d efendant guilty of capital murder , as charged in the indictment.

Id. (emphases added). The Holford court concluded that there was no charge error : Read logically, the prepositional phrase “with the intent to promote or assist the commission of the offense ” refers to Cook's murder, that occurred “while in the course of committing or attempting to commit the robbery.” Likewise, the clause “solicited, encouraged, directed, aided or attempted to aid Harold Louis Vaughn to com mit the offense” refers to Cook ’ s m urder.

Id. at 461. Similarly, a logical reading of appellant’s application paragraph leads

us to the same conclusion. As in Holford , appellant’s charge describes capital
murder as murder necessarily occurring while in the course of committing or attempti ng to commit robbery , and thus required the jury to find that appellant ,8

with the intent to promote or assist Joseph in intentionally causing the death of
Fernandes , solicited, encouraged, directed, aided, or attempted to aid Joseph in intentionally causin g the death of Fernandes , while in the course of committing or attempting to commit robbery. See id. “[W]hile in the course of committing or

attem pting to commit the robbery” functions solely as a subordinate adverb clause that describes when Fernandes’s murder must have occurred. “[ T ] he offense” in
the pre positional phrase “with the intent to promote or assist the commission of the
offense” refers back to the immediately preceding noun clause “ that . . . Joseph . . . did then and there unlawfully

. . . intentionally cause the death of Joe Fernandes by shooting Joe Fernandes with a deadly weapon, namely a firearm

. ” T hus , “the offense” is Fernandes’ s murder

. See id. Likewise, “the offense” in the verb phrase

“ solicited, encouraged, directed, aided or at tempted to aid [Joseph] to com mit the
offense ” refers back to Fernandes’ s murder. See id. We conclude that no error existed in the application paragraph at issue, which properly permitted the jury to find appellant guilty of capital murder as a party unde r section 7.02(a)(2). Finding no error in the jury charge , we need not reach appellant’s arguments as to harm, 3 and therefore, we overrule his first issue.

3 Even if there were error in the challenged application paragraph, and allowing that appellant sufficiently preserved error, we cannot agree that the record reveals “some harm.” See Barrios , 283 S.W.3d at 350; see also Vasquez , 389 S .W.3d at 368

– 69 (jury charge error harm assessment considers entire jury charge, state of the evidence, arguments of counsel, and other relevant information). A review of the entire jury charge reveals proper abstract instructions on capital murder, murde r, and section 7.02(a)(2) party liability; and the application paragraph at issue specified that it applied to the indicted charge of capital murder. Moreover, the charge properly instructed the jury on party liability to capital murder as a co

- conspirato r. See T EX

. P ENAL C ODE A NN

. § 7.02(b) (West 2011). The state of the evidence reveals that, as discussed infra in Section II.B.2, the jury reasonably could have found appellant had the intent to promote or assist Fernandes’s murder beyond a reasonable dou bt. This evidence also would have permitted a rational jury to convict appellant as a party to capital murder as a co

- conspirator, which does not require specific intent to promote or assist murder, but rather only that murder should have been anticipated by appellant as a result of carrying out the conspiracy to commit robbery. See id. Finally, no one argued at closing that a section 7.02(a)(2) party conviction for9

S ee Celis , 2013 WL 2373114 , at *3 ( “ Because there is no charge error in this case,
we need not con duct a harm analysis. ”); Barrios , 283 S.W.3d at 353 (same)

. B. The trial court did not reversibly err in excluding Holiday’s former testimony. In his second issue, appellant argues that the trial court abused its discretion when it refused to admit portions of Holiday’s prior testimony at Joseph’s trial on the basis of hearsay. Appellant maintains “Holiday’s testimony would have corroborated [appellant’s] contention that he did not intend to kill Joe Fernandes when they robbed the convenience store.” We con clude that the trial court did not abuse its discretion in excluding Holiday’s former testimony and , in any event, any
error in excluding the testimony was harmless. Rule 804(b)(1) allows the admission of former testimony if a declarant is
unavailable as a witness. T EX

. R. E VID

. 804(b)(1) (providing that “ [i] n criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination ” is not excluded as hearsay)

