Petition for Writ of Certiorari — Johnny Joe Avalos, Petitioner v. Texas

APPENDIX A

Warning

As of: May 16, 2022 6:34 PM Z

Avalos v. State

Court of Appeals of Texas, Fourth District, San Antonio

June 3, 2020, Delivered; June 3, 2020, Filed

Nos. 04-19-00192-CR & 04-19-00193-CR

Reporter

616 S.W.3d 214 *; 2020 Tex. App. LEXIS 4118 **; 2020 WL 2858867

argues, cases

John Joe AVALOS, Appellant v. The

STATE of Texas, Appellee

Case Summary

Subsequent History: Opinion withdrawn

by, Substituted opinion at, On

reconsideration by, En banc, Remanded by

Avalos v. State, 616 S.W.3d 207, 2020 Tex.

App. LEXIS 10310, 2020 WL 7775186 (Tex.

App. San Antonio, Dec. 30, 2020)

Prior History: [**1] From the 437th

Judicial District Court, Bexar County,

Texas. Trial Court Nos. 2016-CR-10374,

2018-CR-7068.

Honorable

Lori

I.

Valenzuela, Judge Presiding.

Disposition: AFFIRMED.

Core Terms

parole, life sentence, disabled person,

juveniles, sentence, cruel, death penalty,

disabled, automatic, offenders, decisions,

adults, individualized sentencing,

unconstitutionally, juvenile offender,

plurality, court of appeals, proportionality,

mitigating, appeals, decency, objective

evidence, unusual punishment, capital

murder, culpability, quotations, evolving,

Overview

HOLDINGS: [1]-The court held that the

U.S. Supreme Court's decisions in Atkins,

Roper, Graham, and Miller did not compel

the conclusion that Tex. Penal Code Ann. §

12.31(a)(2) was unconstitutional as applied

to intellectually disabled persons. Having

been provided no objective evidence of

evolving standards of decency required to

analyze whether the punishment was

unconstitutional, the court could not say

defendant's sentences of an automatic life

sentence without parole for a person were

unconstitutionally cruel and unusual

punishments.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Jorge Aristotelidis

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616 S.W.3d 214, *214; 2020 Tex. App. LEXIS 4118, **1

Criminal Law &

Procedure > ... > Murder > Capital

Murder > Penalties

HN1[ ] Capital Murder, Penalties

Capital life is a reference to Texas Penal

Code Ann. § 12.31(a)(2)'s requirement of an

automatic life sentence without parole for a

person convicted of capital murder, when

the death penalty is not imposed. §

12.31(a)(2).

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

to the offense. Proportionality is informed

by objective evidence of contemporary

values. The clearest and most reliable

objective evidence of contemporary values

is the legislation enacted by the country's

legislatures. A court must also consider

reasons for agreeing or disagreeing with

their judgment in light of evolving standards

of decency.

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

HN2[ ] Sentencing, Cruel & Unusual

Punishment

HN4[ ] Sentencing, Cruel & Unusual

The Eighth Amendment to the U.S. Punishment

Constitution prohibits cruel and unusual

punishments. U.S. Const. amend. VIII. Tex.

Const. art. I, § 13 also prohibits

punishments that are cruel and unusual.

There is no significance in the difference

between the Eighth Amendment's cruel and

unusual phrasing and the cruel or unusual

phrasing of Art. I, § 13.

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

In Atkins v. Virginia, the U.S. Supreme

Court held the imposition of the death

penalty on an intellectually disabled person

is unconstitutionally cruel and unusual.

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

HN3[ ] Sentencing, Cruel & Unusual HN5[ ] Sentencing, Cruel & Unusual

Punishment

Punishment

The cruel and unusual standard is based on The U.S. Supreme Court held that

a precept of justice that punishment for a sentencing intellectually disabled persons to

crime should be graduated and proportioned death did not substantially further two bases

Jorge Aristotelidis

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for imposing the death penalty: retribution

and deterrence. With respect to retribution,

the Supreme Court explained that because

only the most deserving of execution are put

to death, an exclusion for the intellectually

disabled is appropriate. With respect to

deterrence, the Supreme Court explained the

availability of the death penalty for

intellectually disabled persons, who often

act impulsively, would likely not deter them

from murderous conduct, and excluding

intellectually disabled persons from

eligibility for the death penalty would not

undermine the deterrent effect the death

penalty has on others. The Supreme Court

also considered that intellectually disabled

persons generally face a special risk of

wrongful execution due to an increased risk

of false confessions, they generally have

lesser abilities to communicate with counsel

and to make a persuasive showing of

mitigation to the jury, and their demeanor

may create an unwarranted impression of

lack of remorse for their crimes. The

Supreme Court therefore held the death

penalty is cruel and unusual when imposed

on an intellectually disabled person.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

unconstitutionally cruel and unusual when

imposed on a juvenile.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

HN7[ ] Sentencing, Capital Punishment

Three general differences between juveniles

under 18 and adults demonstrate that

juvenile offenders cannot with reliability be

classified among the worst offenders. The

U.S. Supreme Court noted juveniles: (1)

lack maturity and have an underdeveloped

sense of responsibility; (2) are more

vulnerable or susceptible to negative

influences and outside pressures, including

peer pressure; and (3) have a relatively

unformed character. The Supreme Court

explained the penological justifications for

the death penalty apply to juveniles with

lesser force than to adults. Quoting Atkins,

the Supreme Court concluded that the same

conclusions follow from the lesser

culpability of the juvenile offender.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN6[ ] Sentencing, Capital Punishment

HN8[ ] Sentencing, Age & Term Limits

In Graham v. Florida, the U.S. Supreme

In Roper v. Simmons, the U.S. Supreme Court extended Eighth Amendment

Court held the death penalty is protections for juveniles in the context of

Jorge Aristotelidis

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automatic life sentences without parole for In Miller v. Alabama, the U.S. Supreme

nonhomicide offenses.

Court extended Graham to include life

sentences without parole for homicide

offenses, holding that mandatory life

Criminal Law & Procedure > Juvenile

without parole for those under the age of 18

Offenders > Sentencing > Capital

at the time of their crimes violates the

Punishment

Eighth Amendment's prohibition on cruel

and unusual punishments. The Supreme

HN9[ ] Sentencing, Capital Punishment

Court noted that Roper and Graham

The U.S. Supreme Court has stated that life establish that children are constitutionally

without parole sentences share some different from adults for purposes of

characteristics with death sentences that are sentencing and explained that deciding that

shared by no other sentences. The Supreme a juvenile offender forever will be a danger

Court explained a life sentence without to society would require making a judgment

parole denies all hope of release and means that he is incorrigible—but incorrigibility is

good behavior and character improvement inconsistent with youth. The Supreme Court

are immaterial. The Supreme Court also concluded juveniles are entitled to an

explained such a punishment is especially individualized sentencing determination in

harsh for juveniles who will on average which a judge or jury must have the

to

consider

mitigating

serve more years and a greater percentage of opportunity

life in prison than an adult offender. A 16- circumstances before imposing the harshest

year-old and a 75-year-old each sentenced possible penalty for juveniles.

to life without parole receive the same

punishment in name only.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law & Procedure > Criminal

Offenses > Homicide, Manslaughter &

Murder

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN10[ ]

Limits

Sentencing, Age & Term

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN11[ ] Sentencing, Cruel & Unusual

Punishment

Not a single U.S. Supreme Court decision

has held an automatic life sentence without

parole is unconstitutionally cruel and

unusual when imposed on an intellectually

disabled person.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Jorge Aristotelidis

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Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

HN12[ ]

Punishment

Sentencing,

Capital

Although some of the reasoning behind the

U.S. Supreme Court's decision in Miller

might apply to intellectually disabled

defendants as well as it does to juveniles,

significant portions of the reasoning do not.

These reasons include that (1) juvenile

offenders have greater prospects for reform

than adult offenders, (2) the character of

juvenile offenders is less well formed and

their traits less fixed than those of adult

offenders, (3) recklessness, impulsivity, and

risk taking are more likely to be transient in

juveniles than in adults, (4) a sentence of

life without parole is harsher for juveniles

than adults because of their age, and (5) a

sentence of life without parole for juveniles

is akin to a death sentence because of their

age. The court knows of no reason to

believe that these factors apply to

intellectually disabled offenders.

Counsel: For APPELLANT: Jorge G.

Aristotelidis, San Antonio, TX.

For APPELLEE: Andrew Warthen,

Assistant Criminal District Attorney, San

Antonio, TX.

Judges: Opinion by: Luz Elena D. Chapa,

Justice. Dissenting Opinion by: Rebeca C.

Martinez, Justice. Sitting: Rebeca C.

Martinez, Justice, Patricia O. Alvarez,

Justice, Luz Elena D. Chapa, Justice.

Opinion by: Luz Elena D. Chapa

Opinion

[*214] In these two appeals, we are

presented with a single issue of first

impression: When an intellectually disabled

person is convicted of capital murder, and

the State does not seek the death penalty, is

an automatic life sentence without parole

unconstitutionally

[*215]

cruel and

unusual? Based on the record and

arguments before us, we cannot say the

imposition of such a punishment is

unconstitutional as applied to all

intellectually disabled persons in every case.

We therefore affirm the trial court's

judgments.

PROCEDURAL BACKGROUND

Under a plea agreement, Johnny Joe Avalos,

an adult, pled guilty to two charges of

capital murder. The State did not seek the

death penalty. In the plea agreements,

Avalos and the State mutually agreed and

recommended that punishment be assessed

at "capital life." HN1[ ] "Capital life" is a

reference to Texas Penal Code section

12.31(a)(2)'s requirement [**2] of an

automatic life sentence without parole for a

person convicted of capital murder, when

the death penalty is not imposed. See Tex.

Penal Code § 12.31(a)(2).

Avalos filed motions challenging the

constitutionality of his automatic life

sentences without parole. He argued the

Supreme Court of the United States'

decisions under the Eighth Amendment

prohibit the imposition of such a sentence

Jorge Aristotelidis

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on intellectually disabled persons. The trial

court denied Avalos's motions, accepted his

guilty pleas, found him guilty of both

capital murder offenses, and pronounced his

life sentences in open court. Avalos timely

perfected appeal.1

THE CONSTITUTIONALITY OF SECTION

12.31(A)(2) AS APPLIED TO

INTELLECTUALLY DISABLED PERSONS

unusual' phrasing of Art. I, Sec. 13 of the

Texas Constitution." Cantu v. State, 939

S.W.2d 627, 645 (Tex. Crim. App. 1997).

HN3[ ] The "cruel and unusual" standard

is based on "a precept of justice that

punishment for [a] crime should be

graduated and proportioned to [the]

offense." Atkins v. Virginia, 536 U.S. 304,

311, 122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002) (internal quotation marks omitted).

Proportionality is informed by objective

evidence of contemporary values. Id. at 312.

"[T]he clearest and most reliable objective

evidence of contemporary values is the

legislation enacted by the country's

legislatures." Id. A court must also

"consider reason[s] for agreeing or

disagreeing with their judgment" in light of

"evolving standards of decency." Id. at 313,

321.

Avalos's sole issue is whether section

12.31(a)(2)'s requirement of an automatic

life sentence without parole for capital

murder, when the death penalty is not

imposed, is unconstitutionally cruel and

unusual as applied to intellectually disabled

persons. Avalos argues the decisions of the

Supreme Court of the United States under

the Eighth Amendment compel the

conclusion that section 12.31(a)(2) is

unconstitutional as applied to intellectually The Supreme Court of the United States, the

Texas Court of Criminal Appeals, [*216]

disabled persons.

and this court have not yet addressed

whether an automatic life sentence without

A. Cruel & Unusual Punishments

parole, imposed upon an intellectually

disabled person, is unconstitutionally cruel

HN2[ ] The Eighth Amendment to the U.S.

and usual. Avalos argues such a conclusion

Constitution prohibits cruel and unusual

logically follows from the Supreme Court's

punishments. U.S. Const. amend. VIII.

Eighth Amendment decisions. Because there

Article I, section 13, of the Texas

is no significant difference between the

Constitution also prohibits punishments that

Texas Constitution and U.S. Constitution on

are cruel and unusual. Tex. Const. art. I, §

this issue, we address Avalos's issue in light

13 [**3] . There is "no significance in the

of the Supreme Court's decisions. See

difference between the Eighth Amendment's

Cantu, 939 S.W.2d at 645. We also consider

'cruel and unusual' phrasing and the 'cruel or

the decisions of other courts applying these

Eighth Amendment decisions for [**4] their

persuasive value.

1 After oral argument, we granted the parties' joint motion to abate

these appeals for the trial court to make an express finding as to

whether Avalos is intellectually disabled. The trial court made

findings in both cases that Avalos is intellectually disabled.

Jorge Aristotelidis

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B. Relevant Supreme Court Decisions

therefore held the death penalty is cruel and

unusual when imposed on an intellectually

HN4[ ] In Atkins v. Virginia, the Supreme disabled person. Id. at 321.

Court held the imposition of the death

penalty on an intellectually disabled person Although the Supreme Court has not

is unconstitutionally cruel and unusual. 536 considered the imposition of an automatic

U.S. at 321. The Supreme Court first life sentence without parole as applied to

considered the acts of several state intellectually disabled persons, Avalos

legislatures to exclude intellectually argues the Supreme Court's decisions

disabled persons from eligibility for the regarding juveniles guides our resolution of

death penalty. Id. at 313-17. HN5[ ] The these appeals. HN6[ ] In Roper v.

