Damian Lamon Murkledove v. State ( 2014 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-12-00194-CR
    DAMIAN LAMON MURKLEDOVE                                                  APPELLANT
    V.
    THE STATE OF TEXAS                                                             STATE
    ----------
    FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
    ----------
    OPINION
    ----------
    I. INTRODUCTION
    A jury convicted Appellant Damian Lamon Murkledove of capital murder,
    and in accordance with the mandatory sentencing statute, the trial court
    sentenced him to life in prison without the possibility of parole. See Tex. Penal
    Code Ann. §§ 12.31(a)(2), 19.03(a)(2) (West Supp. 2013).            In ten points, he
    complains of the jury instructions, the trial court’s instructions to the venire panel,
    the admission of his written statements, and the constitutionality of mandatory life
    without parole sentencing. We will affirm.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    One evening after Murkledove played cards with friends, Dominique Jones
    asked to speak with him outside. Jones informed Murkledove that he wanted to
    burglarize the house of their mutual acquaintance, Daniel Garner. Jones told
    Murkledove that he knew when the house would be vacant but that if Garner
    happened to be there, Jones “would smoke him.” Jones offered for Murkledove
    to participate in the break-in. Murkledove went home that night and thought
    about what Jones had told him.
    The following morning, after Murkledove showered, he texted Jones and
    said he “might need to hit . . . a lick,” which means to break into a house and
    steal property. Jones responded that he was going to burglarize Garner’s house
    and asked if Murkledove could find a ride. Murkledove called Bryan Jones,1 who
    agreed to provide transportation in exchange for $125. Murkledove then texted
    Garner to ask if he was at work; Murkledove was afraid that if Garner was home
    during the break-in, Jones might shoot him. Garner said he was not at work.
    Bryan picked up Murkledove, and the two drove to Jones’s house to get
    him. After picking up Jones, they went to Jones’s grandmother’s house so that
    Jones could get his gun from the house. They then drove to Garner’s house, and
    1
    Bryan Jones is referred to as “Bryan”; Dominique Jones is referred to as
    “Jones.”
    2
    Bryan waited in the car while Murkledove and Jones walked up to the house.
    Jones opened the door and saw Garner inside playing videogames. Jones shot
    and killed him. Jones and Murkledove loaded Bryan’s vehicle with items from
    Garner’s home, including a television, two X-box gaming systems, a computer, a
    basket full of purses, a small lockbox, and an assault rifle.
    The men drove to Jones’s grandmother’s house. Jones told Murkledove to
    “sneak” the stolen rifle inside the house. Jones’s uncle opened the lockbox in the
    backyard, and they found prescription medicine inside. Murkledove threw the
    medicine in the sewer across the street. Jones, Murkledove, and Bryan drove to
    another house, where they traded the TV for a pair of tire rims, some marijuana,
    and money. The men returned to Jones’s grandmother’s house, where they
    played dice for a while before Bryan drove Jones and Murkledove home. Jones
    took the purses with him to give to his mother.
    III. JURY INSTRUCTIONS
    Murkledove’s first through fourth and sixth through eighth points all involve
    the trial court’s jury instructions. We will address each of his complaints below.
    A. Standard of Review
    The purpose of the jury charge is to inform the jury of the applicable law
    and guide the jury in its application in the case, and the trial judge is ultimately
    responsible for the charge’s accuracy. Delgado v. State, 
    235 S.W.3d 244
    , 249
    (Tex. Crim. App. 2007); see Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007).
    In our review of a jury charge, we first determine whether error occurred; if error
    3
    did not occur, our analysis ends. Kirsch v. State, 
    357 S.W.3d 645
    , 649 (Tex.
    Crim. App. 2012). If error occurred, whether it was preserved determines the
    degree of harm required for reversal. 
    Id. Generally, a
    defendant is entitled to a jury instruction on every defensive
    issue raised by the evidence when requested. Allen v. State, 
    253 S.W.3d 260
    ,
    267 (Tex. Crim. App. 2008). A defense is supported or raised by the evidence “if
    there is some evidence, from any source, on each element of the defense that, if
    believed by the jury, would support a rational inference that that element is true.”
