### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00586- CR

Terr ell Delone Maxwell, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 08- 3004 90, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Terr ell Delone Maxwell of the offe nse of capital murder. 1
Maxwell was 17 y ear s old at the time he committed the offe nse and thus was inel i g ible for the
death penalty

. Consequently , punishment was assessed at life imprisonment without the possibili ty

2
of parole , which at the time of Maxwell’s conviction was the mandatory sentenc e fo r i n d i v i duals
convicted of

a ca pital felony

in case s in which the State did not seek the de ath pena lty

. 3

See Tex. P enal Code § 19.03( a)( 2). 1
See R oper v. Simm ons , 543 U.S. 551, 578 (2005). 2
S ee Act of May 28, 2005, 79th L eg ., R.S., ch. 787, § 1, 2005 Tex. Gen. L aws 270 5 3 (ame nded 2009 and 2013) (cur rent ve rsion at Tex. Penal Code § 12.31(a) ).After t h i s Court aff irmed Maxwell’s judgme nt of conviction, the United States 4 Supreme Court held that a sentenc e of “manda tory life without parol e fo r t hose under the ag e of

1 8 at the t ime of t heir crimes violates the Ei g hth Amendment’s prohibiti on on ‘cr uel and unus u al punishments.’” Subsequently , Maxwell obtained habea s-cor pus relief from the Court of Criminal 5 Appea ls, which vacated Maxwell’s sentenc e and rema n d ed t h e case to the district court “for
further sentenc ing proce eding s to permit the fac tfinder to assess applicant’ s sentenc e at (1) life with the pos sibili ty of parole .

. . or (2) life wit hout p ar o l e afte r consideration of applicant’s individual conduct, circumstance s, and chara cter .” Upon remand, the di stri ct court, afte r observing that the 6

State was no longe r seeking a sentenc e of life without parole , instead s en t en ce d Maxwell to life imprisonment with the possibi lity of par ole. This appea l followed. 7

See Maxwell v. State , No. 03-09-00027- CR, 2010 Tex. App. L EXIS 9 0 3 6 , at *28 4 (Tex. App.—Austin Nov. 12, 2010, pet. ref ’d) ( mem. op., not desig nated f or publication).
Miller v. Alabama , 132 S. Ct . 2455, 2460 (2012). 5 Ex parte M

axwell , 424 S.W .3d 66, 76 (Tex. Crim. App. 2014). 6
The State has filed a motion to dismiss the appea l, asser ting t h at M ax we l l ’s notice of 7 appea l was untimely filed. Maxwell’s sentenc e was imposed on Aug ust 8, 2 0 1 4 , m ak ing his notice of appea l due on or befor e September 8, 2014. See Tex. R. App. P. 26.2(a) (1). As a g ener al rule, “a notice of appea l is ‘filed’ when it is phy sically delivere d to, and rec eived by , the cler k of the trial court.” Castil lo v. State , 369 S.W .3d 196, 198 (Tex. Crim. App. 2012). Maxwell’s notice of appea l was file-stampe d by the district cler k on September 11, 2014, whi ch i s b ey ond the 30-day filing de adline. Howeve r, a well-e stablished exception to the phy sical-de livery require ment is the mailbox rule, “which applies in both civil and criminal case s and provides that a document rec eived within ten day s afte r the filing deadline is considere d timely filed if it was ‘sent to the proper cler k’ thr o u gh t he United States Postal Service ; place d in a ‘prope rly addre ssed,’ stamped envelope ; and deposited in the mail on or befor e the last day of filing.” Taylor v. State , 424 S.W .3d 39, 43-44 (Tex. Crim. App. 2014) (citing Tex. R. App. P. 9.2( b)). Moreove r, the Court of Criminal Appe als has adopte d the “prisoner mailbox rule,” concluding that “the plea dings of pro se inmates sha ll be deeme d filed at the time the y are delivere d to prison authorities for f orwa rding to the court c lerk.” Campbell v. State , 320 S.W .3d 338, 344 (Tex. Crim. App. 201 0). Maxwell’s notice of appea l
2I n his sole issue on appea l, Maxwe ll asser ts that his sentenc e of life imprisonment
with the possibili ty of parole violates the Eig hth Amendment prohibition ag ainst crue l and unusual punishment. I n Maxwell’s view, his ag e at the time he committed the off en s e en t i t l ed him to a 8 punishment hear ing at which mitigating evidenc e conce rning his individual conduct, circ umstances,
and cha rac ter c ould be consider ed.
A simil ar contention has alre ady been reje cted by the Court of Cr i m i nal Appea ls.

I n Lewis v. State , a juvenile defe ndant was convicted of capital murder an d wa s assessed a mandatory sentenc e of life i m prisonment without the pos sibili ty of parole. Be cause his sentenc e 9

was mandatory , L ewis was not aff orded the opportunity to p re s en t mitigating evidenc e at his punis h m en t hear ing. L ewis’s conviction was affirmed on appea l. Howeve r, following Miller , 1 0 1 1
the appellate court g rante d L ew i s ’s motion for rehe aring and ref ormed his sentenc e to life

appea rs to have been filed pro se while he was in jail, and the cer tificate of service indicates that he delivere d his notice of appea l to prison officia ls for mailing on September 8, 2014, the last day of filing. O n this recor d, we c onclude that Maxwell’s notice of appea l was timely filed and ove rrule the State’s motion to dismiss

. See Taylor , 424 S.W .3d at 43-47; Campbell , 320 S.W .3d at 342-44;
see also Harkc om v. State , 484 S.W .3d 432, 434 (Tex. Crim. App. 2016) (“The Rules of Appellate Procedur e should be cons t ru ed re as o n ably , y et liberally , so that the rig ht to appea l is not lost by imposing re quirements not absolutely nece ssary

to effe ct the purpose of a r ule.”)