Supreme Court also held that sentencing Simmons, the Supreme Court held the death

intellectually disabled persons to death did penalty is unconstitutionally cruel and

not substantially further two bases for unusual when imposed on a juvenile. 543

imposing the death penalty: retribution and U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed.

deterrence. Id. at 318-19. With respect to 2d 1 (2005). As in Atkins, the Supreme

retribution, the Supreme Court explained Court began by considering "[t]he evidence

that because "only the most deserving of of national consensus against the death

execution are put to death, an exclusion for penalty for juveniles." Id. at 564. HN7[ ]

the [intellectually disabled] is appropriate." "Three general differences between

Id. at 319. With respect to deterrence, the juveniles under 18 and adults demonstrate

Supreme Court explained the availability of that juvenile offenders cannot with

the death penalty for intellectually disabled reliability be classified among the worst

persons, who often act impulsively, would offenders." Id. at 569. The Supreme Court

likely not deter them from "murderous noted juveniles: (1) lack maturity and

conduct," and excluding intellectually have [**6] an underdeveloped sense of

disabled persons from eligibility for the responsibility; (2) "are more vulnerable or

death penalty would not undermine the susceptible to negative influences and

deterrent effect the death penalty has on outside pressures, including peer pressure";

others. Id. at 319-20. The Supreme Court and (3) have a relatively unformed

also considered that intellectually disabled character. See id. at 569-70. The Supreme

explained

"the

penological

persons [**5] generally "face a special risk Court

of wrongful execution" due to an increased justifications for the death penalty apply to

risk of false confessions, they generally [juveniles] with lesser force than to adults."

have lesser abilities to communicate with Id. at 571. Quoting Atkins, the [*217]

counsel and to make a persuasive showing Supreme Court concluded, "The same

of mitigation to the jury, and "their conclusions follow from the lesser

demeanor may create an unwarranted culpability of the juvenile offender." Id.

impression of lack of remorse for their

crimes." Id. at 320-21. The Supreme Court HN8[ ] In Graham v. Florida, the

Supreme Court extended Eighth Amendment

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protections for juveniles in the context of

automatic life sentences without parole for

nonhomicide offenses. 560 U.S. 48, 74, 130

S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In

Graham, the Supreme Court relied on

Roper to explain the diminished culpability

of juveniles in light of the penological

interests served by a life sentence without

parole. See id. at 67-69, 71-75. HN9[ ] The

Supreme Court stated that "life without

parole sentences share some characteristics

with death sentences that are shared by no

other sentences." Id. at 69. The Supreme

Court explained a life sentence without

parole denies all hope of release and "means

. . . good behavior and character

improvement are immaterial." Id. at 71. The

Supreme Court also explained such a

punishment is "especially [**7] harsh" for

juveniles who "will on average serve more

years and a greater percentage of . . . life in

prison than an adult offender. A 16-year-old

and a 75-year-old each sentenced to life

without parole receive the same punishment

in name only." Id. at 70.

will be a danger to society would require

mak[ing] a judgment that [he] is

incorrigible—but

incorrigibility

is

inconsistent with youth." Id. at 471-73

(internal quotation marks omitted). The

Supreme Court concluded juveniles are

entitled to an individualized sentencing

determination in which "a judge or jury

must have the opportunity to consider

mitigating circumstances before imposing

the harshest possible penalty for juveniles."

Id. at 489. Avalos argues intellectually

disabled persons [**8] are entitled to the

same type of individualized sentencing

determination.

The State argues we are bound by the

Supreme Court's decision in Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680,

115 L. Ed. 2d 836 (1991). In Harmelin, the

majority of the Supreme Court concluded

the imposition of an automatic life sentence

without parole for the offense of possession

of 650 grams of cocaine was not cruel and

unusual. Id. at 961, 996. The Harmelin

plurality did not consider a proportionality

review and considered the originally

intended meaning of "cruel and unusual" in

the Eighth Amendment. See id. at 994-95.

The plurality's approach differed from the

approach taken in Justice Kennedy's

concurrence, in which he reached the same

conclusion as the plurality, except by

emphasizing the proportionality of the

sentence as opposed to the Framers' original

intent. Id. at 996-1001 (Kennedy, J.,

concurring).

HN10[ ] In Miller v. Alabama, the

Supreme Court extended Graham to include

life sentences without parole for homicide

offenses, "hold[ing] that mandatory life

without parole for those under the age of 18

at the time of their crimes violates the

Eighth Amendment's prohibition on 'cruel

and unusual punishments.'" 567 U.S. 460,

465, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). The Supreme Court noted, "Roper

and Graham establish that children are

constitutionally different from adults for

purposes of sentencing" and explained that

"[d]eciding that a juvenile offender forever C. Other Relevant Authorities

Jorge Aristotelidis

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The parties also rely on decisions from other

courts. Avalos principally relies on People

v. Coty, 2018 IL App (1st) 162383, 425 Ill.

Dec. 47, 110 N.E.3d 1105 (Ill. App. Ct.

2018). In Coty, a jury convicted an

intellectually disabled defendant as a repeat

offender for sexual [*218] assault of a

minor. Id. at 1107-08. An automatic life

sentence without parole was assessed and,

on appeal, the court of appeals reversed the

sentence. Id. at 1108. The court held an

automatic life sentence without parole was

not facially unconstitutional [**9] under

the

Eighth

Amendment,

but

was

unconstitutional under Illinois's state

constitution as applied to the defendant due

to his intellectual disability. See id. On

remand, the defendant was resentenced to

50 years in prison. See id. In the defendant's

second appeal, the court of appeals noted

the evolution in standards of decency

required that the trial court consider

evidence of the defendant's intellectual

disability in sentencing. Id. at 1121-22. The

court of appeals in Coty saw no reason why

"the prohibition against the imposition of

discretionary de facto life sentences without

the procedural safeguards of Miller and its

progeny should not be extended to

intellectually disabled persons." Id. at 1122.

The State relies on Parsons v. State, in

which the Tyler court of appeals considered

and rejected the very same position Avalos

takes in these appeals. See No. 12-1600330-CR, 2018 Tex. App. LEXIS 5898,

2018 WL 3627527, at *4-5 (Tex. App.—

Tyler July 31, 2018, pet. ref'd) (mem. op.,

not designated for publication). The Tyler

court reasoned that although there are some

similarities

between

juveniles

and

intellectually

disabled

persons,

the

differences are too significant to extend the

Supreme Court's precedents regarding

juveniles, specifically Miller's categorical

bar to an automatic life sentence [**10]

without parole, to intellectually disabled

persons. Id. The State also relies on

Modarresi v. State, in which the Houston

court of appeals relied on Harmelin to reject

a contention that section 12.31(a)(2) was

unconstitutional as applied to someone

suffering from "mental illness, particularly

post-partum depression associated with

Bipolar Disorder." 488 S.W.3d 455, 466

(Tex. App.—Houston [14th Dist.] 2016, no

pet.). The court in Modarresi noted the

Supreme Court in Harmelin held an

automatic life sentence without parole is

constitutional without exception. See id.

D. Analysis

Not a single Supreme Court decision

directly controls the resolution of these

appeals. Although the court of appeals in

Modarresi treated Harmelin as controlling

in all contexts, there is no indication that the

appellant in Harmelin was intellectually

disabled. In other words, Harmelin is not

controlling because it "had nothing to do

with [intellectually disabled persons]." Cf.

Miller, 567 U.S. at 481 (declining to extend

Harmelin to juveniles because "Harmelin

had nothing to do with children").

Furthermore, the Supreme Court in

Harmelin was able to reach a majority in its

ultimate holding, but the plurality and

concurrence disagreed as to the appropriate

legal principles and modes of constitutional

Jorge Aristotelidis

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interpretation, and [**11] the Supreme

Court later rejected the plurality's approach

in subsequent cases, including Atkins. As

one example, the Harmelin plurality

rejected proportionality as a consideration

and construed the Eighth Amendment's

phrase "cruel and unusual" considering the

original intent of the language as used in the

1700s. See 501 U.S. at 965 ("[T]he Eighth

Amendment contains no proportionality

guarantee."). In Atkins, the Supreme Court

considered proportionality and construed

the phrase "cruel and unusual" in "evolving

standards of decency" and "contemporary

values." See 536 U.S. at 311-12.

transient in juveniles than in adults, (4) a

sentence of life without parole is harsher

for juveniles than adults because of their

age, and (5) a sentence of life without

parole for juveniles is akin to a death

sentence because of their age. We know

of no reason to believe that these factors

apply

to

intellectually

disabled

offenders.

2018 Tex. App. LEXIS 5898, 2018 WL

3627527, at *5. This analysis accounts for

the Supreme Court's specific considerations

in Miller and Graham, such as the

difference in time actually served by a 16year-old and a 75-year-old for identical

"life" sentences, and the inconsistency of

incorrigibility with youth. See Graham, 560

U.S. at 70; Miller, 567 U.S. at 472-73.

Avalos's reasoning and the Illinois case he

cites, Coty, do not adequately account for

the significant differences between juvenile

offenders and adults identified by the

Supreme Court in Miller and Graham.

HN11[ ] Conversely, not a single Supreme

Court decision has held an automatic life

sentence

[*219]

without parole is

unconstitutionally cruel and unusual when

imposed on an intellectually disabled

person. Avalos's position therefore turns on

the strength of the analogy between

intellectually disabled persons and juveniles

under the Eighth Amendment. As to this

analogy, the Tyler court's analysis in We also note an additional point of

distinction. In Graham and Miller, as well

Parsons is persuasive:

as Atkins and other Eighth Amendment

HN12[ ] Although some of the cases, the Supreme Court considered the

reasoning behind the Court's decision in laws enacted by states' legislatures.

Miller might apply to intellectually Avalos [**13] did not provide the trial

disabled defendants as well as it does to court, and has not provided us, with any

juveniles, significant portions of the citations, discussion, or analysis of

reasoning do not. These reasons include objective evidence of evolving standards of

that (1) juvenile offenders have greater decency, such as the sentencing laws or

prospects for reform than [**12] adult practices of other states. See TEX. R. APP.

offenders, (2) the character of juvenile P. 38.1(i); Atkins, 536 U.S. at 311-12

offenders is less well formed and their (considering such objective evidence of

traits less fixed than those of adult evolving standards of decency). We

offenders, (3) recklessness, impulsivity, disagree with Avalos's specific contention

and risk taking are more likely to be on appeal, namely that the Supreme Court's

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decisions compel the conclusion that an

automatic life sentence without parole is

unconstitutional as applied to intellectually

disabled persons. Without the objective

evidence necessary to resolve Avalos's

Eighth Amendment issue, we cannot say, in

the first instance, that such a punishment is

unconstitutionally cruel and unusual under

either the U.S. Constitution or the Texas

Constitution.

CONCLUSION

We hold the Supreme Court's decisions in

Atkins, Roper, Graham, and Miller do not

compel the conclusion that Texas Penal

Code section 12.31(a)(2) is unconstitutional

as applied to intellectually disabled persons.

Having been provided no objective evidence

of evolving standards of decency required to

analyze whether the punishment here is

unconstitutional, we cannot say Avalos's

sentences are unconstitutionally cruel and

unusual punishments. We therefore

overrule [**14] Avalos's sole issue in these

appeals and affirm the appealed judgments.

Luz Elena D. Chapa, Justice

Dissent by: Rebeca C. Martinez

Dissent

DISSENTING OPINION

I dissent because the Constitution requires

individualized sentencing for intellectually

disabled defendants who face the most

serious penalty the State can impose on

them—a life sentence without parole.

Although this is a case of first impression,

our result should follow straightforwardly

from Atkins v. Virginia, 536 U.S. 304, 122

S. Ct. 2242, 153 L. Ed. 2d 335 (2002), and

the

Supreme

Court's

individualized

sentencing cases.

In Atkins, the Supreme Court barred the

execution

of

intellectually

disabled

individuals because the sentence is cruel

and unusual punishment within the meaning

of the Eighth Amendment. Atkins, 536 U.S.

at 321. This decision falls within a line of

cases striking down "sentencing practices

based on mismatches between the

culpability of a class of offenders and the

severity of a penalty." Miller v. Alabama,

567 U.S. 460, 470, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012); Graham v. Florida, 560

U.S. 48, 60-61, 130 S. Ct. 2011, 176 L. Ed.

2d 825 (2010). Central to the Court's

reasoning in these cases is "the basic

precept of justice that punishment for crime

should be graduated and proportioned to

both the offender and the offense." Miller,

567 U.S. at 469 (quotations omitted).

Intellectually disabled defendants are

"categorically less culpable than the average

criminal." Atkins, 536 U.S. at 316.1

Intellectually

disabled

individuals

"frequently know [**15] the difference

between right and wrong and are competent

to stand trial," but "by definition[,] they

have diminished capacities to understand

and process information, to communicate, to

1 It is undisputed that Avalos is intellectually disabled or "mentally

retarded," which is the term used in Atkins, which has since fallen

out of favor. See Atkins, 536 U.S. at 306; People v. Coty, 2018 IL

App (1st) 162383, 425 Ill. Dec. 47, 110 N.E.3d 1105, 1107 n.1 (Ill.

App. Ct. 2018).

Jorge Aristotelidis

Page 12 of 13

616 S.W.3d 214, *219; 2020 Tex. App. LEXIS 4118, **15

abstract from mistakes and learn from

experience, to engage in logical reasoning,

to control impulses, and to understand the

reactions of others." Id. at 318. These

impairments "make it less defensible to

impose the death penalty as retribution for

past crimes and less likely that the death

penalty will have a real deterrent effect."

Roper v. Simmons, 543 U.S. 551, 563, 125

S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (citing

Atkins, 536 U.S. at 319-20). Additionally,

by nature of their diminished faculties,

intellectually disabled defendants face an

enhanced possibility of false confessions

and a lessened ability to give meaningful

assistance to their counsel. Atkins, 536 U.S.

at 320-21.

defendants facing the most serious

penalties." Miller, 567 U.S. at 465. For

juveniles and the intellectually disabled, the

most serious penalty is life imprisonment

without parole; therefore, a life sentence

without parole for these offenders is

analogous to the death penalty. See id. at

470, 476-478; see also Graham, 560 U.S. at

69 ("[L]ife without parole is the second

most severe penalty permitted by law."