    Shaw v. State, 
    243 S.W.3d 647
    , 657–58 (Tex. Crim. App. 2007), cert. denied,
    
    553 U.S. 1059
    (2008).      The defendant bears the burden of showing some
    evidence exists to support each element of the defense. Juarez v. State, 
    308 S.W.3d 398
    , 404 (Tex. Crim. App. 2010); 
    Shaw, 243 S.W.3d at 657
    –58. A trial
    court may refuse an instruction on a defensive theory if the issue was not raised
    by the evidence. See 
    Shaw, 243 S.W.3d at 657
    –58. When reviewing a trial
    court’s decision to deny a requested defensive instruction, “we view the evidence
    in the light most favorable to the defendant’s requested submission.” Bufkin v.
    State, 
    207 S.W.3d 779
    , 782 (Tex. Crim. App. 2006).
    B. Instruction on the Law of Parties
    In his first two points, Murkledove argues that by including part of the
    definition of the offense of conspiracy in the jury charge, the court actually
    instructed the jury that it could convict him as a party to the more serious offense
    4
    of capital murder if the jury found him guilty of conspiracy, an offense for which
    he was not indicted.
    A person commits the offense of capital murder when he intentionally
    causes the death of an individual during the course of committing or attempting
    to commit burglary or robbery. Tex. Penal Code Ann. § 19.03(a)(2); see also 
    id. §§ 19.02(b)(1),
    29.02(a), 30.02(a) (West 2011). A person commits the offense of
    criminal conspiracy if, with the intent that a felony be committed, he agrees with
    one or more persons that they or one or more of them engage in conduct that
    would constitute the felony offense. 
    Id. § 15.02(a)(1)
    (West 2011).
    A person may be convicted as a party to an offense if the offense is
    committed by his own conduct, by the conduct of another for which he is
    criminally responsible, or both. 
    Id. § 7.01(a)
    (West 2011). The law of parties, set
    forth in penal code section 7.02, may be applied to a case even though no such
    allegation is contained in the indictment. Montoya v. State, 
    810 S.W.2d 160
    , 165
    (Tex. Crim. App. 1989), cert. denied, 
    502 U.S. 961
    (1991); see Tex. Penal Code
    Ann. § 7.02 (West 2011). Under section 7.02(a), a person may be found guilty of
    an offense as a party to an offense if “acting with intent to promote or assist the
    commission of the offense, he solicits, encourages, directs, aids, or attempts to
    aid the other person to commit the offense.” Tex. Penal Code Ann. § 7.02(a)(2).
    Section 7.02(b) provides another theory of party liability as a co-conspirator:
    If, in the attempt to carry out a conspiracy to commit one
    felony, another felony is committed by one of the conspirators, all
    conspirators are guilty of the felony actually committed, though
    5
    having no intent to commit it, if the offense was committed in
    furtherance of the unlawful purpose and was one that should have
    been anticipated as a result of the carrying out of the conspiracy.
    
    Id. § 7.02(b).