. See U.S. Const. amend. VI I I

. 8
428 S.W .3d 860, 861 (Tex. Crim. App. 2014). 9
Id . at 862. 1 0 See supra n.5. 1 1
3imprisonment. L ewis filed a petition f or discre tionary

revie w, urg ing tha t his reforme d sentenc e 1 2

was unc onstitut ional “bec ause Miller require s individualiz ed sente ncing of juvenile off ender s.” 1 3
The Court of Criminal Appea ls disag ree d. Obs er v i ng that the holding in Miller
“wa s narr ow,” the c ourt conc luded that “ Miller does not forbid manda tory sentenc ing sc hemes.” 1 4

I t expl ained:

The s entencing scheme in Miller was unconstitutional beca use it denied juveniles convicted of murder all possibili ty of parole , leaving them no opportunity or incentive for reha

bilitation. L ife in prison wit h t h e p o s s i bility of parole leave s a route for juvenile offender s to prove that they have chang ed while also assess ing a punishment that the L eg islature has deemed appropria te i n light of the fa ct that the juvenile took someone’s life under spe cified c ircumstance s. 1 5

The court added, “

Miller does not entitle all juvenile offe nd ers to individualiz ed sentenc ing. I t require s an individualiz ed hear ing only when a juvenile can b e sentenc ed to life without the possibili ty of parole .” The court conclude d that the holding in Miller was “limited to a prohibition 1 6

on mandatory life without parole for juvenile offe nders.” Be cause Mill er did not prohibit a 1 7

Id

. 1 2
Id . at 863. 1 3
Id

. 1 4
Id

. 1 5
Id

. 1 6
Id . at 864. 1 7
4mandatory sentenc e of life with the possibili ty of parole , the court held that L ewis was not entitled

to a punishment hear ing. 1 8

I n this case , as in Lewis , Maxwell was sentenc ed to life imprisonme n t wi t h
the possibili ty of parole

. Acc ording ly , consistent with Lewis and subsequent opinions that have
followed Lewis , we conclude that Maxwell was not entitled to an individuali z ed punishment
hear ing. 1 9
Maxwell further contends that his sentenc e of life imprisonment with the possibili ty
of parole amounts to a “de fa ct o l i fe s entenc e.” Maxwell, who will be elig ible for parole afte r serving 40 y ear s of his sentenc e, asser ts that it is improbable that the Boa rd of Pardons and Paroles 2 0
will actua lly rele ase him on parole once he become s elig ible. Howeve r, as the State observes, “[b] eca use t he probability of parole necessar ily encompa sses [t he] fac tor of l ife ex p ec t an cy and a

Id

. 1 8
See id .; see also Turner v. State , 443 S.W .3d 128, 129 (Tex. Crim. App. 2014) (following 1 9 Lewis and reve rsi n g d ec i s i o n by court of appea ls that had rema nded case to trial court for individualiz ed sentenc ing hear ing; holding that, “contr ary to appellant’ s arg ument, he is not entitled to an individualiz ed sentenc ing hear ing. He i s o n l y en titled to have his sentenc e ref ormed from life without parole to life with the possibili ty of parole .”); Ga rza v. State , No. 04-15-00456- CR, 2016 Tex. App. L EXI S 2444, at *4-7 (Tex. App.—San Antonio Mar. 9, 2016, pet. filed) (mem. op., not desig nated for publication) (following Lewis ); Henry v. State , No. 05-14-00197- CR, 2015 Tex. App. L EXI S 7151, at *3-5 (Tex. App.—Dallas J uly 10, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (same) ; W ilson v. State , No. 14-14-00015- CR, 2015 Tex. App. L EXI S 3818, at *3-4 (Tex. Ap p
. — Ho uston [14t h Dist.] Apr. 16, 2015, pet. ref ’d) (mem. op., not desig nated for publication) (sa me).

See Tex. Gov’t Code § 508.145(b) (“An i n m at e serving a life sentenc e under 2 0 Section 12.31(a) (1), Penal Code, for a capital fe l o n y i s n o t elig ible for rele ase on parole until the actua l cale nd ar t i me the inmate has serve d, without consideration of g ood conduct time, equals 40 cale ndar y ear s.”).

5host of other varia bles, any conclusions about the probability of the appellant being parole d deca des
from now would nece ssarily be highly specula tive.” We w ill not eng ag e in such spec ulation here

. Moreove r, even if we wer e to conclude that Maxwell’s eventua l rele ase on parole was improbable,
the Supreme Court in Miller did not require that parole be “proba ble”; the Court simply require d that parole be “possible.” Maxwell’s sentenc e allows for that possibili ty

. Acc ording ly , on this rec ord, 2 1

we cannot conclude that Maxwell’s sentenc e violat es t h e E ighth Amendment prohibition ag ainst

crue l and unusual punishment.

We overrule Maxwell’s sole issue.

CONCLUSION
We affir m the judgme nt of conviction.

__________________________________________ Bob Pembe rton, J ustice

Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field
Affir med Filed: Aug ust 3, 2016
Do Not Publish

See Miller , 132 S. Ct. at 2469, 2475; see also Lewis , 428 S.W .3d at 863 (“The sentenc ing 2 1 scheme in Miller was unconstitutional beca use it denied juveniles convicted of murder all possibili ty of par ole, leaving them no opportunity or ince ntive for r ehabilitation.”).
6