(quotations omitted)). As with a death

sentence, imprisonment until an offender

dies "alters the remainder of [the offender's]

life by a forfeiture that is irrevocable." See

Miller, 567 U.S. at 474-75 (quotations

omitted).2 Applying the analogy "makes

relevant . . . a second line of [Supreme

Court]

precedents,

demanding

Following Atkins, the Supreme Court individualized sentencing when imposing

decided that juvenile offenders, like the death penalty." See id. at 475.

intellectually disabled offenders, are in a

class of defendants that is "constitutionally Applying death-penalty precedent on

different" from other defendants for sentencing leads directly to the requirement

sentencing purposes. Miller, 567 U.S. at that a defendant facing the most serious

471. Members of each class of defendants penalty must have an opportunity to

have diminished culpability compared to advance mitigating [**17] factors and have

other offenders. See Roper, 543 U.S. at 570- those factors assessed by a judge or jury.

71; Atkins, 536 U.S. at 318-20. While See id. at 489 ("Graham, Roper, and our

differences certainly exist, this fundamental individualized sentencing decisions make

similarity makes the imposition of the death clear that a judge or jury must have the

penalty excessive for individuals [**16] in opportunity

to

consider

mitigating

each group. See Roper, 543 U.S. at 572-73;

Atkins, 536 U.S. at 321.

2 To be sure, a life sentence without parole may be "an especially

Acknowledging this fundamental similarity,

I would follow the course adopted by

Miller. The Supreme Court held in Miller,

with respect to juvenile defendants, that a

mandatory imposition of a life sentence

without parole "runs afoul of . . . [the]

requirement of individualized sentencing for

harsh punishment for a juvenile[, who] will on average serve more

years and a greater percentage of his life in prison than an adult

offender," but the difference in severity of the sentence when applied

to a juvenile compared to an adult is one of degree. See Graham, 560

U.S. at 70. In other respects, the disproportionality of the punishment

can be similar if mitigating factors are not considered. Diminished

culpability for juvenile offenders and intellectually disabled

offenders lessens the penological justifications for a sentence of life

imprisonment without parole, which can render the sentence

disproportionate. See id. at 71-74; Atkins, 536 U.S. at 318-20.

Jorge Aristotelidis

Page 13 of 13

616 S.W.3d 214, *219; 2020 Tex. App. LEXIS 4118, **17

circumstances before imposing the harshest

possible penalty for juveniles."); see also

Woodson v. North Carolina, 428 U.S. 280,

304-05, 96 S. Ct. 2978, 49 L. Ed. 2d 944

(1976) (plurality opinion) (holding that a

statute mandating a death sentence for firstdegree murder violated the Eighth

Amendment). Extending the reasoning, here,

requires that an intellectually disabled

individual be allowed an opportunity to

present mitigating evidence related to his

intellectual disability before the sentencer

may impose the most severe sentence of life

imprisonment without parole. By linking

precedent in this manner, I would impose a

requirement of individualized sentencing

without the need to review legislative

enactments. See Miller, 567 U.S. at 482-83

(explaining that because the Court's holding

did not categorically bar a penalty for a

class of offenders or type of crime and the

decision followed from precedent, the Court

was not required to scrutinize legislative

enactments).

In short, I dissent because precedent

controls. I would hold the trial court erred

by denying Avalos an opportunity to present

mitigating evidence [**18] before imposing

the maximum sentence of life imprisonment

without parole.

Rebeca C. Martinez, Justice

End of Document

Jorge Aristotelidis

APPENDIX B

Warning

As of: May 16, 2022 6:33 PM Z

Avalos v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 30, 2020, Delivered; December 30, 2020, Filed

Nos. 04-19-00192-CR & 04-19-00193-CR

Reporter

616 S.W.3d 207 *; 2020 Tex. App. LEXIS 10310 **; 2020 WL 7775186

Johnny Joe AVALOS, Appellant v. The

STATE of Texas, Appellee

REMANDED.

Notice: PUBLISH.

disabled, offenders, sentencing, parole,

automatic, cases, disabled person, life

sentence, juvenile, individualized

sentencing, death penalty, adult, cruel,

capital murder, harshest, culpability, en

banc, diminished, life imprisonment, trial

court, implications, mitigating, decisions,

appeals

Subsequent History: Petition for

discretionary review granted by In re

Avalos, 2021 Tex. Crim. App. LEXIS 322

(Tex. Crim. App., Mar. 31, 2021)

Petition for discretionary review granted by

In re Avalos, 2021 Tex. Crim. App. LEXIS

288 (Tex. Crim. App., Mar. 31, 2021)

Reversed by Avalos v. State, 635 S.W.3d

660, 2021 Tex. Crim. App. LEXIS 1202

(Tex. Crim. App., Dec. 15, 2021)

Core Terms

Case Summary

Overview

ISSUE: Whether Tex. Penal Code §

12.31(a)(2)'s requirement of an automatic

life sentence without parole for capital

murder, when the death penalty is not

imposed, is unconstitutionally cruel and

unusual as applied to intellectually disabled

persons. HOLDINGS: [1]-In its Opinion on

en banc reconsideration, the court agreed

Avalos v. State, 616 S.W.3d 214, 2020 Tex.

with defendant that U.S. Const. amend. VIII

App. LEXIS 4118, 2020 WL 2858867 (Tex.

prohibits the automatic imposition of the

App. San Antonio, June 3, 2020)

punishment of life imprisonment without

Disposition: REVERSED

AND parole for an intellectually disabled person;

Prior History: [**1] From the 437th

Judicial District Court, Bexar County,

Texas. Trial Court Nos. 2016-CR-10374,

2018-CR-7068.

Honorable

Lori

I.

Valenzuela, Judge Presiding.

Jorge Aristotelidis

Page 2 of 13

616 S.W.3d 207, *207; 2020 Tex. App. LEXIS 10310, **1

[2]-Tex. Penal Code Ann. § 12.31(a)(2) is

unconstitutional as applied to intellectually

disabled persons, and the trial court erred by

denying defendant an opportunity to present

mitigating evidence before imposing the

sentences of life imprisonment without

parole.

Outcome

Reversed and remanded.

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Postconviction

Proceedings > Parole

HN2[ ] Capital Punishment, Intellectual

Disabilities

LexisNexis® Headnotes

The harshest penalty allowed by law for an

intellectually disabled person is life

imprisonment without parole.

Criminal Law &

Procedure > ... > Murder > Capital

Murder > Elements

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law &

Procedure > ... > Murder > Capital

Murder > Penalties

HN1[ ] Capital Murder, Elements

When the death penalty is not imposed on a

person convicted of capital murder, Texas

law requires the automatic imposition of a

life sentence without parole. Tex. Penal

Code Ann. § 12.31(a)(2).

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Sentencing > Resentencing

HN3[ ] Fundamental Rights, Cruel &

Unusual Punishment

The U.S. Const. amend. VIII prohibits the

automatic imposition of the punishment of

life imprisonment without parole for an

Jorge Aristotelidis

Page 3 of 13

616 S.W.3d 207, *207; 2020 Tex. App. LEXIS 10310, **1

intellectually

disabled

person,

and,

consequently, we reverse the trial court's

judgments and remand for resentencing.

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN4[ ] Fundamental Rights, Cruel &

Unusual Punishment

The Eighth Amendment to the U.S.

Constitution prohibits cruel and unusual

punishments. U.S. Const. amend. VIII. Tex.

Const. art. I, § 13 prohibits punishments

that are cruel or unusual. Tex. Const. art. I,

§ 13. There is no significance in the

difference between the Eighth Amendment's

"cruel and unusual" phrasing and the "cruel

or unusual" phrasing of Tex. Const. art. I, §

13.

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

HN5[ ] Fundamental Rights, Cruel &

Unusual Punishment

In Atkins, the U.S. Supreme Court barred

the execution of intellectually disabled

individuals because the sentence is cruel

and unusual punishment within the meaning

of the Eighth Amendment. The Court later

explained that the decision falls within a

line of cases striking down sentencing

practices based on mismatches between the

culpability of a class of offenders and the

severity of a penalty. Central to the Court's

reasoning in these cases is the basic precept

of justice that punishment for crime should

be graduated and proportioned to both the

offender and the offense.

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

HN6[ ] Capital Punishment, Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

Intellectually disabled defendants are

categorically less culpable than the average

criminal. Intellectually disabled individuals

frequently know the difference between

right and wrong and are competent to stand

trial, but by definition, they have diminished

capacities to understand and process

information, to communicate, to abstract

Jorge Aristotelidis

Page 4 of 13

616 S.W.3d 207, *207; 2020 Tex. App. LEXIS 10310, **1

from mistakes and learn from experience, to

engage in logical reasoning, to control

impulses, and to understand the reactions of

others. These impairments make it less

defensible to impose the death penalty as

retribution for past crimes and less likely

that the death penalty will have a real

deterrent effect. Additionally, by nature of

their diminished faculties, intellectually

disabled defendants face an enhanced

possibility of false confessions and a

lessened ability to give meaningful

assistance to their counsel.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

HN7[ ] Sentencing, Age & Term Limits

different from other defendants for

sentencing purposes. Members of each class

of defendants have diminished culpability

compared to other offenders. While

differences exist, this fundamental similarity

makes the imposition of the death penalty

excessive for individuals in each group.

Therefore, the harshest penalty that can be

imposed on individuals in each group is life

imprisonment without parole. As with a

death sentence, imprisonment until an

offender dies alters the remainder of the

offender's life by a forfeiture that is

irrevocable.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

Criminal Law &

Procedure > Sentencing > Appeals > Pro

portionality & Reasonableness Review

HN8[ ] Sentencing, Age & Term Limits

Following Atkins, the U.S. Supreme Court

decided that juvenile offenders, like To be sure, a life sentence without parole

intellectually disabled offenders, are in a may be an especially harsh punishment for a

class of defendants that is constitutionally juvenile, who will on average serve more

Jorge Aristotelidis

Page 5 of 13

616 S.W.3d 207, *207; 2020 Tex. App. LEXIS 10310, **1

years and a greater percentage of his life in

prison than an adult offender, but the

difference in severity of the sentence when

applied to a juvenile compared to an adult is

one of degree. In other respects, the

disproportionality of the punishment can be

similar if mitigating factors are not

considered. Diminished culpability for

juvenile offenders and intellectually

disabled offenders lessens the penological

justifications for a sentence of life

imprisonment without parole, which can

render the sentence disproportionate.

Criminal Law &

Procedure > Sentencing > Imposition of

Sentence > Factors

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Postconviction

Proceedings > Parole

HN9[ ] Imposition of Sentence, Factors

The U.S. Supreme Court held in Miller that

a mandatory imposition of a life sentence

without parole on a juvenile runs afoul of

the

requirement

of

individualized

sentencing for defendants facing the most

serious penalties. A defendant facing the

most serious penalties must have an

opportunity to advance mitigating factors

and have those factors assessed by a judge

or jury.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Postconviction

Proceedings > Parole

HN10[ ]

Limits

Sentencing, Age & Term

As with juveniles—for whom Graham and

Roper and the U.S. Supreme Court's

individualized sentencing cases alike teach

that in imposing a State's harshest penalties,

a sentencer misses too much if he treats

every child as an adult,—so too with the

intellectually disabled; for them, the

Supreme Court's decisions in Atkins and its

individualized sentencing cases teach that a

sentencer misses too much in imposing a

State's harshest penalties if he treats every

intellectually disabled person as alike with

other adults. Because Tex. Penal Code Ann.

§ 12.31(a)(2) automatically imposes life

imprisonment without parole, which is the

harshest sentence an intellectually disabled

person faces, the statute is unconstitutional

as applied to intellectually disabled persons

based on the combined reasoning of Atkins

and the Court's individualized sentencing

cases, which entitle defendants to present

mitigating evidence before a trial court may

Jorge Aristotelidis

Page 6 of 13

616 S.W.3d 207, *207; 2020 Tex. App. LEXIS 10310, **1

impose the harshest possible penalty.

Counsel: For APPELLANT: Jorge G.

Aristotelidis, San Antonio, TX.

For APPELLEE: Andrew Warthen,

Assistant Criminal District Attorney, San

Antonio, TX.

Judges: Opinion by: Rebeca C. Martinez,

Justice. Dissenting Opinion by: Luz Elena

D. Chapa, Justice (joined by Sandee Bryan

Marion, Chief Justice and Patricia O.

Alvarez, Justice). Sitting en banc: Sandee

Bryan Marion, Chief Justice, Rebeca C.

Martinez, Justice, Patricia O. Alvarez,

Justice, Luz Elena D. Chapa, Justice, Irene

Rios, Justice, Beth Watkins, Justice, Liza A.

Rodriguez, Justice.

Opinion by: Rebeca C. Martinez

Opinion

[*208] OPINION ON EN BANC

RECONSIDERATION

REVERSED AND REMANDED

This court previously ordered en banc

reconsideration. We now withdraw our prior

opinions and judgment and substitute

today's opinions and judgment in their

stead.

HN1[ ] When the death penalty is not

imposed on a person convicted of capital

murder, Texas law [**2] requires the

automatic imposition of a life sentence

without parole. See Tex. Penal Code Ann. §

12.31(a)(2). Avalos was sentenced in

accordance with this statute, and,

consequently, the trial court did not consider

mitigating factors related to Avalos's

intellectual disability during the punishment

phase of trial.

HN2[ ] The harshest penalty allowed by

law for an intellectually disabled person is

life imprisonment without parole. See Atkins

v. Virginia, 536 U.S. 304, 321, 122 S. Ct.

2242, 153 L. Ed. 2d 335 (2002) (holding

that an intellectually disabled person may

not be sentenced to death). On appeal,

Avalos argues that the automatic imposition

of life sentences without parole amounted to

cruel and unusual punishment under the

Eighth Amendment to the United States

Constitution and Article I, section 13, of the

Texas Constitution because he was denied

an individualized assessment prior to the

imposition of these harshest penalties. HN3[

] We agree with Avalos that the Eighth

Amendment [*209] prohibits the automatic

imposition of the punishment of life

imprisonment without parole for an

intellectually

disabled

person,

and,

consequently, we reverse the trial court's

judgments and remand for resentencing.