. We review a trial court ’ s decision on whether to admit former testimony under rule 804(b)(1) for an abuse of
discretion. Coffin v. State , 885 S.W.2d 140, 149 (T ex. Crim. App. 1994) (en banc).
We do not conduct a de novo review , but instead limit our role to determining whether the record supports the trial court’s ruling. Id. A trial court’ s exclu sion of testimony is an abuse of discretion only if the decision lies outside the zone of reasonable disagreement. See Kelly v. State , 824 S.W.2d 568, 574 (Tex. Crim.

capital murder only required a showing that appellant specifically intended to promote or assist the robbery. In fact, the State emphasized its section 7.02(b) co

- conspirator theory, which alternative theory the jury was properly permitted to convict appellant of based on the charge. See H olford , 177 S.W.3d at 462

– 63 (jury need not choose un animously between theories of primary or party liability where sole actus reus is murder).10

App. 1992); Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’ g)

. A trial court abuses its discretion only if we can say with confidence that no reasonable perception of the matter under consideration could have yielded the court’s decision. See Montgomery , 810 S.W.2d at 391.

A witness is rendered unavailable if he invokes his Fifth Amendment privilege not to testify. Jones v. State , 843 S.W.2d 487, 490 (Tex. Crim. App. 1992), abrogated on other grounds , Maxwell v. State , 48 S.W.3d 196 (Tex. Crim. App. 2001) (grand jury witness); Bryan v. State , 837 S.W.2d 637, 644 (Tex. Crim. App. 1992), abrogated on other grounds , Trevino v. State , 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) (defendant); see T EX

. R. E VID

. 804(a)(1) ( witness is
unavailable if he “ is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’ s statem ent ”). “[H] earings on the allegation brought against a criminal defendant , ” including trials and grand jury proceedings, satisfy the requirement that the testimony be given at “another hearing of the same or a different proceeding.” See Jones , 843
S.W.2d at 490

– 91 (citing T EX

. R. E VID

. 804(b)(1)). The final requirement for
admission under rule 804(b)(1) is that the “party against whom the testimony is
now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Id. (citing T EX

. R. E VID

. 804(b)(1)). T his

serves to protect the party against whom the hearsay evidence is offered from the
ill

- effects of not being able to examine the witness who gave the testimony. Id. at 491. R ule 804(b)(1) does not require that the opponent of the evidence have had

an “ identical ” motive to develop the testimony , but rather only requires that he have had a “similar” motive. Coffin , 88 5 S.W.2d at 147.11

1. The trial court did not abuse its discretion in excluding Holiday’s testimony. Appellant contends that Holiday’s former testimony meets all of rule 804(b)(1)’s requirements. During his guilt phase, outside the presence of the jury, appellant called Holiday to the stand. Holiday, who had testified for the State at Joseph ’s trial but whose criminal case was still pending, invoked the Fifth Amendment. Appellant then moved to have certain pages of Holiday’s testimony from Joseph’s trial admitted as former sworn testimony. The State objected on the basis of hearsay, and the trial court sustained the objection. The only requirement at issu e is whether the State’s motive to develop Holiday’s testimony was similar

. See i d. Holiday’s former testimony does not
come from grand jury proceedings for the same trial , as in Jones , or from a retrial
of the same defendant , as in Bryan

. The State argues that , even though Joseph and appellant were co

- defendants, the State did not have a similar enough motive to develop Holiday’s testimony in Joseph’ s trial for purposes of incriminating

a ppellant

. Pre suming without deciding, for purposes of our analysis, that Holiday’s former testimony fell within rule 804(b)(1), we still conclude the trial court did not abuse its discretion in refusing to admit the proffered testimony. Our analysis of
ad missibility does not stop at whether Holiday’s former testimony meets rule 804(b)(1). See Jones , 843 S.W.2d at 492. When a trial court excludes evidence, part of which is admissible and part of which is not, the party on the adverse side of the ruling mu st separate the admissible evidence from the inadmissible evidence and state the reason for its admissibility , e.g., which exception to the hearsay rule he was relying upon or specify ing how the evidence was not hearsay

. See Willover
v. State , 70 S.W.3d 8 41, 845

– 46 (Tex. Crim. App. 2002) ; Jo nes , 843 S.W.2d at12

492

– 93 ; see also T EX

. R. E VID

. 103(a)(2). This is because “ [i] nadmissible hearsay testimony does not become admissible simply because it is contained within an admissible document or transcript. ” Jo nes , 843 S.W.2d at 492 (citing T EX

. R.
E VID

. 805)

. This is also because, as the Jones court explained in upholding the
exclusion of grand jury witness testimony: The trial court need never sort through challenged evidence in order to segregate the admissi ble from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the l osing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection.

