IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1596-12

JAMES GARZA, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

KEASLER, J., delivered the opinion of the Court, in which MEYERS, PRICE,

WOMACK, and HERVEY, JJ., join. PRICE, J., filed a concurring opinion, in which

WOMACK, J., joined. COCHRAN, J., filed a concurring opinion, in which ALCALA, J.,

joined. ALCALA, J., filed a concurring opinion, in which JOHNSON and COCHRAN, JJ.,

joined. KELLER, P.J., filed a dissenting opinion.

O P I N I O N

On appeal, James Garza contested the imposition of his life-without-parole sentence

arguing that, because he was a juvenile, the sentence violated his Eighth Amendment rights

as defined by the United States Supreme Court’s decision in Miller v. Alabama. The Fourth

Court of Appeals refused to review his claim and held that, by failing to lodge an objection
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in the trial court, Garza has forfeited this claim on appeal. We reverse the court of appeals’

decision because it conflicts with this Court’s subsequently delivered opinion in Ex parte

Maxwell.

In November 2011, a jury convicted James Garza of capital murder for his

involvement in the stabbing death of the complainant for the purpose of stealing the

complainant’s car. The State waived the death penalty because Garza was a juvenile at the

time of the capital murder. Immediately upon conviction, Garza was sentenced to life

without parole pursuant to Texas Penal Code § 12.31(b), as it existed at the time. No

sentencing hearing was conducted, and “[n]o objection was voiced to the procedure

employed or to the imposition of the sentence imposed.”

1

In a single issue on appeal, Garza claimed that his life-without-parole sentence

violated the Eight Amendment’s prohibition against cruel and unusual punishment because

his status as a juvenile bars the punishment imposed. Garza cited the United States Supreme

Court’s 2012 opinion in Miller v. Alabama in support of his claim. The court of appeals

2

affirmed the trial court’s judgment without addressing the merits of Garza’s claim because

it found that the issue had not been preserved for review.

3

Appellant’s Br. 4.

1

132 S.Ct. 2455 (2012) (holding that the mandatory imposition of a life-without2

parole sentence upon a juvenile is unconstitutional).

Garza v. State, No. 04–11–00891–CR, 2012 WL 5236048, at *1 (Tex.

3

App.—San Antonio Oct. 24, 2012) (mem. op, not designated for publication).
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Garza asserts that the court of appeals erred by deciding the procedural-default issue

under general preservation-of-error principles without considering whether Garza’s claim

must be preserved in light of our opinion in Marin v. State. Texas Rule of Appellate

4

Procedure 33.1 establishes the general requirement that a contemporaneous objection must

be made to preserve error for appeal. But in Marin, we held that the general preservation

5

requirement does not apply to all claims. There, we separated the rights of a defendant into

three categories:

• The first category of rights are those that are “widely considered so fundamental to

the proper functioning of our adjudicatory process . . . that they cannot be forfeited

. . . by inaction alone.” These are considered “absolute rights.”

6 7

• The second category of rights is comprised of rights that are “not forfeitable”—they

cannot be surrendered by mere inaction, but are “waivable” if the waiver is

affirmatively, plainly, freely, and intelligently made. The trial judge has an

8

independent duty to implement these rights absent any request unless there is an

effective express waiver.

9

• Finally, the third category of rights are “forfeitable” and must be requested by the

851 S.W.2d 275 (Tex. Crim. App. 1993), overuled on other grounds by Cain v.

4

State, 947 S.W.2d 262 (Tex. Crim. App. 1997).

TEX. R. APP. PRO. 33.1(a) (requiring that, as a prequisite to presenting a

5

complaint on appeal, the record show a complaint was made to the trial court alleging

specific grounds for the objection that comply with the Rules of Evidence and that the

trial court ruled, or refused to rule on, the objection.).

Marin, 851 S.W.2d at 278.

6

Id. at 279.

7

Id. at 279–80.

8

Id.

9
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litigant. Many rights of the criminal defendant, including some constitutional rights,

10

are in this category and can be forfeited by inaction.

11

Rule 33.1’s preservation requirements do not apply to rights falling within the first two

categories. Barring these two narrow exceptions, all errors—even constitutional

12

errors—may be forfeited on appeal if an appellant failed to object at trial. Although it did

13

not reference Marin specifically, the court of appeals relied on this Court’s previous cases,

in addition to several other courts of appeals’ decisions, generally holding that Eighth

Amendment issues are forfeited if not raised in the trial court. The court of appeals reached

14

this conclusion without the benefit of our opinion in Ex parte Maxwell. A careful reading

15

of Maxwell indicates that a majority of this Court has already passed on this issue—if only

by necessary implication.

In Maxwell, a majority of the Court—over two dissenting opinions joined by a total

of four judges—held that the rule announced in Miller was a new substantive rule, as

Id.

10

Id. at 279.

11

See id. at 279–80.

12

Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).

13

Garza, 2012 WL 5236048, at *2 (citing Rhoades v. State, 934 S.W.2d 113, 120

14

(Tex. Crim. App.1996), Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App.1995),

Ham v. State, 355 S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d), Noland v.

State, 264 S.W.3d 144, 152 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d), and

Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d)).

Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App. Mar. 12, 2014).

15
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opposed to a procedural rule, and therefore applied retroactively. In so holding, the

16

majority concluded that Miller “puts a juvenile’s mandatory ‘life without parole’ sentence

outside the ambit of the State’s power.” It was Maxwell’s status as a juvenile, so went the

17

analysis, that precluded imposing the life-without-parole sentence he received. While on

18

its face, Maxwell appeared to address a pure retroactivity question, it held by necessary

19

implication that a claim asserting an Eighth Amendment violation under Miller was not

subject to procedural default. The majority opinion specifically acknowledged that, on direct

appeal, the court of appeals “rejected [Maxwell’s] claim that his automatic sentence violated

the Eighth Amendment because he had never raised that claim in the trial court.”