INTRODUCTION

PROCEDURAL BACKGROUND

Johnny Joe Avalos, an adult, intellectually

disabled person, pled guilty and was Avalos pled guilty to two counts of capital

convicted of two counts of capital murder. murder. In his plea agreements, he and the

The State did not seek the death penalty. State mutually agreed and recommended

Jorge Aristotelidis

Page 7 of 13

616 S.W.3d 207, *209; 2020 Tex. App. LEXIS 10310, **2

that punishment be assessed at "capital life."

"Capital life" refers to section 12.31(a)(2) of

the

Texas

Penal

Code,

which

provides: [**3] "An individual adjudged

guilty of a capital felony in a case in which

the state does not seek the death penalty

shall be punished by imprisonment in the

Texas Department of Criminal Justice for . .

. life without parole, if the individual

committed the offense when 18 years of age

or older." Tex. Pen. Code Ann. §

12.31(a)(2). Avalos filed motions in the trial

court challenging the constitutionality of his

automatic sentences. He argued the

Supreme Court's decisions under the Eighth

Amendment

prohibit

the

automatic

imposition of a life sentence without parole

for an intellectually disabled person. The

trial court denied Avalos's motions,

accepted his guilty pleas, found him guilty

of both capital murder offenses, and

pronounced his life sentences in open court.

Avalos timely appealed.1

unusual as applied to intellectually disabled

persons. Although neither the United States

Supreme Court nor the Texas Court of

Criminal Appeals have addressed this issue

directly, we agree [**4] with Avalos that

the prohibition on the automatic imposition

of the punishment follows from the

Supreme Court's holdings in Atkins and the

Court's individualized sentencing cases.

THE CONSTITUTIONALITY OF SECTION

12.31(A)(2) AS APPLIED TO

INTELLECTUALLY DISABLED PERSONS

HN5[ ] In Atkins, the Supreme Court

barred the execution of intellectually

disabled individuals because the sentence is

cruel and unusual punishment within the

meaning of the Eighth Amendment. Atkins,

536 U.S. at 321. The Court later explained

that the decision falls within a line of cases

striking down "sentencing practices based

on mismatches between the culpability of a

class of offenders and the severity of a

penalty." Miller v. Alabama, 567 U.S. 460,

470, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012); see also Graham [*210] v.

Florida, 560 U.S. 48, 60-61, 130 S. Ct.

2011, 176 L. Ed. 2d 825 (2010). Central to

the Court's reasoning in these cases is "the

Avalos's sole issue on appeal is whether

section 12.31(a)(2)'s requirement of an

automatic life sentence without parole for

capital murder, when the death penalty is

not imposed, is unconstitutionally cruel and

1 After oral argument, we granted the parties' joint motion to abate

these appeals for the trial court to make an express finding as to

whether Avalos is intellectually disabled. Without objection by the

State, the trial court found that Avalos is intellectually disabled

under the standards announced by the Supreme Court. See Moore v.

Texas, 139 S. Ct. 666, 203 L. Ed. 2d 1 (2019); Moore v. Texas, 137

S. Ct. 1039, 197 L. Ed. 2d 416 (2017).

HN4[ ] The Eighth Amendment to the U.S.

Constitution prohibits cruel and unusual

punishments. See U.S. Const. amend. VIII.

Article I, section 13, of the Texas

Constitution prohibits punishments that are

cruel or unusual. Tex. Const. art. I, § 13.

Because there is "no significance in the

difference between the Eighth Amendment's

'cruel and unusual' phrasing and the 'cruel or

unusual' phrasing of Art. I, Sec. 13 of the

Texas Constitution," we address Avalos's

issue in light of Supreme Court decisions.

Cantu v. State, 939 S.W.2d 627, 645 (Tex.

Crim. App. 1997).

Jorge Aristotelidis

Page 8 of 13

616 S.W.3d 207, *210; 2020 Tex. App. LEXIS 10310, **4

basic precept of justice that punishment for

crime should be graduated and proportioned

to both the offender and the offense."

Miller, 567 U.S. at 469 (quotations

omitted). HN6[ ] Intellectually disabled

defendants are "categorically less culpable

than the average criminal." Atkins, 536 U.S.

at 316. Intellectually disabled [**5]

individuals "frequently know the difference

between right and wrong and are competent

to stand trial," but "by definition[,] they

have diminished capacities to understand

and process information, to communicate, to

abstract from mistakes and learn from

experience, to engage in logical reasoning,

to control impulses, and to understand the

reactions of others." Id. at 318. These

impairments "make it less defensible to

impose the death penalty as retribution for

past crimes and less likely that the death

penalty will have a real deterrent effect."

Roper v. Simmons, 543 U.S. 551, 563, 125

S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (citing

Atkins, 536 U.S. at 319-20). Additionally,

by nature of their diminished faculties,

intellectually disabled defendants face an

enhanced possibility of false confessions

and a lessened ability to give meaningful

assistance to their counsel. Atkins, 536 U.S.

at 320-21.

HN7[ ] Following Atkins, the Supreme

Court decided that juvenile offenders, like

intellectually disabled offenders, are in a

class of defendants that is "constitutionally

different" from other defendants for

sentencing purposes. Miller, 567 U.S. at

471.2 Members of each class of defendants

2 The State argues that we are bound by Harmelin v. Michigan, 501

U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), which held that

have diminished culpability compared to

other offenders. See Roper, 543 U.S. at 57071; Atkins, 536 U.S. at 318-20. While

differences exist, this fundamental similarity

makes the imposition of the death penalty

excessive for individuals [**6] in each

group. See Roper, 543 U.S. at 572-73;

Atkins, 536 U.S. at 321. Therefore, the

harshest penalty that can be imposed on

individuals in each group is life

imprisonment without parole. See Miller,

567 U.S. at 470, 476-78; cf. Graham, 560

U.S. at 69 ("[L]ife without parole is the

second most severe penalty permitted by

law." (quotations omitted)). As with a death

sentence, imprisonment until an offender

dies "alters the remainder of [the offender's]

life by a forfeiture that is irrevocable." See

Miller, 567 U.S. at 474-75 (quotations

omitted).3

[*211] HN9[ ] The Supreme Court held

in Miller that a mandatory imposition of a

life sentence without parole on a juvenile

"runs afoul of . . . [the] requirement of

individualized sentencing for defendants

the automatic imposition of a life sentence without parole for an

adult was not cruel and unusual punishment. See id. at 961, 996.

However, Harmelin does not control because it "had nothing to do

with [intellectually disabled persons]." Cf. Miller, 567 U.S. at 481

(declining to extend Harmelin to juveniles because "Harmelin had

nothing to do with children").

3 HN8[

] To be sure, a life sentence without parole may be "an

especially harsh punishment for a juvenile[, who] will on average

serve more years and a greater percentage of his life in prison than

an adult offender," but the difference in severity of the sentence

when applied to a juvenile compared to an adult is one of degree. See

Graham, 560 U.S. at 70. In other respects, the disproportionality of

the punishment can be similar if mitigating factors are not

considered. Diminished culpability for juvenile offenders and

intellectually disabled offenders lessens the penological justifications

for a sentence of life imprisonment without parole, which can render

the sentence disproportionate. See id. at 71-74; Atkins, 536 U.S. at

318-20.

Jorge Aristotelidis

Page 9 of 13

616 S.W.3d 207, *211; 2020 Tex. App. LEXIS 10310, **6

facing the most serious penalties." Miller,

567 U.S. at 465. A defendant facing the

most serious penalties must have an

opportunity to advance mitigating factors

and have those factors assessed by a judge

or jury. See id. at 489 ("Graham, Roper, and

our individualized sentencing decisions

make clear that a judge or jury must have

the opportunity to consider mitigating

circumstances before imposing the harshest

possible penalty for juveniles."); see also

Woodson v. North Carolina, 428 U.S. 280,

304-05, 96 S. Ct. 2978, 49 L. Ed. 2d 944

(1976) (plurality opinion) (holding that a

statute mandating a death sentence for firstdegree murder violated the Eighth

Amendment).

as applied to intellectually disabled persons

based on the combined reasoning of Atkins

and the Court's individualized sentencing

cases, which entitle defendants to present

mitigating evidence before a trial court may

impose the harshest possible penalty. See

id.; Miller, 567 U.S. at 475-76.4

CONCLUSION

We hold that section 12.31(a)(2) of the

Texas Penal Code is unconstitutional as

applied to intellectually disabled persons,

and that the trial court [**8] erred by

denying Avalos an opportunity to present

mitigating evidence before imposing the

sentences of life imprisonment without

parole. We remand these cases for further

HN10[ ] As with [**7] juveniles—for

proceedings consistent with this opinion.

whom "Graham and Roper and [the

Supreme Court's] individualized sentencing Rebeca C. Martinez, Justice

cases alike teach that in imposing a State's

harshest penalties, a sentencer misses too PUBLISH

much if he treats every child as an adult,"

Dissent by: Luz Elena D. Chapa

Miller, 567 U.S. at 477—so too with the

intellectually disabled; for them, the Dissent

Supreme Court's decisions in Atkins and its

individualized sentencing cases teach that a

sentencer misses too much in imposing a

DISSENTING OPINION

State's harshest penalties if he treats every

intellectually disabled person as alike with

other adults. See Atkins, 536 U.S. at 316 4

Because our ruling follows from precedent and does not

(explaining that society views intellectually categorically bar any penalty, there is no need to review legislative

disabled defendants as "categorically less enactments to discern "objective indicia of societal standards." See

Miller, 567 U.S. at 482-83 (explaining that because the Court's

culpable than the average criminal"). holding did not categorically bar a penalty for a class of offenders or

Because Texas Penal Code section type of crime and the decision followed from precedent, the Court

not required to scrutinize legislative enactments before holding a

12.31(a)(2) automatically imposes life was

practice unconstitutional under the Eighth Amendment); cf. Graham,

imprisonment without parole, which is the 560 U.S. at 61 (explaining that in cases adopting categorical rules,

harshest sentence an intellectually disabled "[t]he Court first considers 'objective indicia of society's standards,

as expressed in legislative enactments and state practice,' to

person faces, the statute is unconstitutional determine whether there is a national consensus against the

sentencing practice at issue.").

Jorge Aristotelidis

Page 10 of 13

616 S.W.3d 207, *211; 2020 Tex. App. LEXIS 10310, **8

DISSENTING OPINION ON EN BANC

RECONSIDERATION

Delivered and Filed: December 30, 2020

I respectfully dissent. For the reasons

explained in the panel's original majority

[*212] opinion,1 the current state of the

law compels us as an intermediary court to

conclude that when an intellectually

disabled adult commits capital murder,

imposing an automatic life sentence without

parole—without

an

individualized

sentencing determination as is required for

juveniles under Miller v. Alabama—is not

unconstitutionally cruel and unusual. See

567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d

407 (2012); Tex. Penal Code § 12.31(a)(2).

I write separately to: (1) briefly respond to

the en banc majority opinion; (2) note the

broad implications of the majority's holding;

and (3) recommend that the Texas

Legislature amend Penal Code section

12.31(a)(2) to account for intellectually

disabled offenders' diminished culpability.

RESPONSE TO THE EN BANC MAJORITY

The panel majority identified five

differences

between

juvenile

and

intellectually disabled adult offenders. The

en banc majority notes "differences exist,"

but does not identify those differences or

explain why most of these differences [**9]

are immaterial. In a footnote, the majority

1 I have attached the opinion as an appendix to this dissent. See, e.g.,

F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 703

(Tex. 2007) (O'Neil, J., dissenting) (attaching original opinion to new

dissenting opinion).

addresses the difference in actual time

served by a juvenile with a life sentence and

by an intellectually disabled adult with the

same sentence. See Miller, 567 U.S. at 470.

But the majority does not address the most

salient difference between the two classes of

offenders. Juveniles are generally expected

to develop intellectually, id. at 472-73, but

"[i]ntellectual disability is a permanent

condition." Bourgeois v. Watson, 977 F.3d

620, 637 (7th Cir. 2020) (citing Atkins v.

Virginia, 536 U.S. 304, 318, 122 S. Ct.

2242, 153 L. Ed. 2d 335 (2002)). If

juveniles are entitled to individualized

sentencing because the developmental

features of youth are transient, and a

juvenile's likelihood of future intellectual

development should be considered at a

punishment hearing, then it is unclear how

the

majority's

holding

flows

straightforwardly from Miller when

impaired cognitive functioning is an

"intellectual disability" only if the condition

is permanent. See 567 U.S. at 470.

THE BROAD IMPLICATIONS OF THE

MAJORITY'S HOLDING

Although the majority refers to the

"combined reasoning" of Miller v. Alabama

and Atkins v. Virginia, the majority extends

Miller to adult offenders, and extends Atkins

to non-death penalty cases. Because both

Supreme Court decisions are retroactive in

habeas proceedings, the majority's holding

could require unearthing [**10] numerous

capital murder cases for new punishment

hearings. See Montgomery v. Louisiana, 577

U.S. 190, 136 S. Ct. 718, 736, 193 L. Ed. 2d

599 (2016) (holding Miller is retroactive);

Jorge Aristotelidis

Page 11 of 13

616 S.W.3d 207, *212; 2020 Tex. App. LEXIS 10310, **10

Ex parte Maxwell, 424 S.W.3d 66, 72 n.25

(Tex. Crim. App. 2014) (stating Atkins is

retroactive).2 The implications for the

families of capital murder victims—families

who once had some closure through prior

legal proceedings—are considerable. The

majority's holding could also extend to

automatic life sentences [*213] without

parole for repeat violent sexual offenders

who are intellectually disabled. See Tex.