Id. Our review reveals that the requested excerpt of Holiday’s testimony contains
both admissible evidence

— what appellan t, Joseph, and Nelson did upon returning to the car after the robbery

— and presumptively inadmissible hearsay evidence

— appellant’s and Joseph’s out

- of

- court statements to Holiday

. Although appellant’s
trial counsel identified certain transcript pages that he wanted to be admitted, he did not segregate and specifically offer which portions of Holiday’s testimony he sought to have admitted

. T he only reason appellant provided in support of admission of the entirety of the excerpt was rule 804(b)(1). 4 Under these circumstances, the trial court was within its discretion to disallow all of the requested evidence. See Willover , 70 S.W.3d at 847 ( citing Jones , 843 S.W.2d at
492

– 93 )

.

4 Specifically, appellant’s trial counsel stated: “ This is not hearsay. It ’ s sworn testimony. And [Holiday] has made himself unavailable, Judge. . . . I have made the Court aware of my understanding of the hearsay exception to former testimony. ” Even on appeal, appellant never specifies how his out

- of

- court statements to Holiday would not otherwise be inadmissible as hearsay.13

2. Any error in excluding Holiday’s testimony was harmless. Appellant contends the trial court’s error prevented him from presenting evidence in support of his defense that he did not have specific intent to kill
Fernandes. 5 However, we conclude that any error in the exclusion of Holiday’s
f ormer testimony was harmless. “W ith respect t o the erroneous admission or exclusion of evidence, constitutional error is presented only if the correct ruling was constitutionally required; a misapplication of the rules of evidence is not
constitutional error. ” Fox v. State , 115 S.W.3d 550, 563 (Tex. App.

— Houston [14th Dist.] 2002, pet ref’d). Thus, we generally analyze harm under rule 44.2(b)
because the error is not constitutional

. Id. ; see T EX

. R. A PP

. P. 44.2. We disregard such evidentiary error unless it affected appellant’s substantial rights ; that is, if it
had a substantial and injurious effect or influence on the jury’s decision. See King
v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Our examination of the entire record leads us to conclude that the alleged
error did not affect a ny substantial right of appellant. First, substantially s imilar testimony was admitted into evidence

. The proposed tes t imony from Holiday was that appellant asked Joseph why he shot Fernandes, and Joseph answered, “Because he tried to grab me.” T. Miller testified appellant gave a statement that the reason Joseph shot Fernandes was because the clerk “ jumped at ” or “grabbed” appellant, and appellant did “ say he didn’t know that was going to happen

. ” Moreover, there was other evidence from which the jury cou ld have reasonably inferred appellant’s intent to promote or assist Joseph in the murder of
Fernandes beyond a reasonable doubt

. See Motilla v. State , 78 S.W.3d 352, 360

5 We note appellant does not argue that the erroneous exclusion of evidence amounted to denial of his due process or other constitutional right. See Potier v. State , 68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (en banc)

.14

(Tex. Crim. App. 2002) (“ Though not dispositive, the e vidence of the defendant’ s guil t is a relevant factor in conducting a harm analysis under Rule 44.2(b) .”). Appellant agreed to participate in “hitting a lick” at the convenience store and
served as the second gunman to Joseph . Appellant was captured on video as he participated in the robbery with a semi

- automatic firearm

. He was shown checking the manager’s office, “crouching down with the gun out,” walking with “his gun out,” and going “behind the cou nter with the victim. ” Appellant was holding the
firearm “[t]o be able to use it.” Finally, M. Miller testified that firearms are deadly weapons, and it was “not unusual” and was “common sense” for someone to end up hurt or dead in robberies involving firearms

. See Jones v. State , 944 S.W.2d 642, 647 (Tex. Crim. App. 1996 ) (“ The jury m ay infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. ”). And T. Miller testified appellant did not indicate “particularly” that h e was shocked or surprised by Joseph’s having shot Fernandes. On this record, we cannot conclude that the exclusion of Holiday’s testimony had a “substantial or injurious ” influence. See King , 953 S.W.2d at 273.