    Here, the abstract portion of the court’s charge included instructions on the
    law of parties from subsections (a) and (b) of section 7.02. It also included a
    definition of the term “conspiracy” as follows: “The term ‘conspiracy’ means an
    agreement with one or more persons that they or one or more of them engage in
    conduct that would constitute a felony.” The application portion of the court’s
    charge authorized Murkledove’s conviction for capital murder as the perpetrator
    of Garner’s death, as a party to the offense under the law of parties set forth in
    section 7.02(a), or as a party to the offense under the law of parties set forth in
    section 7.02(b). Specifically regarding the third theory, the charge instructed the
    jury:
    If you find from the evidence beyond a reasonable doubt that
    Damian Murkledove and Dominique Jones entered into an
    agreement to commit the offense of robbery or burglary of a
    habitation as above defined of Daniel Garner and pursuant to that
    agreement, they did carry out their conspiracy and that on or about
    the 19th day of February, 2010 in Tarrant County, Texas, while in the
    course of committing such robbery or burglary, Dominique Jones
    intentionally caused the death of Daniel Garner by shooting him with
    a firearm, and that the defendant Damian Murkledove pursuant to
    the conspiracy, if any, with the intent to assist Dominique Jones in
    the commission of said robbery or burglary, then and there at the
    time of the shooting was acting with and aiding or attempting to aid
    Dominique Jones in the execution of the robbery or burglary of
    Daniel Garner, if any, and that the shooting of Daniel Garner was
    committed in furtherance of the conspiracy, if any, of Damian
    Murkledove and Dominique Jones to rob Daniel Garner or to
    burglarize the home of Daniel Garner and that the shooting of Daniel
    6
    Garner, if any, was an offense that should have been anticipated as
    a result of the carrying out of the conspiracy, then you will find the
    defendant, Damian Murkledove, guilty of Capital Murder as charged
    in the indictment.
    The court of criminal appeals, when faced with an almost identical jury
    instruction to the one at issue here, has addressed the same argument that
    Murkledove advances here. See 
    Montoya, 810 S.W.2d at 165
    . In Montoya, the
    court of criminal appeals rejected the appellant’s argument that the inclusion of
    the theory of conspiracy in the court’s charge erroneously allowed the jury to
    consider whether the appellant was guilty of the separate offense of criminal
    conspiracy under penal code section 15.02. 
    Id. The court
    held that the charge,
    which also defined the term “conspiracy,” “merely contained an alternative
    ‘parties’ charge as provided in [penal code section] 7.02.” Id.; see also English v.
    State, 
    592 S.W.2d 949
    , 954 (Tex. Crim. App.) (noting that section 7.02(b) “does
    not address itself to the offense of conspiracy, but to an [a]ttempt to carry out a
    conspiracy[]; it encompasses attempted or completed offenses that are the object
    of the conspiracy”), cert. denied, 
    449 U.S. 891
    (1980).
    Contrary to Murkledove’s argument, the application of section 7.02(b) and
    the inclusion of the definition of the term “conspiracy” from section 15.02 did not
    permit the jury to convict him of capital murder under the theory of party liability if
    it found him guilty of the offense of conspiracy.       See Gilmore v. State, 
    397 S.W.3d 226
    , 245 (Tex. App.—Fort Worth 2012, pet. ref’d); Wood v. State, 
    4 S.W.3d 85
    , 89 (Tex. App.—Fort Worth 1999, pet. ref’d); see also Ladd v. State, 3
    
    7 S.W.3d 547
    , 565 (Tex. Crim. App. 1999) (holding that defining term “conspiracy”
    as that term is used in section 7.02(b) was not error), cert. denied, 
    529 U.S. 1070
    (2000). Instead, the charge properly allowed the jury to find Murkledove guilty of
    capital murder under the law of parties. See 
    Wood, 4 S.W.3d at 89
    .
    We overrule Murkledove’s first and second points.
    C. No Instruction on Criminal Conspiracy and Its Sentencing Range
    In his third point, Murkledove argues that the trial court erred by not
    instructing the jury that it could convict him of criminal conspiracy and by not
    including the penalty range for that offense.2
    Murkledove did not request a lesser-included offense instruction on
    conspiracy.   The trial court has no duty to sua sponte instruct the jury on a
    lesser-included offense because a lesser-included offense, like a defensive
    issue, is not “applicable to the case” absent a request for its inclusion in the jury
    charge. See Tolbert v. State, 
    306 S.W.3d 776
    , 781 (Tex. Crim. App. 2010).
    Regarding an instruction on the penalty range for conspiracy, Murkledove
    was not charged with conspiracy, the jury did not receive an instruction on it, and
    in any event, an instruction regarding punishment is not proper in the guilt-
    innocence stage of trial. See Staggs v. State, 
    503 S.W.2d 587
    , 588 (Tex. Crim.