Penal Code § 12.42(c)(4). And, "when the

issue [of the defendant's intellectual

disability] is presented at trial," and a jury is

considering the death penalty, the majority's

holding could have implications for jury

instructions and other procedures in death

penalty cases, over which the Court of

Criminal Appeals has exclusive jurisdiction.

Gallo v. State, 239 S.W.3d 757, 770 (Tex.

Crim. App. 2007).

Additionally, by declaring a sentencing

statute unconstitutional as applied to a class

of offenders, the majority creates a conflict

with our sister court, which rejected this

very same challenge with detailed

reasoning. Parsons v. State, No. 12-1600330-CR, 2018 Tex. App. LEXIS 5898,

2018 WL 3627527, at *4-5 (Tex. App.—

Tyler July 31, 2018, pet. ref'd) (mem. op.,

not

designated

for

publication).

Consequently,

the

sentencing

of

intellectually

disabled

capital

offenders [**11] will differ depending

upon where in Texas the offense occurred.

And throughout the country, "courts faced

with Atkins- based challenges by

intellectually-disabled offenders have found

Atkins only applies to those offenders with

death penalty sentences." State v. Tuecke,

No. 15-0617, 884 N.W.2d 223, 2016 WL

1681524, at *8 (Iowa Ct. App. Apr. 27,

2016). The majority's holding therefore

brings Texas out of step with the growing

consensus of other jurisdictions, including

Iowa, Illinois, Pennsylvania, Oregon, and

the 7th and 11th Circuits.3

THIS LEGISLATURE SHOULD CONSIDER

REVISING SECTION 12.31(A)(2)

This issue is challenging because we must

set aside our personal beliefs about the

fairness of Texas's sentencing practices.

From a public policy perspective, Texas's

sentencing laws could and should be fairer

in considering intellectually disabled

offenders' diminished culpability. But

expressing the will of the people of Texas,

duly elected members of our legislature

balanced

various

public

policy

considerations and came to a different

conclusion through a democratic process.

2 See, e.g., Ex parte Gutierrez, WR-70,152-03, 2020 Tex. Crim. App.

3 See id. (citing United States v. Gibbs, 237 F. App'x 550, 568 (11th

Unpub. LEXIS 554, 2020 WL 6930823, at *1 (Tex. Crim. App. Nov.

25, 2020) (per curiam) (not designated for publication) (reforming a

death penalty sentence for an intellectually disabled offender to an

automatic life sentence); Ex parte Lizcano, WR-68,348-03, 2020 Tex.

Crim. App. Unpub. LEXIS 363, 2020 WL 5540165, at *1 (Tex. Crim.

App. Sept. 16, 2020) (per curiam) (not designated for publication)

(same); Ex parte Henderson, WR-37,658-03, 2020 Tex. Crim. App.

Unpub. LEXIS 171, 2020 WL 1870477, at *1 (Tex. Crim. App. Apr.

15, 2020) (per curiam) (not designated for publication) (same).

Cir. 2007) (finding Atkins was inapplicable in the context of a

sentence that did not involve the death penalty); Harris v. McAdory,

334 F.3d 665, 668 n.1 (7th Cir. 2003) (same); People v. Brown, 2012

IL App (1st) 091940, 967 N .E.2d 1004, 1022, 359 Ill. Dec. 974 (Ill.

App. Ct. 2012) (same); Commonwealth v. Yasipour, 2008 PA Super

214, 957 A.2d 734, 744 (Pa. Super. Ct. 2008) (same)); see State v.

Ward, 295 Ore. App. 636, 437 P.3d 298, 312 (Or. Ct. App. 2019)

(rejecting argument that Miller applies to intellectually disabled

adults), rev'd on other grounds, 367 Ore. 188, 475 P.3d 420 (2020).

Jorge Aristotelidis

Page 12 of 13

616 S.W.3d 207, *213; 2020 Tex. App. LEXIS 10310, **11

Tex. Penal Code § 12.31(a)(2). While "[i]t

is emphatically the province and duty of the

judicial department" to strike down laws

that violate constitutional rights, Marbury v.

Madison, 5 U.S. 137, 177-78, 2 L. Ed. 60

(1803), our position as an intermediate

state [**12] court of appeals requires

faithful adherence to the Supreme Court's

constitutional jurisprudence, just as

statutory construction requires faithful

adherence to a statute's plain language. See

Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).

country, it simply does not appear [**13]

that day has come.

When a "decision [does not] flow[]

straightforwardly from [the Supreme

Court's] precedents," judicial declarations

that legislatively enacted sentencing statutes

are

unconstitutional

have

broad

implications. Miller, 567 U.S. at 483. Under

Parsons—and the overwhelming weight of

authority from other jurisdictions—the

prerogative to change constitutional,

legislatively enacted statutes belongs to the

legislature. 2018 Tex. App. LEXIS 5898,

2018 WL 3627527, at *4-5. The Texas

Legislature should therefore consider

revising Penal Code section 12.31(a) to

account for the diminished culpability of

intellectually disabled capital offenders as a

matter of public policy. Such a legislative

change would provide fairness and justice

for intellectually disabled offenders in

future cases without the retroactive

ramifications of premature constitutional

declarations by the judiciary. Such

legislation would also be a step in the right

direction for evolving standards of decency

that might, one day, be constitutionally

relevant

for

intellectually

disabled

offenders. See Graham v. Florida, 560 U.S.

48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010).4

A growing national consensus of courts—

indeed, in a diverse set of jurisdictions—has

concluded the Eighth Amendment does not

require the consideration of intellectual

disability for non-death penalty cases

involving adults. See supra note 3. Notably,

the sole case from another jurisdiction relied

upon by Avalos on original submission—

People v. Coty—was reversed by the

Supreme Court of Illinois the day after the

panel issued its opinion and judgment in

these appeals. People v. Coty, 2020 IL

123972, 2020 WL 2963311, at *11 (Il.

2020) (reversing court of appeals and

holding an automatic life sentence without

parole was not unconstitutional as applied to

intellectually [*214] disabled sex offender).

Today, the majority deviates from the

growing national consensus of courts

considering this issue. The majority's

reasoning shows how one day, the Supreme CONCLUSION

Court might conclude an automatic life

Because the significant differences between

sentence without parole for intellectually

disabled offenders is unconstitutionally

cruel and unusual. But given the growing 4 In a footnote, the majority states it need not consider objective

of evolving standards of human decency because Miller and

consensus of other courts throughout the indicia

Atkins compel its holding. However, such objective indicia can be a

relevant factor to consider. See, e.g., Miller, 567 U.S. at 482-83.

Jorge Aristotelidis

Page 13 of 13

616 S.W.3d 207, *214; 2020 Tex. App. LEXIS 10310, **13

juvenile and intellectually disabled adult

offenders

reasonably

explain

why

individualized sentencing is constitutionally

mandatory for [**14] the former, but the

not the latter, I respectfully dissent.

Luz Elena D. Chapa, Justice

End of Document

Jorge Aristotelidis

APPENDIX C

Neutral

As of: May 16, 2022 6:31 PM Z

Avalos v. State

Court of Criminal Appeals of Texas

December 15, 2021, Delivered

NOS. PD-0038-21 & PD-0039-21

Reporter

635 S.W.3d 660 *; 2021 Tex. Crim. App. LEXIS 1202 **

JOHNNY JOE AVALOS, Appellant v. THE intellectually disabled; [2]-There was a

distinction, identifiable in the Supreme

STATE OF TEXAS

Court's own precedents, that made a critical

difference to the acceptability of a sentence

Notice: PUBLISH

of life without the possibility of parole, even

Prior

History: [**1] ON

STATE'S when automatically imposed; [3]-The

PETITION

FOR

DISCRETIONARY incapacitation

justification

rendered

REVIEW FROM THE FOURTH COURT constitutionally acceptable the Legislature's

OF APPEALS BEXAR COUNTY.

policy choice to mandate a punishment of

life without parole as an alternative to the

Core Terms

death penalty for that category of capital

murder offenders in Texas, notwithstanding

offenders, juvenile, parole, sentence,

Miller;

[4]-Defendant's

mandatory

disabled, juvenile offender, death penalty,

sentences of life without parole did not

categorically, murderers, youth, automatic,

violate U.S. Const. amend. VIII.

culpable, adult, cases, individualized

sentencing, penological, mandatory,

Outcome

objective indicia, adult offender, deterrence,

Judgment reversed.

mitigating, transient, homicide, ban, life

sentence, circumstances, non-homicide,

LexisNexis® Headnotes

strand, court of appeals, rehabilitation

Case Summary

Overview

HOLDINGS: [1]-It would be inappropriate

to extend Miller's ban on the automatic

imposition of life without parole on juvenile

offenders to cover adult offenders who were

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law & Procedure > Juvenile

Jorge Aristotelidis

Page 2 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

Offenders > Sentencing > Age & Term

Limits

Procedure > Sentencing > Cruel &

Unusual Punishment

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN2[ ] Fundamental Rights, Cruel &

Unusual Punishment

The United States Supreme Court held that

Criminal Law & Procedure > Juvenile

the Eighth Amendment, U.S. Const. amend.

Offenders > Sentencing > Confinement

VIII, does not require an individualized

Practices

sentencing determination—as a prerequisite

to assessing a sentence of life without

HN1[ ] Fundamental Rights, Cruel & parole—for an adult offender, and that the

Unusual Punishment

mandatory imposition of such a sentence is

constitutionally acceptable.

In Miller, the United States Supreme Court

decided that it violates the Eighth

Amendment

to

the

United

States

Criminal Law & Procedure > Juvenile

Constitution, U.S. Const. amend. VIII, for a

Offenders > Sentencing > Age & Term

state to automatically sentence a juvenile

Limits

offender—even one who has committed

murder—to a term of life in the penitentiary

Criminal Law & Procedure > Juvenile

without the possibility of parole. While it

Offenders > Sentencing > Capital

did not categorically ban a life without

Punishment

parole sentence for such a juvenile offender,

Criminal Law & Procedure > Juvenile

it held that the state must at least first afford

Offenders > Sentencing > Confinement

the juvenile offender the opportunity to

Practices

persuade the punishment fact finder that he

should not be automatically, "irrevocably"

Criminal Law &

sentenced to spend the rest of his life in

Procedure > Sentencing > Sentencing

prison.

Alternatives > Life Imprisonment in

Capital Cases

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law &

Criminal Law &

Procedure > Postconviction

Proceedings > Parole

HN3[ ] Sentencing, Age & Term Limits

Jorge Aristotelidis

Page 3 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

To be sure, Miller does not categorically

eliminate life without parole from the ambit

of permissible punishments for juvenile

offenders. But Miller does mandate an

individualized sentencing requirement as a

prerequisite to assessing life without parole

for a juvenile offender, even one who

commits murder—the same kind of

individualized sentencing required to

impose the death penalty for adults. The

Supreme Court explained that, although it

does not foreclose a sentencer's ability to

make that judgment that life without parole

is appropriate for juvenile offenders in

homicide cases, it requires it to take into

account how children are different, and how

those

differences

counsel

against

irrevocably sentencing them to a lifetime in

prison.

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

Criminal Law &

Procedure > Sentencing > Cruel &

Unusual Punishment

HN4[ ] Fundamental Rights, Cruel &

Unusual Punishment

The first strand identifies circumstances in

which certain punishments (usually, but not

exclusively, the death penalty) are simply

prohibited—categorically.

The

second

strand, deriving from requires particularized

assessment of the appropriateness of

assessing a punishment (only the death

penalty, until). The Supreme Court

explained in Miller that the confluence of

these two lines of precedent leads to the

conclusion that mandatory life-withoutparole sentences for juveniles violate the

Eighth Amendment, U.S. Const. amend.

VIII.

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

HN5[ ] Capital Punishment, Intellectual

Disabilities

The Supreme Court catalogued the

characteristics of intellectual disability that

render such offenders less culpable by

definition: They have diminished capacities

to understand and process information, to

communicate, to abstract from mistakes and

learn from experience, to engage in logical

reasoning, to control impulses, and to

understand the reactions of others. There is

no evidence that they are more likely to

engage in criminal conduct than others, but

there is abundant evidence that they often

act on impulse rather than pursuant to a

premeditated plan, and that in group settings

they are followers rather than leaders.

Jorge Aristotelidis

Page 4 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

HN6[ ]

Practices

Sentencing,

Confinement

The Supreme Court identified three general

differences between juveniles under 18 and

adults that it believed demonstrate that

juvenile offenders cannot with reliability be

classified among the worst offenders. They

are:

(1)

lack

of

maturity

and

underdeveloped sense of responsibility; (2)

greater susceptibility to negative influence

and peer pressure; and (3) an undeveloped

character, such that the personality traits of

juveniles are more transitory, less fixed.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

HN7[ ]

Practices

Sentencing,

Confinement

evidence of irretrievable depraved character.

From a moral standpoint it would be

misguided to equate the failings of a minor

with those of an adult, for a greater

possibility exists that a minor's character

deficiencies will be reformed. Indeed, the

relevance of youth as a mitigating factor

derives from the fact that the signature

qualities of youth are transient; as

individuals mature, the impetuousness and

recklessness that may dominate in younger

years can subside.