C. The trial court erred in awarding a speci fic amount of court costs against appellant

. In his third issue , appellant argues that there was insufficient evidence to support the court costs of $280 assessed against him in the judgment

. Appellant
contends that because there is no certified bill of c osts, there is no way to determine whether any costs are for attorney’s fees, which he contends cannot be assessed against indigent defendants. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(p) (West 2011).

I n Johnson v. State , 389 S.W.3d 513 , 516 (Tex. App.

— H ouston [14th Dist.]15

2012, pet. granted), we held that when the record does not support the assessment of a certain dollar amount in costs, the trial court errs in entering a specific dollar amount in its judgment. Appellant specifically requested the dist rict clerk to include the bill of costs in the appellate record, but none was provided. The State responds that numerous provisions in the Texas Code of Criminal
Procedure and the Local Government Code authorize various court costs to be paid by appellant, totaling $404. Thus, the evidence is sufficient to support the $280 in court costs assessed. We rejected this precise argument in Rogers v. State , — S.W.3d

— , No. 14

- 12

- 00182

- CR, 2013 WL 2442194, at *8 (Tex. App.

— Houston [14th Dist.] June 6, 2013, no pet. h.). Therefore, b ecause there is no evidence in the record to support the t rial court’ s assessment against appellant of $280 as court costs, we sustain his third i ssue and modify the trial court’ s judgment to delete the specific dollar amount of costs as sessed. See id. ; Johnson , 389 S.W.3d at 516.

D. The trial court did not violate appellant’s constitutional rights by imposing life without parole

. In his fourth and fifth issues, appellant argues that the automatic punishment of life without parole 6 is uncon stitutional under the Eighth Amendment of the United States Constitution, as well as article 1, section 13 , of the Texas
Constitution , becaus e the sentencing scheme provides no vehicle for the
conside ration of mitigating evidence

. 7 We disagree. Appellan t acknowledges that this court consistently has h eld that a mandatory life sentence does not amount to cruel and unusual punishment under
either constitution

. E.g., Wilkerson v. State , 347 S.W.3d 720, 723 (Tex. App.

—

6 See T EX

. P ENAL C ODE A NN

. § 12.31(a) (West 2011).

7 Appellant preserved er ror on these issues in a pretrial motion challenging the constitutionality of the automatic life sentence statute.16

Houston [14th Dist.] 2011, pet. ref’d). In Wilkerson , we rejected the appellant’s argument that Harmelin v. Michigan 8 applied with less force after the issuance of
Graham v. Florida

. 9 347 S.W.3d at 722

– 73. We determined that Graham did not control where the appellant was not a juvenile and w as not convicted of a non

homicide crime, but Harmelin still did. Wilkerson , 347 S.W.3d at 723.

Since we decided Wilkerson , the Supreme Court has extended Graham to hold that a sentence of mandatory life without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment

. Miller v.
Alabama , — U.S.

— , 132 S. Ct. 2455 , 2460 (2012)

. Appellant argues that we must
reconsider Harmelin in light of and extend Miller to adult offenders. We disagree.
In Miller , the Court sp ecifically stated that its holding “neither overrules nor
undermines nor conflicts with Harmelin .” 132 S. Ct. at 2470. Further, the Court explained at length how it is the fact of youth itself that precludes mandatory sentencing schemes for juveniles: “ a sentencer misses too much if he treats every
child as an adult. ” Id. at 2467

– 68 (“[M] andatory penalties, by their nature, preclude a sentencer fro m taking account of an offender’ s age and the wealth of
characteristics and circumstances attendant to it. ”)

. We conclude that H

armelin and Wilkerson still control, and we overrule appellant’s fourth and fifth issues.

8 In Harmelin v. Michigan , the Supreme Court held that the imposition of a mandatory sentence of life in prison without parole, without consi deration of mitigating factors, did not constitute cruel and unusual punishment, and refused to extend the individualized sentencing doctri ne to the term

- of

- years context . 501 U.S. 957, 994

– 96 (1991).

9 In Graham v. Florida , the Supreme Court held that it was unconstitutional for a juvenile to be sentenced to life without parole for a non

- homicide crime. 560 U.S. 48 , 130 S. Ct. 2011, 2034 (2010)

.17 III. C ONCLUSION Having sustained appellant’s third issue, we modify the judgment to delete the specific amount of court costs . Having found no reversi ble error otherwise, we affirm the judgment as modified.

/s/ Tracy Christopher Justice

Panel consists of Justices Brown, Christopher, and McCally.
Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).