    App. 1974) (“[I]nclusion of information regarding punishment in the charge at the
    2
    The offense of criminal conspiracy is “one category lower than the most
    serious felony that is the object of the conspiracy,” here, capital murder. See
    Tex. Penal Code Ann. § 15.02(d).
    8
    guilt-innocence stage is improper.”); see also Tex. Code Crim. Proc. Ann. art.
    37.07, § 2(a) (West Supp. 2013) (providing that trial court shall instruct jury on
    issue of guilt or innocence, without authorizing jury to pass upon the punishment
    to be imposed).
    We overrule Murkledove’s third point.
    D. Instruction on Principal or Party
    In his fourth point, Murkledove argues that the trial court erred by including
    in the jury instructions an instruction that it could convict him as either a principal
    or a party. Murkledove argues that this instruction was erroneous because the
    indictment did not contain a parties allegation.
    It is well-settled that a jury may be charged on the law of parties even
    though no such allegation is contained in the indictment. Marable v. State, 
    85 S.W.3d 287
    , 287 & n.2 (Tex. Crim. App. 2002) (collecting cases); see Adames v.
    State, 
    353 S.W.3d 854
    , 861 (Tex. Crim. App. 2011) (reaffirming that state and
    federal law both specify that due process does not require defendant’s culpability
    as a party to be plead in charging instrument), cert. denied, 
    132 S. Ct. 1763
    (2012).     “This rule applies not only to the law of parties found in [s]ection
    7.02(a)(2) [of the Texas Penal Code] but also the law of parties found in [s]ection
    7.02(b).”    
    Montoya, 810 S.W.2d at 165
    .       Thus, the trial court did not err by
    including an instruction on the law of parties in the jury charge even though it was
    not pled in the indictment.
    We overrule Murkledove’s fourth point.
    9
    E. No Instruction on Independent Impulse Defense
    In his sixth point, Murkledove argues that the trial court erred by denying
    his request for a jury instruction on the law of independent impulse. The theory
    behind an independent impulse instruction is that, although the defendant had
    agreed to participate in some form of offense rising to the level of a felony, the
    offense for which he is being prosecuted arose from an independent impulse.
    See Mayfield v. State, 
    716 S.W.2d 509
    , 515 (Tex. Crim. App. 1986), overruled by
    Solomon v. State, 
    49 S.W.3d 356
    (Tex. Crim. App. 2001). Here, Murkledove
    argues that he was entitled to an instruction on independent impulse because
    evidence showed that he was “admittedly intent” on burglarizing Garner’s home
    but that he did not anticipate that Jones would shoot Garner.
    The trial court must instruct the jury on properly-requested statutory
    defenses raised by the evidence. Walters v. State, 
    247 S.W.3d 204
    , 208–09
    (Tex. Crim. App. 2007); Brown v. State, 
    955 S.W.2d 276
    , 279 (Tex. Crim. App.
    1997). But a defense that is not recognized by the legislature in the relevant
    statute as either a defense or as an affirmative defense does not warrant a
    separate instruction.   See Giesberg v. State, 
    984 S.W.2d 245
    , 246–47 (Tex.
    Crim. App. 1998), cert. denied, 
    525 U.S. 1147
    (1999). Independent impulse is
    not a listed statutory defense in the penal code. See 
    Solomon, 49 S.W.3d at 368
    .    As the court of criminal appeals has explained, an instruction on
    independent impulse is merely a negation of elements in the State’s case;
    therefore, “its inclusion would be superfluous, and in fact, would be an
    10
    impermissible comment on the weight of the evidence.” Id.; see 
    Walters, 247 S.W.3d at 209
    –10; 
    Giesberg, 984 S.W.2d at 250
    .
    Here, Murkledove’s proposed defensive issue would simply negate the
    party-liability theory of the State’s case; all that was required, then, was for the
    appropriate portions of the jury charge to track the language of section 7.02(b).