Constitutional Law > Bill of

Rights > Fundamental Rights > Cruel &

Unusual Punishment

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

HN8[ ] Fundamental Rights, Cruel &

The susceptibility of juveniles to immature Unusual Punishment

and irresponsible behavior means their

The Supreme Court determined that

irresponsible conduct is not as morally

retribution is not proportional if the law's

reprehensible as that of an adult. Their own

most severe penalty is imposed on one

vulnerability and comparative lack of

whose culpability or blameworthiness is

control over their immediate surroundings

diminished, to a substantial degree, by

mean juveniles have a greater claim than

reason of youth and immaturity. As for

adults to be forgiven for failing to escape

deterrence, it is unclear whether the death

negative influences in their whole

penalty has a significant or even measurable

environment. The reality that juveniles still

deterrent effect on juveniles. For these

struggle to define their identity means it is

reasons it concluded that, when a juvenile

less supportable to conclude that even a

offender commits a heinous crime, the State

heinous crime committed by a juvenile is

Jorge Aristotelidis

Page 5 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

can exact forfeiture of some of the most

basic liberties, but the State cannot

extinguish his life and his potential to attain

a mature understanding of his own

humanity. Accordingly, the Supreme Court

held that the Eighth and Fourteenth

Amendments forbid imposition of the death

penalty on offenders who were under the

age of 18 when their crimes were

committed, U.S. Const. amends. VIII, XIV.

Criminal Law &

Procedure > Sentencing > Imposition of

Sentence > Factors

HN9[ ] Imposition of Sentence, Factors

The judicial exercise of independent

judgment requires consideration of the (1)

culpability of the offenders at issue (2) in

light of their crimes and characteristics,

along with (3) the severity of the

punishment in question. In this inquiry the

Court also considers (4) whether the

challenged sentencing practice serves

legitimate penological goals.

Criminal Law &

Procedure > Postconviction

Proceedings > Imprisonment

HN10[ ] Postconviction

Imprisonment

Proceedings,

With respect to the first of these two

additional objectives—incapacitation—the

Supreme Court recognized that removing an

incorrigible criminal from the rest of society

has been deemed to be a legitimate

penological justification in some contexts.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Age & Term

Limits

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

HN11[ ]

Limits

Sentencing, Age & Term

Mandatory life without parole for a juvenile

precludes consideration of his chronological

age and its hallmark features—among them,

immaturity, impetuosity, and failure to

appreciate risks and consequences. It

prevents taking into account the family and

home environment that surrounds him—and

from which he cannot extricate himself—no

matter how brutal or dysfunctional. It

neglects the circumstances of the homicide

offense, including the extent of his

participation in the conduct and the way

familial and peer pressures may have

affected him. Indeed, it ignores that he

might have been charged and convicted

with a lesser offense if not for the

incompetencies associated with youth—for

example, his inability to deal with police

officers or prosecutors (including in a plea

agreement) or his incapacity to assists his

Jorge Aristotelidis

Page 6 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

own attorneys. And finally, this mandatory Practices

punishment disregards the possibility of

rehabilitation even when the circumstances The relevance of youth as a mitigating

factor derives from the fact that the

most suggest it.

signature qualities of youth are transient; as

individuals mature, the impetuousness and

recklessness that may dominate in younger

Criminal Law &

Procedure > Sentencing > Imposition of years can subside.

Sentence > Factors

HN12[ ]

Factors

Imposition

of

Sentence,

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

The Supreme Court mandates only that a

sentencer follow a certain process— HN15[ ]

Capital

Punishment,

considering an offender's youth and Intellectual Disabilities

attendant circumstances—before imposing a

In contrast to the juvenile offender, the

particular penalty.

intellectually disabled offender's condition

is not transient precisely because of his

condition, and thus he represents a greater

Criminal Law &

Procedure > Sentencing > Imposition of long-term continuing threat to society. His

diminished capacity to control impulses, to

Sentence > Factors

communicate, to abstract from his mistakes

HN13[ ]

Imposition of Sentence, and learn from his experience is a fixed

Factors

attribute that makes him a greater, not a

lesser, danger to society.

Relying on the confluence of the

categorical-challenge strand of cases and the

individualized sentencing strand of cases,

Criminal Law & Procedure > Juvenile

the Supreme Court concluded that it need

Offenders > Sentencing > Age & Term

not scrutinize legislative enactments for

Limits

objective indicia of a consensus against the

practice before exercising its own

Criminal Law &

independent judgment.

Procedure > Sentencing > Capital

Punishment > Intellectual Disabilities

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Confinement

Practices

HN14[ ]

Sentencing,

Criminal Law &

Procedure > Sentencing > Sentencing

Alternatives > Life Imprisonment in

Capital Cases

Confinement

Jorge Aristotelidis

Page 7 of 20

635 S.W.3d 660, *660; 2021 Tex. Crim. App. LEXIS 1202, **1

Criminal Law &

Procedure > Postconviction

Proceedings > Parole

courts.

Criminal Law & Procedure > Juvenile

Offenders > Sentencing > Capital

Punishment

Criminal Law &

Procedure > Sentencing > Mental

Incapacity

HN16[ ]

Limits

Sentencing, Age & Term

Juvenile offenders may—by the simple

process of aging—mature out of their

dangerous proclivities, but the intellectually

disabled offender will not. It simply cannot

be said, as Miller did about juvenile

murderers, that the penological goal of

incapacitation does not justify the State's

decision to mandate a sentence of life

without parole for the intellectually disabled

killer.

Criminal Law &

Procedure > Sentencing > Imposition of

Sentence > Factors

HN17[ ]

Factors

Imposition

of

Sentence,

The Supreme Court's traditional deference

to legislative policy choices finds a

corollary in the principle that the

Constitution does not mandate adoption of

any one penological theory. A sentence can

have a variety of justifications, such as

incapacitation, deterrence, retribution, or

rehabilitation. Some or all of these

justifications may play a role in a State's

sentencing scheme. Selecting the sentencing

rationales is generally a policy choice to be

made by state legislatures, not federal

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

HN18[ ]

Punishment

Sentencing,

Capital

An intellectually disabled capital murderer

may be, as the United States Supreme Court

has concluded, categorically less culpable

for his offense than the ordinary adult

capital murderer, and therefore insulated

from the death penalty; but he is no less

dangerous for it—and there is no evidence

that he will simply grow out of those

aspects of his condition that may have

contributed to his commission of his offense

in the same way that a juvenile offender will

eventually become an adult.

Criminal Law &

Procedure > Sentencing > Capital

Punishment > Cruel & Unusual

Punishment

HN19[ ] Capital Punishment, Cruel &

Unusual Punishment

The incapacitation justification renders

constitutionally acceptable the Legislature's

policy choice to mandate a punishment of

life without parole as an alternative to the

death penalty for that category of capital

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murder

offenders

notwithstanding.

in

Texas— HN1[ ] In [**2] Miller v. Alabama, 567

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012), the United States Supreme Court

Judges: YEARY, J., delivered the opinion

decided that it violates the Eighth

of the Court in which KELLER, P.J., and

Amendment

to

the

United

States

KEEL, SLAUGHTER, and MCCLURE, JJ., Constitution for a state to automatically

joined. HERVEY, RICHARDSON, and

sentence a juvenile offender—even one who

NEWELL, JJ., concurred in the result.

has committed murder—to a term of life in

WALKER, J., dissented.

the penitentiary without the possibility of

parole. While it did not categorically ban a

Opinion

life without parole sentence for such a

juvenile offender, it held that the state must

[*661] In two separate indictments, at least first afford the juvenile offender the

Appellant was charged with capital murder opportunity to persuade the punishment fact

for the serial killing of five women over the finder that he should not be automatically,

course of several years. The State waived "irrevocably" sentenced to spend the rest of

the death penalty, and Appellant pled guilty his life in prison. Id. at 480.2

to two capital murders, judicially confessing

In the instant case, the Fourth Court of

in the process to murdering all five of the

Appeals, sitting en banc, extended Miller's

alleged victims. In pre-trial proceedings, he

Eighth Amendment ban on automatic lifepreserved his argument that the only

without-parole sentences to cover murder

remaining punishment—mandatory life

[*662] defendants who are intellectually

without the possibility of parole—was

disabled.3 Avalos v. State, 616 S.W.3d 207,

unconstitutional as applied to him because

he is intellectually disabled. The trial court

the constitutionality of this provision in several pre-trial

accepted Appellant's plea but rejected his challenged

motions. In his prayers, Appellant requested that (1) the trial court

claim that to automatically assess life conduct a sentencing hearing to allow him to present mitigating

without parole against him, without evidence, and that (2) at the conclusion of the hearing, the trial court

assess a "proportionate" punishment less than life without parole.

allowing the consideration of mitigating The trial court denied these motions and later certified Appellant's

evidence, violated the Eighth Amendment. right to challenge its pre-trial rulings on appeal, notwithstanding his

Accordingly, the trial court sentenced guilty pleas.

Appellant to two life sentences without the 2 See Lewis v. State, 428 S.W.3d 860, 863 (Tex. Crim. App. 2014)

possibility of parole, as required by statute (recognizing that Miller does not categorically ban life without

parole as an available punishment for juvenile offenders, but instead

when the State waives the death penalty in requires an individualized sentencing process as a prerequisite to its

imposition).

Texas.1

3 The State does not take issue with the trial court's conclusion that

1 See Tex. Penal Code § 12.31(a)(2) ("An individual adjudged guilty

of a capital felony in a case in which the state does not seek the death

penalty shall be punished by imprisonment in the Texas Department

of Criminal Justice for . . . life without parole, if the individual

committed the offense when 18 years of age or older."). Appellant

Appellant in fact suffers from intellectual disability. See Avalos v.

State, 616 S.W.3d 207, at 209 n.1 (Tex. App.—San Antonio 2020);

State's Reply Brief on the Merits at 10, 15 ("This case is not about

whether appellant is intellectually disabled. The State agrees that he

is."). Having no need to inquire further about that issue, we therefore

accept that proposition for the purposes of this opinion.

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211 (Tex. App.—San Antonio 2020)

(opinion on en banc reconsideration). A

panel of another court of appeals has held

that such an extension is not appropriate,

albeit in an unpublished opinion. Parsons v.

State, No. 12-16-00330-CR, 2018 Tex. App.

LEXIS 5898, 2018 WL 3627527, at *5 (Tex.

App.—Tyler July 31, 2020) (mem. op., not

designated for publication). We granted the

State's petition for discretionary review to

examine whether the Supreme Court's

decision in Miller should be so extended.

We conclude that it should not, and we now

reverse the Fourth Court of Appeals'

judgment.

I. THE COMPETING

ARGUMENTS [**3]

The State maintains that because Appellant

is an adult offender, not a juvenile, this case

is controlled by Harmelin v. Michigan, 501

U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836

(1991). HN2[ ] There, the United States

Supreme Court held that the Eighth

Amendment

does

not

require

an

individualized sentencing determination—

as a prerequisite to assessing a sentence of

life without parole—for an adult offender,

and that the mandatory imposition of such a

sentence is constitutionally acceptable. Id.

at 994-96. The court of appeals disagreed

that Harmelin controls, however, deciding

that what was true of the juvenile homicide

offender under Miller is equally true of the

adult intellectually disabled homicide

offender. Avalos, 616 S.W.3d at 211. Just as

the Supreme Court in Miller found it

appropriate to extend the individualized

sentencing requirement to juveniles facing

the possibility of life-without-parole

because of the recognized mitigating

qualities of youth, the court of appeals in

this case also considered it appropriate to

extend the individualized sentencing

requirement to the mentally disabled

offenders sentenced to life without parole

because of the recognized mitigating

qualities of that debilitating condition. Id.

In order to evaluate the legitimacy of this

reasoning, it is necessary for us to take a

deeper dive into the Supreme [**4] Court

cases. In Part II of this opinion, we will

examine the opinions of the Supreme Court

that laid the foundation for its opinion in

Miller, with a view to explaining exactly

what it is about juvenile offenders that led

the Court to conclude that mandatory life

without parole was an unacceptable

sentence. In Part III, we will explain that,

because offenders who are intellectually

disabled do not share all of the same

qualities as juvenile offenders—specifically,

that their mitigating qualities are not

inherently "transient" as are those of a

juvenile offender—mandatory life without

parole is a constitutionally acceptable

punishment for them.

II. THE SUPREME COURT CASES

A. Woodson and Eddings: Individualized

Sentencing

In 1982, in Eddings v. Oklahoma, the

United States Supreme Court decided that,

before a state may impose the death penalty

in a capital murder case, it must permit the

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sentencer to consider "the character and

record of the individual offender and the

circumstances of the particular offense"

insofar as those considerations [*663] may

militate against sentencing him to death.

455 U.S. 104, 112, 102 S. Ct. 869, 71 L. Ed.

2d 1 (1982) (quoting Woodson v. North

Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978,

49 L. Ed. 2d 944 (1976) (plurality opinion)).

That Court's 1976 plurality opinion in

Woodson had already concluded that a state

may [**5] not automatically impose the

death penalty upon any offender, including

murderers. "This conclusion" the Court

explained, "rest[ed] squarely on the

predicate that the penalty of death is

qualitatively different from a sentence of

imprisonment,"—"however

long."

Woodson, 428 U.S. at 305 (plurality

opinion).

B. Harmelin: No Individualized

Assessment Required Before Mandatory

Life Without Parole

Indeed, the Supreme Court explained in

1991 that its "cases creating and clarifying

the 'individualized capital sentencing

doctrine' [of Woodson/Eddings] have

repeatedly suggested that there is no

comparable requirement outside the capital

context, because of the qualitative

difference between death and all other

penalties." Harmelin, 501 U.S. at 995

(citing, inter alia, Eddings, 455 U.S. at 11012, and Woodson, 428 U.S. at 303-05). In

Harmelin, for example, a majority of the

Supreme Court concluded (in Part IV of

what was otherwise a plurality opinion) that

the individualized-sentencing requirement

in death-penalty cases does not apply to a

lesser sentence, and that it does not offend

the Eighth Amendment for a state to impose

an automatic sentence of life without

parole—even for a non-homicide offense.

Id. "We have drawn the line of required

individualized sentencing at capital cases,"

the Supreme Court majority declared in

Harmelin [**6] , "and see no basis for

extending it further." Id. at 996.