20

Nonetheless, the majority granted Maxwell habeas corpus relief by vacating his life-withoutparole sentence and remanding the case for further sentencing proceedings permitting the

factfinder to determine whether Maxwell’s sentence should be assessed at life with or

without parole.

21

While this case presents a question of error preservation on appeal and not in a

Id. at 73–76.

16

Id. at 75 (emphasis in original).

17

Id.

18

See id. at 67–68. (“We ordered that this application be filed and set to decide if

19

Miller v. Alabama applies retroactively to a claim raised in a post-conviction proceeding,

and, if so, what remedy is appropriate.”).

Id. at 68.

20

Id. at 76.

21
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collateral proceeding, the preservation requirement overlaps substantially, and the

requirement in each context informs the other. It has become a staple in our habeas corpus

22

jurisprudence that preservation of error is generally a prerequisite to being granted relief.

23

In their treatise, Professors Dix and Schmolesky correctly summarize our case law on the

topic thus:

Generally, all of the reasons that support the need for a matter to have

been raised at trial when the matter is relied upon in direct appeal apply

equally or more forcefully when a matter is relied upon in postconviction

habeas corpus. Most likely, then, if a matter is one that could be relied upon

on appeal only if the defendant called it to the attention of the trial judge in a

timely manner and requested appropriate relief, similar action will be held

necessary to “preserve” the matter for consideration on habeas corpus.

. . . .

The nature of collateral attack, moreover, suggests that even a more

stringent standard than is applied on direct appeal might at least sometimes be

appropriate in the habeas corpus context.

24

See generally Ex parte Crispen, 777 S.W.2d 103, 105 (Tex. Crim. App. 1989)

22

(stating “this Court adheres to the contemporaneous objection rule which is, generally,

that ‘appellate courts will not consider any error which counsel for the accused could

have called, but did not call, to the attention of the trial court at the time when such error

could have been avoided or corrected by the trial court.’”), Ex parte Bagley, 509 S.W.2d

332, 333 (Tex. Crim. App. 1974) (“The same rule as to the necessity of an objection to

complained of evidence has been applied by this Court in habeas corpus cases.”), 43B

GEORGE E. DIX & JOHN M. SCHMOLESKY, CRIMINAL PRACTICE AND PROCEDURE § 59:7

(3d ed. 2011) (“Bagley incorporates contemporaneous objection law as developed in

direct appeal cases into habeas corpus law.”).

See, e.g, Ex parte Jimenez, 364 S.W.3d 866, 882 (Tex. Crim. App. 2012), Ex

23

parte Medellin, 280 S.W.3d 854, 860–63 (Tex. Crim. App. 2008), Ex parte Bagley, 509

S.W.2d at 334.

43B DIX & SCHMOLESKY at § 59:7.

24
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Like the result of forfeiture by inaction in the trial court, this Court will not review the merits

of a habeas corpus claim if an applicant had the opportunity to raise the issue on appeal.

25

We have held that even constitutional claims are forfeited if an applicant had the opportunity

to raise the issue on appeal. This principle stemmed from the oft-quoted axiom “The Great

26

Writ should not be used in matters that should have been raised on appeal.” And “the trend

27

of this Court has been to draw stricter boundaries regarding what claims may be advanced

on habeas.”

28

However, by reaching the merits of Maxwell’s claim, the Maxwell majority held,

perforce, that Maxwell’s Miller claim was not subject to procedural default. This implied

holding was a condition precedent to granting relief; it was a threshold through which the

Court allowed Maxwell’s claim to pass. Without it, the Court could not entertain the merits

of Maxwell’s claim consistent with our established case law, much less grant relief on it.

Maxwell’s result decided the issue before us today: substantive status-based or

individualized-sentencing claims under the Eighth Amendment and embraced by Miller are

Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008), Ex parte

25

Cruzata, 220 S.W.3d 518, 520 (Tex. Crim. App. 2007), Ex parte Townsend, 137 S.W.3d

79, 81 (Tex. Crim. App. 2004); Ex parte Bagley, 509 S.W.2d at 334.

E.g., Jimenez, 364 S.W.3d at 882 (holding that Applicant forfeited his claim

26

based on Ake v. Oklahoma, 470 U.S. 68 (1985), for failing to object at trial and pursue

claim on appeal).

Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989).

27

Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim. App. 2006).

28
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not forfeited by inaction. We therefore may not conclude today that Garza’s Miller claim is

forfeited on appeal without an objection at trial and at the same time adhere to the Court’s

opinion in Maxwell. Failing to consider Maxwell’s effect on the instant case denies Maxwell

the force of precedent deserving of an opinion that received the support from a majority of

the Court. Until such time as the United States Supreme Court calls this Court’s

characterization of the Miller rule into doubt, we are bound by Maxwell’s express and

necessarily implied holdings.

We do find limits on Maxwell’s implied holding, though. In granting Maxwell habeas

corpus relief, the Maxwell majority did not purport to discern whether his Miller claim fell

within Marin’s “absolute prohibitions” or “waiver-only” category. It was sufficient for the

majority opinion to hold that Maxwell’s claim was simply not forfeited. Likewise, this case

does not require that we further define where in Marin’s categorical structure a Miller claim

is properly placed. We reserve such a decision for a matter that properly presents the issue.

Maxwell sufficiently addressed the propriety of the court of appeals’ holding we are called

upon to review.

Accordingly, we hold that Garza’s claim was not forfeited by his failure to urge his

claim in the trial court. The court of appeals’ judgment is reversed, and the case is remanded

for further proceedings consistent with this opinion.

DELIVERED: June 11, 2014

PUBLISH