    See 
    Solomon, 49 S.W.3d at 368
    . In addressing Murkledove’s first two points
    above, we set out the applicable portions of the jury charge, which track the
    language of penal code section 7.02(b). The trial court did not err by denying
    Murkledove’s request for an instruction on the law of independent impulse.
    We overrule Murkledove’s sixth point.
    F. No Instruction on Necessity Defense
    In his seventh point, Murkledove argues that the trial court erred by
    denying his request for a jury instruction on the defense of necessity. He argues
    that evidence existed that he acted out of necessity to preserve his own life
    because Jones said he would kill Garner and Murkledove feared that if he did not
    participate, Jones would kill him too.
    The penal code provides that it is a defense to prosecution if:
    (1)  the actor reasonably believes the conduct is immediately
    necessary to avoid imminent harm;
    (2)   the desirability and urgency of avoiding the harm clearly
    outweigh, according to ordinary standards of reasonableness, the
    harm sought to be prevented by the law proscribing the conduct; and
    (3) a legislative purpose to exclude the justification claimed for the
    conduct does not otherwise plainly appear.
    11
    Tex. Penal Code Ann. § 9.22 (West 2011); see 
    id. § 9.02
    (West 2011).             In
    addition to the statutory elements, the court of criminal appeals has held that a
    defendant must present evidence “essentially admit[ting] to every element of the
    offense including the culpable mental state” in order to raise a necessity defense.
    
    Shaw, 243 S.W.3d at 659
    .
    The first prong of the necessity defense requires evidence of a reasonable
    belief of both immediate necessity and imminent harm. Tex. Penal Code Ann.
    § 9.22. “Reasonable belief” means a belief that would be held by an ordinary
    and prudent person in the same circumstances as the defendant.             See 
    id. § 1.07(a)(42)
    (West Supp. 2013). A defendant’s sincere belief that his conduct is
    immediately necessary to avoid imminent harm is unreasonable as a matter of
    law if the undisputed facts demonstrate a complete absence of “immediate
    necessity” or “imminent harm” as legally defined. Dewalt v. State, 
    307 S.W.3d 437
    , 454 (Tex. App.—Austin 2010, pet. ref’d); see Pennington v. State, 5
    4 S.W.3d 85
    2, 857 (Tex. App.—Fort Worth 2001, pet. ref’d). “‘Imminent’ means
    something that is immediate, something that is going to happen now.” 
    Dewalt, 307 S.W.3d at 454
    . Harm is imminent when there is an emergency situation and
    it is “immediately necessary” to avoid that harm, in other words, when a “split-
    second decision” is required without time to consider the law. 
    Pennington, 54 S.W.3d at 857
    ; see also 
    Dewalt, 307 S.W.3d at 454
    .
    Here, Murkledove points to a written statement that he made to police as
    support for his requested jury instruction on necessity. Reviewing this statement
    12
    and the entirety of the record in the light most favorable to Murkledove’s
    necessity defense, no evidence shows any imminent danger to him or his family.
    His statement to police does not demonstrate that he had to make a “split-second
    decision” in order to avoid harm to himself or his family. See 
    Dewalt, 307 S.W.3d at 454
    .   Instead, his statement shows that he (1) learned the night before
    Garner’s death that Jones wanted to burglarize Garner’s home and would kill
    Garner “if it came down to it,” (2) thought about Jones’s proposal when he went
    home that night, (3) texted Jones while still at home the following morning to say
    that he needed to burglarize a house, (4) arranged for transportation to Garner’s
    house while still at home, and (5) rode with Bryan to pick up Jones and then rode
    with Bryan and Jones to pick up a gun before going to Garner’s house.