C. Miller: Individualized Assessment

Required Before Imposition of

Mandatory Life Without Parole for

Juveniles

Of course, the offender in Harmelin was an

adult. In Miller, however, which was

decided in 2012, the offender was a

juvenile. For the first time, in Miller, the

Supreme

Court

did

extend

the

individualized

sentencing

requirement

beyond the context of the death penalty, so

that it now embraces what Harmelin

characterized as "the second most severe

[sentence] known to the law": life without

parole. Miller, 567 U.S. at 479; Harmelin,

501 U.S. at 996. HN3[ ] To be sure, Miller

does not categorically eliminate life without

parole from the ambit of permissible

punishments for juvenile offenders. 567

U.S. at 479-80. But Miller does mandate an

individualized sentencing requirement as a

prerequisite to assessing life without parole

for a juvenile offender, even one who

commits murder—the same kind of

individualized sentencing required to

impose the death penalty for adults. Id. The

Supreme Court explained that, "[a]lthough

we do not foreclose a sentencer's ability to

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make that judgment [that life without parole

is appropriate for juvenile offenders] in

homicide cases, we require it to take into

account how children are different, and how

those differences [**7] counsel against

irrevocably sentencing them to a lifetime in

prison." Id. at 480.

2242, 153 L. Ed. 2d 335 (2002), is an

example of the first "strand" that Miller

identified—the categorical-challenge strand.

In Atkins, the Supreme Court conducted

what it called a "[p]roportionality [**8]

review" to determine whether a particular

category of punishment is constitutionally

"excessive" for a particular class of offender

under the Eighth Amendment. Id. at 311-13.

It looked to "objective factors," including

the prevalent legislative judgments, with

respect to the nation's acceptance of that

category of punishment, and then tempered

that with its "own judgment" as to "whether

there is reason to disagree with the

judgment reached by the citizenry and its

legislators." Id. In Atkins itself, the Supreme

Court found an emerging legislative trend

against imposing the death penalty against

capital offenders who are intellectually

disabled, finding such offenders to be

"categorically less culpable than the average

criminal." See id. at 315-16 ("It is not so

much the number of these States that is

significant, but the consistency in the

direction of change."). From there, it turned

to its own assessment of whether there is a

reason to disagree with that perceived

legislative judgment.

The decision in Miller represented a

"confluence" of two "strands" of the

Supreme Court's Eighth Amendment cases.

567 U.S. at 470. HN4[ ] The first strand

identifies circumstances in which certain

punishments (usually, but not exclusively,

the death penalty) are simply prohibited—

categorically. Id. The second strand,

deriving from Woodson, requires [*664]

particularized

assessment

of

the

appropriateness of assessing a punishment

(only the death penalty, until Miller). Id.

The Supreme Court explained in Miller that

"the confluence of these two lines of

precedent leads to the conclusion that

mandatory life-without-parole sentences for

juveniles violate the Eighth Amendment."

Id. The question before us now is whether

that confluence also ineluctably leads to the

conclusion that mandatory life-withoutparole sentences similarly violate the Eighth

Amendment when assessed against an adult

The Supreme Court concluded that, because

offender who is intellectually disabled.

of the qualities of intellectual disability, the

execution of an offender who suffers from it

1. Categorical Prohibitions Against

categorically fails to contribute to either of

Particular Punishments

the justifications it identified for the death

penalty: retribution [**9] and deterrence.

Id. at 318-20. HN5[ ] First, the Supreme

(a) Atkins: Prohibiting the Death Penalty

Court catalogued the characteristics of

for Intellectually Disabled Offenders

intellectual disability that render such

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. offenders less culpable "by definition":

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[T]hey have diminished capacities to

understand and process information, to

communicate, to abstract from mistakes

and learn from experience, to engage in

logical reasoning, to control impulses,

and to understand the reactions of

others. There is no evidence that they

are more likely to engage in criminal

conduct than others, but there is

abundant evidence that they often act on

impulse rather than pursuant to a

premeditated plan, and that in group

settings they are followers rather than

leaders.

because of a diminished capacity to assist in

their own defense and to show the sentencer

an appropriate level of contrition. Id. at 32021.

These considerations persuaded the

Supreme Court that the national legislative

consensus it perceived to be emerging

against executing intellectually disabled

offenders was supportable. Id. at 321. It

therefore concluded that the death penalty

categorically constitutes an "excessive"

punishment for such offenders under the

Eighth Amendment. Id. And similar

reasoning would soon lead the Supreme

Id. at 318. Because retribution is a function Court to conclude that the Eighth

of culpability, and the intellectually disabled Amendment also categorically bans the

are, "by definition" less culpable than "the execution of capital juvenile offenders.

average murderer[,]" the Supreme Court

concluded that this justification fell short.

(b) Roper: Prohibiting the Death Penalty

Id. at 319.

for Juvenile Offenders

Next, addressing deterrence, the Atkins

Court determined that "the same cognitive In Roper v. Simmons, 543 U.S. 551, 125 S.

and behavioral impairments that make these Ct. 1183, 161 L. Ed. 2d 1 (2005), the

defendants less morally culpable . . . also Supreme Court revisited the question

the

Eighth

Amendment

make it less likely that they can process the whether

information of the possibility of execution categorically banned execution of juvenile

as a penalty and, as a result, control their capital murder offenders,4 applying the

conduct based on the information." [**10] same [**11] analysis as it had in Atkins. It

[*665] Id. at 320. Therefore, the Supreme asked first whether there were "objective

Court concluded, the deterrence justification indicia of consensus, as expressed in

is also not well served by executing the particular enactments of legislatures that

have addressed the question." Id. at 564.

intellectually disabled murderer. Id.

Finally, the Supreme Court observed that

offenders who are intellectually disabled "in

the aggregate face a special risk of wrongful

execution." This happens, the Court

observed, because of the danger that they

may be induced to confess falsely, and

4 Just sixteen years before deciding Roper, the Supreme Court had

concluded that the Eighth Amendment does not prohibit the

execution of offenders who are sixteen years of age or older when

they commit their offense. Stanford v. Kentucky, 492 U.S. 361, 109

S. Ct. 2969, 106 L. Ed. 2d 306 (1989). The Court at that time could

"discern neither a historical nor a modern societal consensus

forbidding the imposition of capital punishment" on such offenders.

Id. at 380.

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Next, it asked, "in the exercise of [its] own

independent judgment, whether the death

penalty is a disproportionate punishment for

juveniles." Id. The Supreme Court found

both that there were sufficient objective

indicia of a societal aversion to executing

juvenile offenders, id., at 567, and that

executing juvenile offenders did not serve

the penological objectives of retribution and

deterrence. Id. at 571-72.

In arriving at the latter determination, HN6[

] the Supreme Court identified "[t]hree

general differences between juveniles under

18 and adults" that it believed "demonstrate

that juvenile offenders cannot with

reliability be classified among the worst

offenders." Id. at 569. They are:

(1) lack of maturity and underdeveloped

sense of responsibility;

(2) greater susceptibility to negative

influence and peer pressure; and

(3) an undeveloped character, such that

"[t]he personality traits of juveniles are

more transitory, less fixed."

Id. at 569-70. The Court went on to describe

how these differences render a juvenile

offender less culpable, even for the

most [**12] heinous offense, than an adult

offender:

HN7[ ] The susceptibility of juveniles

to immature and irresponsible behavior

means their irresponsible conduct is not

as morally reprehensible as that of an

adult. Their own vulnerability and

comparative lack of control over their

immediate [*666] surroundings mean

juveniles have a greater claim than

adults to be forgiven for failing to

escape negative influences in their

whole environment. The reality that

juveniles still struggle to define their

identity means it is less supportable to

conclude that even a heinous crime

committed by a juvenile is evidence of

irretrievable depraved character. From a

moral standpoint it would be misguided

to equate the failings of a minor with

those of an adult, for a greater

possibility exists that a minor's character

deficiencies will be reformed. Indeed,

the relevance of youth as a mitigating

factor derives from the fact that the

signature qualities of youth are transient;

as individuals mature, the impetuousness

and recklessness that may dominate in

younger years can subside.

Id. at 570 (internal citations, quotation

marks, and brackets omitted). HN8[ ] The

Supreme

Court

determined

that

"[r]etribution is not proportional if the law's

most [**13] severe penalty is imposed on

one whose culpability or blameworthiness is

diminished, to a substantial degree, by

reason of youth and immaturity." Id. at 571.

"As for deterrence," the Court observed, "it

is unclear whether the death penalty has a

significant or even measurable deterrent

effect on juveniles[.]" Id. For these reasons

it concluded that, "[w]hen a juvenile

offender commits a heinous crime, the State

can exact forfeiture of some of the most

basic liberties, but the State cannot

extinguish his life and his potential to attain

a mature understanding of his own

humanity." Id. at 573-74. Accordingly, the

Supreme Court held that "[t]he Eighth and

Fourteenth Amendments forbid imposition

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of the death penalty on offenders who were Parole for Juvenile Offenders Who

under the age of 18 when their crimes were Commit Non-Homicide Offenses

committed." Id. at 578.

In Graham, the juvenile defendant was

As of 2005, when Roper was decided, the assessed a sentence of life without parole

Supreme Court's Eighth Amendment bar on [*667] for a non-homicide offense.

certain punishments as disproportionate, and Graham differs from Miller (which it

therefore "excessive," was somewhat preceded by two years) in that the sentence

limited. It was, up until that time, largely was not imposed automatically, and Graham

confined to the death penalty, either for a argued that, even so, it was categorically

certain class of categorically-less-culpable unconstitutional when imposed for a nonoffenders (juveniles and the intellectually homicide offense. At the outset, the

disabled), or for categorically-less-heinous Supreme Court recognized the novelty of

crimes (e.g., rape, or vicarious responsibility the issue before it: "The present case

for a murder for which the offender involves an issue the Court has not

lacked [**14] mental culpability for the considered previously: a categorical

actual killing).5 In Graham v. Florida, 560 challenge to a term-of-years sentence." Id.

U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 at 61. Because it was a categorical

(2010), however, the Supreme Court would challenge, the Supreme Court proceeded

break new ground, for the first time under the mode of analysis it had employed

categorically prohibiting a punishment of in Atkins and Roper, namely: (1) looking for

less than death (life without parole) for a objective indicia of society's attitude about

certain class of offender (juveniles) for a life without parole within its legislative

certain kind of crime (less than homicide).

enactments; and then (2) overlaying [**15]

its "own independent judgment" about the

efficacy of that punishment to satisfy the

(c) Graham: Prohibiting Life Without

relevant penological goals, to decide

whether the legislative consensus was

5 See Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed.

supportable.

2d 982 (1977) (plurality opinion) ("Rape is without doubt deserving

of serious punishment; but in terms of moral depravity and of the

injury to the person and to the public, it does not compare with

murder, which does involve the unjustified taking of human life.");

Enmund v. Florida, 458 U.S. 782, 801, 102 S. Ct. 3368, 73 L. Ed. 2d

1140 (1982) ("Putting Enmund to death to avenge two killings that

he did not commit and had no intention of committing or causing

does not measurably contribute to the retributive end of ensuring that

the criminal gets his just deserts."); see also Kennedy v. Louisiana,

554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (deciding

that the death penalty is a categorically disproportionate sentence for

the offense of rape of a child); Graham v. Florida, 560 U.S. 48, 60,

130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (observing that the Court

has broken down its classification of cases that focus on categorical

bans on the death penalty into "two subsets, one considering the

nature of the offense, the other considering the characteristics of the

offender.").

After examining the objective indicia, the

Supreme Court concluded that "[t]he

sentencing practice now under consideration

is exceedingly rare[,]" such that "'it is fair to

say that a national consensus has developed

against it.'" Id. at 67 (quoting Atkins, 536

U.S. at 316). Turning to the exercise of its

own independent judgment, the Court

observed:

HN9[ ]

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The

judicial

exercise

of

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independent

judgment

requires

consideration of the [1] culpability of

the offenders at issue [2] in light of their

crimes and characteristics, along with

[3] the severity of the punishment in

question. In this inquiry the Court also

considers [4] whether the challenged

sentencing practice serves legitimate

penological goals.

HN10[ ] With respect to the first of these

two additional objectives—incapacitation—

the Supreme Court recognized that

removing an incorrigible criminal from the

rest of society has been deemed to be a

"legitimate" penological justification in

some contexts. Id. at 71 (citing Ewing v.

California, 538 U.S. 11, 25, 123 S. Ct. 1179,

155 L. Ed. 2d 108 (2003) (plurality

opinion)).6 But it rejected that justification

[*668] for assessing life without parole for

a juvenile offender because the transience of

youth

makes

"questionable"

any

assumption [**17] that a juvenile will

prove incorrigible." Id. at 72-73. To exile

such an offender to a lifetime in the

penitentiary without even the possibility of

parole, it explained, "improperly denies

[him] a chance to demonstrate growth and

maturity." Id. at 73.

Id. (citations omitted; bracketed numbers

added). After (1) reiterating Roper's

conclusion that juveniles are categorically

less culpable than adult offenders, and then

observing that (2) no other offense can

compare to murder in seriousness and

irrevocability, and that (3) life without

parole is surpassed in its severity only by

the death penalty and may be "an [**16]

especially harsh punishment for a juvenile,"

id. at 68-70, the Court went on (4) to

analyze whether life without parole for As for the goal of rehabilitation, the

juvenile non-homicide offenders could be Supreme Court rejected this justification for

life without parole out of hand. In doing so,

justified by any penological goal.

it observed that life without parole, by its

In analyzing the efficacy of life without nature,

"forswears

altogether

the

parole to serve the penological goals when it rehabilitative ideal." Id. at 74. "In sum," the

comes to juvenile offenders, the Graham Graham Court concluded, "penological

Court expanded upon those penological theory is not adequate to justify life without

goals it had found wanting in Atkins and parole for juvenile nonhomicide offenders."

