Affirmed as Modified and Memorandum Opinion filed August 22, 2013.

In the

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

Trial 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 contends 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 argues that the court costs imposed 
2

in his judgment are supported by insufficient 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 issue. 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. FACTUAL AND PROCEDURAL BACKGROUND

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, shortly 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, bought a bottle of water from the clerk, Joe Fernandes, and exited the store. 

Approximately 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 semiautomatic. 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 clerk, 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 images of Holiday and the car.

1 As a result, Holiday turned 

himself in. Holiday provided a voluntary statement, 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 another 

 

1

This vehicle belonged to Holiday.
3

criminal matter at the time, and appellant provided a voluntary statement. 

Appellant’s statement generally corroborated the store’s video footage; appellant 

stated that he and Joseph had guns during 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 by Fernandes to “jump at” 

appellant or defend himself in any way.

The jury convicted appellant 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 appellant 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. ANALYSIS

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 failed 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 Almanza 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)). Then, 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 such 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. TEX. PENAL CODE 

ANN. § 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 attempting 
5

to commit the offense of robbery. Id. § 19.03(a)(2) (West Supp. 2012). A person 

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).

The charge included a standard instruction on the law of parties that

substantially tracked section 7.02(a)(2). The charge then instructed in the 

application paragraph at issue:

Now, . . . [i]f you find from the evidence beyond a reasonable 

doubt that on or about the 31st day of August, 2009, in 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 of 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 commission of the 

offense, if any, solicited, encouraged, directed, aided or attempted to

aid Vondra Joseph and/or Milton Holiday and/or Neiman Nelson to 

commit 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, appellant’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 argues that a plain reading of the challenged application paragraph 

authorized the jury to convict him of capital murder under section 7.02(a)(2) based 
6

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 

supports this argument with no authority, but instead insists that the undefined 

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 possible 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, the jury charge contained the correct abstract definition of 

party liability according to section 7.02(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 definitions of murder and capital murder. Thus, 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 commission 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, encouraging, directing, aiding, or 

attempting 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 was 

 

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 [1st Dist.] 2005, pet ref’d). There, as here, the appellant argued 

that use of the 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 460. 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 

course 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 the 

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 defendant 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 commit the 

offense” refers to Cook’s murder.

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 

attempting 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 causing 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 

attempting 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 prepositional 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.” Thus, “the 

offense” is Fernandes’s murder. See id. Likewise, “the offense” in the verb phrase

“solicited, encouraged, directed, aided or attempted to aid [Joseph] to commit 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 under section 7.02(a)(2). Finding no error in the jury charge, we need not 

reach appellant’s arguments as to harm,3and 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, murder, 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-conspirator. See TEX.

PENAL CODE ANN. § 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 doubt. 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 for 
9

See Celis, 2013 WL 2373114, at *3 (“Because there is no charge error in this case, 

we need not conduct 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 conclude 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. TEX. R. EVID. 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 (Tex. 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 exclusion 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 Holford, 177 S.W.3d at 462–63 (jury need not choose unanimously 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 TEX. R. EVID. 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 statement”). 

“[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 TEX. R. EVID. 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 TEX. R. EVID. 804(b)(1)). This

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. Rule 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, 885 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 issue is whether the State’s motive to develop 

Holiday’s testimony was similar. See id. 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 

appellant.

Presuming 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 

admissibility 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 must 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 specifying how the evidence was not hearsay. See Willover 

v. State, 70 S.W.3d 841, 845–46 (Tex. Crim. App. 2002); Jones, 843 S.W.2d at 
12

492–93; see also TEX. R. EVID. 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.” Jones, 843 S.W.2d at 492 (citing TEX. R.

EVID. 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 admissible 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 losing 

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 appellant, 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. The 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 

former testimony was harmless. “With respect to 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 TEX. R. APP. 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 any substantial right of appellant. First, substantially similar 

testimony was admitted into evidence. The proposed testimony 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 could 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 evidence of the defendant’s 

guilt 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 counter 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 may 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 he 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 specific 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 costs, there is no way to 

determine whether any costs are for attorney’s fees, which he contends cannot be 

assessed against indigent defendants. See TEX. CODE CRIM. PROC. ANN. art. 

26.04(p) (West 2011).

In Johnson v. State, 389 S.W.3d 513, 516 (Tex. App.—Houston [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 district 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, because there is no evidence in 

the record to support the trial court’s assessment against appellant of $280 as court 

costs, we sustain his third issue and modify the trial court’s judgment to delete the 

specific dollar amount of costs assessed. 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 parole6is unconstitutional under the Eighth Amendment of the 

United States Constitution, as well as article 1, section 13, of the Texas 

Constitution, because the sentencing scheme provides no vehicle for the 

consideration of mitigating evidence.

7

 We disagree. 

Appellant acknowledges that this court consistently has held 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 TEX. PENAL CODE ANN. § 12.31(a) (West 2011).

7 Appellant preserved error 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. Michigan8applied 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 was not convicted of a nonhomicide 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 specifically 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 from taking account of an offender’s age and the wealth of 

characteristics and circumstances attendant to it.”).

We conclude that Harmelin 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 consideration of mitigating factors, did not 

constitute cruel and unusual punishment, and refused to extend the individualized sentencing 

doctrine 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. CONCLUSION

Having sustained appellant’s third issue, we modify the judgment to delete 

the specific amount of court costs. Having found no reversible error otherwise, we 

affirm the judgment as modified.

/s/ Tracy Christopher

Justice

Panel consists of Justices Brown, Christopher, and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).