    Moreover, nothing in the record reflects that Jones made any threats—immediate
    or otherwise—to Murkledove if he did not assist with the break-in. Even if one
    could infer that Murkledove feared the possibility of or potential for harm to
    himself or his family, no evidence exists upon which an inference could be made
    that harm was imminent when he decided to act. See Washington v. State, 
    152 S.W.3d 209
    , 212 (Tex. App.—Amarillo 2004, no pet.) (“[T]he evidence permits
    one to reasonably infer no more than that appellant feared the possibility of or
    potential for harm and acted in response thereto.”); see also Scroggs v. State,
    
    396 S.W.3d 1
    , 13 (Tex. App.—Amarillo 2010, pet. ref’d, untimely filed) (noting
    that appellants had overnight to deliberate the situation before they embarked on
    their felonious conduct).   Reviewing the record in the light most favorable to
    13
    Murkledove’s necessity defense, we hold that no evidence exists that
    Murkledove reasonably believed his conduct was immediately necessary to avoid
    imminent harm. See Tex. Penal Code Ann. § 9.22. Thus, the trial court did not
    err by denying Murkledove’s request for an instruction on necessity.
    We overrule Murkledove’s seventh point.
    G. No Instruction on Duress Defense
    In his eighth point, Murkledove argues that the trial court erred by denying
    his request for a jury instruction on the defense of duress.     He argues that
    evidence existed that he acted under duress because Jones threatened him.
    The affirmative defense of duress applies when the accused “engaged in
    the proscribed conduct because he was compelled to do so by threat of imminent
    death or serious bodily injury to himself or another.” 
    Id. § 8.05(a)
    (West 2011).
    To raise the defense, the evidence must show both compulsion and imminency.
    Compulsion “exists only if the force or threat of force would render a person of
    reasonable firmness incapable of resisting the pressure,” and imminency exists
    where the person making the threat intends and is prepared to carry out the
    threat immediately on the accused’s failure to commit the charged offense. 
    Id. § 8.05(c);
    Anguish v. State, 
    991 S.W.2d 883
    , 886 (Tex. App.—Houston [1st Dist.]
    1999, pet. ref’d) (holding that threat of future harm cannot be construed as
    “imminent” under the statute).
    As we stated above in addressing Murkledove’s seventh point regarding
    the necessity defense, no evidence exists in the record upon which an inference
    14
    could be made that any threats perceived by Murkledove were imminent such
    that he was compelled to participate in the break-in that led to Garner’s murder.
    See Tex. Penal Code Ann. § 8.05(c); 
    Anguish, 991 S.W.2d at 886
    . Murkledove
    stated that he was worried that Jones would kill him if he did not participate, but
    there is no evidence that Jones made a specific, objective threat to Murkledove
    or another if Murkledove did not participate in the break-in. See Cameron v.
    State, 
    925 S.W.2d 246
    , 250 (Tex. App.—El Paso 1995, no pet.) (finding no
    objective basis for a claim of compulsion when evidence showed only that
    defendant was afraid of co-conspirator’s temper and followed his orders). And
    although Jones did threaten to kill Garner during the break-in “if it came to that,”
    after learning this, Murkledove went home, went to bed, woke up the next
    morning, showered, and contacted Jones on his own initiative to discuss “hitting
    a lick.” While still at home, Murkledove then arranged for a driver to take him and
    Jones to Garner’s house. Any threats perceived by Murkledove when he learned
    of Jones’s plan were not imminent such that he was entitled to a duress
    instruction. See Tex. Penal Code Ann. § 8.05(c); 
    Anguish, 991 S.W.2d at 886
    .
    Further, the defense of duress is unavailable if a defendant “intentionally,
    knowingly, or recklessly placed himself in a situation in which it was probable that
    he would be subjected to compulsion.” Tex. Penal Code Ann. § 8.05(d). For the
    above reasons, we hold that the trial court did not err by denying Murkledove’s
    request for a jury instruction on duress.
    We overrule Murkledove’s eighth point.
    15
    IV. SECTION 12.31 INSTRUCTION TO VENIRE PANEL
    In his fifth point, Murkledove argues that the trial court erred by not
    instructing the potential jurors that a sentence of life without parole is mandatory
    upon conviction of a capital felony.