Roper. As in Atkins and Roper, the Court Id.

found that life without parole for a juvenile

non-homicide offender was not justified by

the familiar twin goals of retribution or (2) Prohibition Against Life Without

deterrence. Id. at 71-72. But beyond that, Parole for Juvenile Homicide Offenders

the Court also asked whether life without

parole for juveniles might also be justified

6 See also Atkins, 536 U.S. at 350 (Scalia, J., dissenting) ("The Court

by either of two additional penological conveniently

ignores a third 'social purpose' of the death penalty—

objectives not mentioned in Atkins or 'incapacitation of dangerous criminals and the consequent prevention

Roper: incapacitation and rehabilitation. Id. of crimes that they may otherwise commit in the future,' Gregg v.

Georgia, 428 U.S. 153, 183 n.28, 96 S. Ct. 2909, 49 L. Ed. 2d 859

at 72.

(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).").

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Absent Individualized Sentencing

the circumstances most suggest it.

What distinguishes Miller from Atkins,

Roper, and Graham is that, in Miller, the

Supreme Court did not address a claim that

a certain punishment was categorically

banned. Miller, 567 U.S. at 479. Instead, it

held that a state is permitted to impose a

sentence of life without parole upon a

juvenile homicide offender only when the

sentencer is first given an opportunity to

"tak[e] account of an offender's age and the

wealth of characteristics and circumstances

attendant to it." Id. at 476. HN11[ ] As the

Supreme Court summarized:

Mandatory [**18] life without parole

for a juvenile precludes consideration of

his chronological age and its hallmark

features—among them, immaturity,

impetuosity, and failure to appreciate

risks and consequences. It prevents

taking into account the family and home

environment that surrounds him—and

from which he cannot extricate

himself—no matter how brutal or

dysfunctional.

It

neglects

the

circumstances of the homicide offense,

including the extent of his participation

in the conduct and the way familial and

peer pressures may have affected him.

Indeed, it ignores that he might have

been charged and convicted with a lesser

offense if not for the incompetencies

associated with youth—for example, his

inability to deal with police officers or

prosecutors (including in a plea

agreement) or his incapacity to assists

his own attorneys. * * * And finally, this

mandatory punishment disregards the

possibility of rehabilitation even when

Id. at 477-78. So, while it did not

categorically ban life without parole for

juvenile homicide offenders, the Court

concluded that such a punishment could not

be assessed without requiring the sentencer

"to take into account how children are

different, [**19] and how those differences

counsel against irrevocably sentencing them

to a lifetime in prison." Id. at 480.

Notably, the Miller Court did not inquire

about the legislative consensus, or any other

"objective indicia" of society's attitude,

before announcing its decision. Because it

was not imposing a categorical ban, the

Supreme Court said, it did not need to

undertake the first part of the Eighth

Amendment analysis of cases such as Atkins,

Roper, and Graham (i.e., the part that looks

for "objective indicia" of societal consensus

in, e.g., legislative enactments), but could

proceed basically upon its own judgment, as

it had done in cases such as Woodson and

Eddings. Id. at 483. As the Court explained:

[*669]

Our decision does not

categorically bar a penalty for a class of

offenders or type of crime—as, for

example, we did in Roper or Graham.

HN12[ ] Instead, it mandates only that

a sentencer follow a certain process—

considering an offender's youth and

attendant

circumstances—before

imposing a particular penalty. And in so

requiring,

our

decision

flows

straightforwardly from our precedents:

specifically, the principle of Roper,

Graham, and our individualized

sentencing cases [such as Woodson and

Jorge Aristotelidis

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635 S.W.3d 660, *669; 2021 Tex. Crim. App. LEXIS 1202, **19

Eddings] that youth matters for purposes

of meting out the law's most

serious [**20] punishments. When both

of those circumstances have obtained in

the past, we have not scrutinized or

relied in the same way on legislative

enactments. We see no difference here.

Id. (citations omitted). The Supreme Court

then went on to observe that, in any event,

the

relevant

legislative

enactments

regarding automatic life without parole for

juvenile murderers were too amorphous to

"preclude" its own ultimate judgment that

such a penalty was constitutionally

unacceptable. Id. at 483-87, 489.

III. ANALYSIS

The State principally argues that, because

Appellant was an adult offender, the court

of appeals' decision must be reversed

consistent with Harmelin. The State of

Alabama made a similar argument in Miller,

that Harmelin controlled the question

whether juveniles are susceptible to

automatic life without parole. The Supreme

Court rejected that argument as "myopic[,]"

observing that "Harmelin had nothing to do

with children and did not purport to apply

its decision to the sentencing of juvenile

offenders." 567 U.S. at 481.

137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017),

and Moore v. Texas, 139 S. Ct. 666, 203 L.

Ed. 2d 1 (2019). The Supreme Court might

well conclude that the [**21] question

remains open because Harmelin "did not

purport to apply its holding to the

sentencing of" intellectually disabled

offenders.7

The State also argues that the court of

appeals erred because Appellant failed to

identify any objective indicia of a national

consensus—not even a trend—against

assessing

life

without

parole

for

intellectually disabled murderers. That is

true. But in Miller, the Supreme Court did

not require the demonstration of such a

consensus before deciding that the

automatic assessment of life without parole

was a constitutionally unacceptable

sentence for juvenile offenders. HN13[ ]

Relying on the "confluence" of the

categorical-challenge "strand" of cases and

the individualized sentencing "strand" of

cases, the Supreme Court concluded that it

need not scrutinize legislative enactments

for objective indicia of a consensus against

the practice before exercising its own

independent judgment. Miller, 567 U.S. at

483. This failure of proof, therefore,

consistent with Miller, is not necessarily

fatal to Appellant's case.

It is not inconceivable to us that the [*670] But we need not definitively

Supreme Court might again ultimately say resolve either of these arguments.

something similar with respect to

intellectual disability. Harmelin was 7 The State also argues that only the United States Supreme Court

decided before Atkins, not to mention Hall has the authority to extend Miller to the detriment of its decision in

State's Brief at 17-20. The State made no such argument

v. Florida, 572 U.S. 701, 134 S. Ct. 1986, Harmelin.

in its brief to the court of appeals. In any event, in light of our

188 L. Ed. 2d 1007 (2014), Moore v. Texas, ultimate conclusion that Harmelin, not Miller, does control, we need

not address this contention.

Jorge Aristotelidis

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635 S.W.3d 660, *670; 2021 Tex. Crim. App. LEXIS 1202, **21

Ultimately, we agree with the State that it

would be inappropriate to extend Miller's

ban on the automatic imposition of life

without parole [**22] on juvenile offenders

to cover adult offenders who are

intellectually disabled—even under the

same "confluence-of-strands" analysis that

the Supreme Court applied in Miller. It is

true that those two categories of offenders

(juveniles and adults who are intellectually

disabled) may share many of the same

mitigating

characteristics,

such

as

diminished impulse control and greater

susceptibility to peer pressure. Nevertheless,

there is a distinction, identifiable in the

Supreme Court's own precedents, that

makes a critical difference to the

acceptability of a sentence of life without

the possibility of parole, even when

automatically imposed.

A number of courts have recognized the

distinction (without necessarily describing

exactly why it makes a difference to the

Eighth Amendment analysis). HN14[ ] As

the Supreme Court itself explained in

Roper, "the relevance of youth as a

mitigating factor derives from the fact that

the signature qualities of youth are transient;

as individuals mature, the impetuousness

and recklessness that may dominate in

younger years can subside." 543 U.S. at

570. Accordingly, the few lower and

intermediate courts that have directly

addressed the question of whether Miller

should be extended to cover intellectually

disabled [**23] murderers have noted that

youth is mitigating precisely because it is

transient. See Turner v. Coleman, No. 131787, 2016 U.S. Dist. LEXIS 97099, 2016

WL 3999837, at *8 (W.D. Pa. July 26,

2016) (mem. op., not designated for

publication) (addressing a claim that the

Equal

Protection

Clause

required

application of Miller to intellectually

disabled defendant convicted of murder in

state court, and deciding that "Petitioner

fails to show that he is similarly situated to

juveniles in the critical aspect that mentally

retarded individuals share as a class with the

class of juvenile convicts, i.e., greater

prospects for reform") (internal quotation

marks omitted); State v. Little, 200 So.3d

400, 403-04 (La. Ct. App. 3rd 2016)

(rejecting an argument that "mentally

retarded defendants should be afforded the

same protections given to juvenile

defendants" in Miller, while observing that

"there is a greater possibility of reform over

time as the juvenile matures into

adulthood"); Parsons, 2018 Tex. App.

LEXIS 5898, 2018 WL 3627527, at *5

(noting the characteristics of juveniles that

do not apply to the intellectually disabled,

including that "(1) juvenile offenders have

greater prospects for reform than adult

offenders, (2) the character of juvenile

offenders is less well formed and their traits

less fixed . . . [and] (3) recklessness,

impulsivity, and risk taking are more likely

to be transient in juveniles than in adults").8

8 Other post-Miller courts have also refused to expand it, but with

less explanation of how intellectual disability is sufficiently different

from the juvenile condition to justify a different treatment. See

Baxter v. State, 177 So.3d 423, 447 (Miss. Ct. App. 2014) (rejecting a

claim that life without parole "is disproportionate" considering the

defendant's intellectual disability, observing simply (even after

Miller) that, "under our law, Baxter's intellectual disability only

precluded the death penalty, not life imprisonment without parole");

Commonwealth v. Jones, 479 Mass. 1, 90 N.E.3d 1238, 1252 (Mass.

2018) (refusing to extend Miller to "eliminate" mandatory life

without parole sentences for defendants with "developmental

Jorge Aristotelidis

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635 S.W.3d 660, *670; 2021 Tex. Crim. App. LEXIS 1202, **23

The Illinois Supreme Court has recently

offered a cogent explanation for why that

difference matters. In People v. Coty,

N.E.3d , 2020 IL 123972, [*671] 2020

WL 2963311 (Ill. 2020), the court observed:

control impulses, [**25] to communicate,

to abstract from his mistakes and learn from

his experience is a fixed attribute that makes

him a greater, not a lesser, danger to society.

2020 IL 123972, [WL] at *9.

While the Supreme Court's decision in

Miller is based in part upon the lesser

culpability of youth—a characteristic the

Atkins Court pronounced shared by the

intellectually

disabled—the

Miller

Court's decision is founded, principally,

upon the transient characteristics of

youth, characteristics not shared by

adults who are intellectually disabled.

We agree with the Illinois Supreme

Court.HN16[ ] Juvenile offenders may—

by the simple process of aging—mature out

of their dangerous proclivities, but the

intellectually disabled offender will not. It

simply cannot be said, as Miller did about

juvenile murderers, that the penological

goal of incapacitation does not justify the

State's decision to mandate a sentence of

life without parole for the intellectually

2020 IL 123972, [WL] at *10. That the disabled killer.9

juvenile offender's deficiencies are transient

made all the difference to the Illinois Court, HN17[ ] A plurality of the Supreme Court

as it elaborated:

observed in Ewing v. California, 538 U.S.

11, 123 S. Ct. 1179, 155 L. Ed. 2d 108

The enhanced prospect that, as the years

(2003):

go by and neurological development

occurs, deficiencies will be reformed—

Our traditional deference to legislative

is not a prospect that applies to this

policy choices finds a corollary in the

intellectually disabled defendant, who

principle that the Constitution does not

was 46 years old when he committed

mandate adoption of any one

this, his second sexual offense against a

penological theory. A sentence can have

child. The rehabilitative prospects of

a variety of justifications, such as

youth do not figure into the sentencing

incapacitation, deterrence, retribution, or

calculus for him.

rehabilitation. Some or all of these

justifications may play a role in a State's

Id. HN15[ ] In contrast to the juvenile

sentencing scheme. Selecting the

offender, the intellectually disabled

sentencing rationales is generally a

offender's condition is not transient

policy choice to be made by state

precisely because of his condition, and thus

legislatures, not federal courts.10

he represents a greater long-term continuing

threat to society. His diminished capacity to 9

disabilities"); c.f., State v. Ward, 295 Ore. App. 636, 437 P.3d 298,

313 (Ore. Ct. App. 2019) (refusing to expand Miller even further to

impose a categorical [**24] ban on life without parole sentences for

intellectually disabled defendants).

Appellant in these cases has judicially confessed to killing five

women over the course of several years. He was almost 26 years old

when he committed the first murder, in 2012.

10 See

also Harmelin, 501 U.S. at 999 (Kennedy, J., concurring)

("[T]he Eighth Amendment does not mandate adoption of any one

Jorge Aristotelidis

Page 20 of 20

635 S.W.3d 660, *671; 2021 Tex. Crim. App. LEXIS 1202, **25

Id. at 25 (internal citation omitted). We

therefore agree with the State that Harmelin

should control. See 501 U.S. at 100607 [**26] (Kennedy, J., concurring) ("We

have never invalidated a penalty mandated

by a legislature based only on the length of

sentence, and, especially with a crime as

severe as this one, we should do so only in

the most extreme circumstances."). HN18[

] An intellectually disabled capital

murderer may be, as the United States

Supreme Court has concluded, categorically

less culpable for his offense than the

ordinary adult capital murderer, and

therefore insulated from the death penalty;

but he is no less dangerous for it—and we

are aware of no evidence that he will simply

grow out of those aspects of his condition

that may have contributed [*672] to his

commission of his offense in the same way

that a juvenile offender will eventually

become an adult.

court of appeals and affirm the judgment of

the trial court.

DELIVERED: December 15, 2021

PUBLISH

End of Document

Society has a substantial need to protect

itself from intellectually disabled murderers.

HN19[ ] We therefore conclude that the

incapacitation

justification

renders

constitutionally acceptable the Legislature's

policy choice to mandate a punishment of

life without parole as an alternative to the

death penalty for that category of capital

murder

offenders

in

Texas—

notwithstanding

Miller.

Appellant's

mandatory sentences of life without parole

do not violate the Eighth Amendment.

IV. [**27] CONCLUSION

Accordingly, we reverse the judgment of the

penological theory.").

Jorge Aristotelidis