    Section 12.31 of the penal code requires that in a capital felony trial in
    which the State does not seek the death penalty, prospective jurors should be
    informed that a sentence of life imprisonment without parole is mandatory on
    conviction of the capital felony. 
    Id. § 12.31(b)(2).
    The record reflects that the trial court did not instruct the jurors pursuant to
    section 12.31(b). However, Murkledove did not object or request that the trial
    court give such an instruction. As a prerequisite for presenting a complaint for
    appellate review, rule of appellate procedure 33.1(a) requires a timely objection
    with sufficient specificity to make the trial court aware of the complaint. See Tex.
    R. App. P. 33.1(a); Smith v. State, 
    420 S.W.3d 207
    , 214 (Tex. App.—Houston
    [1st Dist.] 2013, pet. ref’d) (holding failure to request trial court instruct panel
    pursuant to section 12.31(b) forfeited complaint); Flowers v. State, 
    959 S.W.2d 644
    , 646 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (same).
    Moreover, even if Murkledove had preserved his complaint for appeal, he
    was not harmed by the trial court’s failure to instruct the potential jurors pursuant
    to penal code section 12.31(b). See Ford v. State, 
    73 S.W.3d 923
    , 925–26 (Tex.
    Crim. App. 2002) (“Under our harmless error rule the violation of a mandatory
    statute does not, by itself, call for the reversal of a conviction.”); see also Tex. R.
    16
    App. P. 44.2(b). In conducting a harm analysis of a jury-formation error, a court
    should consider what right is protected by the statute. 
    Ford, 73 S.W.3d at 925
    –
    26; McCluer v. State, No. 14-09-00058-CR, 
    2010 WL 1438957
    , at *9 (Tex.
    App.—Houston [14th Dist.] Apr. 13, 2010, pet. ref’d) (not designated for
    publication) (applying Ford to section 12.31(b) error), cert. denied, 
    132 S. Ct. 319
    (2011). The right protected by section 12.31(b) is the statutory right to have the
    prospective jurors informed that the State is not seeking the death penalty and
    that a sentence of life imprisonment without parole is mandatory upon conviction
    of the capital offense. See Tex. Penal Code Ann. § 12.31(b).            And in jury-
    formation issues, the substantial right at issue is the ability to empanel only those
    jurors who are qualified to serve. See Gray v. State, 
    233 S.W.3d 295
    , 301 (Tex.
    Crim. App. 2007).      If an appellant does not present record evidence that
    demonstrates that the trial court’s error deprived him of a jury comprised of
    legally qualified jurors, he suffered no harm. 
    Id. Here, the
    record reflects that although the trial court did not instruct the
    potential jurors of the mandatory life sentence, the potential jurors ultimately
    received this information by defense counsel during voir dire. Defense counsel
    told the prospective jurors, “Capital murder has got two punishments, the death
    penalty or life without parole. Real simple. It’s the death penalty or life without
    parole. [The prosecutor] told you they waived the death penalty. You find him
    guilty of capital murder, he never leaves the prison.”       Murkledove points to
    nothing in the record indicating that the lack of a section 12.31(b) instruction by
    17
    the trial court resulted in the empaneling of unqualified jurors. See id.; 
    Smith, 420 S.W.3d at 214
    ; McCluer, 
    2010 WL 1438957
    , at *9.
    We overrule Murkledove’s fifth point.
    V. ADMISSION OF WRITTEN STATEMENTS
    In his ninth point, Murkledove argues that the trial court erred by overruling
    his objections to the admission of his handwritten statements on photographs of
    the exteriors of three houses admitted as State’s Exhibits 9, 10, and 11. He
    argues that the statements were not made voluntarily and that they violate code
    of criminal procedure article 38.22’s requirement that certain warnings and a
    waiver of those warnings appear on the face of the statements.3 See Tex. Code
    Crim. Proc. Ann. art. 38.22, § 2 (West Supp. 2013).
    We need not determine whether the trial court erred by admitting the
    handwritten statements on State’s Exhibits 9, 10, and 11 because even
    assuming error, we hold that any error was harmless under the standard for
    constitutional error.4 See Tex. R. App. P. 44.2(a); 
    Kane, 173 S.W.3d at 594
    3
    Murkledove raised these issues in a pretrial motion to suppress, but after
    a hearing on the issues, the trial court deferred ruling on them. When the State
    offered those exhibits at trial, Murkledove reurged his objections, which the trial
    court overruled. Thus, Murkledove properly preserved this issue for appeal. See
    Tex. R. App. P. 33.1(a).
    4
    The trial court did not make written findings on the voluntariness issue, but
    because we assume error and find no harm, we need not abate for findings on
    voluntariness. See Randle v. State, No. 10-11-00117-CR, 
    2013 WL 1188647
    , at
    *5–6 (Tex. App.—Waco Mar. 21, 2013, pet. ref’d) (mem. op., not designated for
    publication) (assuming statement involuntary when no voluntariness hearing held
    and conducting harm analysis); Kane v. State, 
    173 S.W.3d 589
    , 594 (Tex. App.—
    18
    (applying rule 44.2(a) to error in admitting involuntary statement). In applying the
    “harmless error” test, our primary question is whether there is a “reasonable
    possibility” that the error might have contributed to the conviction. Mosley v.
    State, 
    983 S.W.2d 249
    , 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied,
    
    526 U.S. 1070
    (1999).
    Our harmless error analysis should not focus on the propriety of the
    outcome of the trial; instead, we should calculate as much as possible the
    probable impact on the jury in light of the existence of other evidence. Wesbrook
    v. State, 
    29 S.W.3d 103
    , 119 (Tex. Crim. App. 2000), cert. denied, 
    532 U.S. 944
    (2001). We “should take into account any and every circumstance apparent in
    the record that logically informs an appellate determination whether ‘beyond a
    reasonable doubt [that particular] error did not contribute to the conviction or
    punishment,’” and if applicable, we may consider the nature of the error, the
    extent that it was emphasized by the State, its probable collateral implications,
    and the weight a juror would probably place on the error. Snowden v. State, 
    353 S.W.3d 815
    , 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). This
    requires us to evaluate the entire record in a neutral, impartial, and even-handed
    manner, not “in the light most favorable to the prosecution.” Harris v. State, 790
    Fort Worth, 2005, no pet.) (same); see also Tex. Code Crim. Proc. Ann. art.
    38.22, § 6 (requiring specific fact findings by trial court when question of
    voluntariness of statement raised); Vasquez v. State, 
    411 S.W.3d 918
    , 920 (Tex.
    Crim. App. 2013) (mandating abatement to trial court for findings on
    voluntariness when issue raised at trial).
    
    19 S.W.2d 568
    , 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds
    by 
    Snowden, 353 S.W.3d at 821
    –22.
    The statements at issue here were handwritten by Murkledove on
    photographs of three separate houses. On State’s Exhibit 9, Murkledove wrote
    that the assault rifle was left at the house in the photograph, the lock box was
    broken open there, and that Jones may have given some purses to his
    grandmother who lives there. On State’s Exhibit 10, Murkledove wrote that the
    house in the photograph belonged to Jones’s mother and was where Murkledove
    had last seen the tire rims and the rest of the purses; Murkledove also wrote that
    the murder weapon “might be a couple houses down under the mattress or in his
    car.” Murkledove wrote on State’s Exhibit 11 that the house in the photograph
    was possibly where Jones traded the TV and Xbox for marijuana and money.
    After making the complained-of written statements on the photographs,
    Murkledove gave a detailed written statement, in which he stated that he
    discussed breaking into Garner’s house with Jones the night before Garner’s
    murder, that he arranged transportation to Garner’s house the following day so
    that he and Jones could steal Garner’s property, that Jones brought a gun with
    him and said that if Garner was there, he would have to kill him, and that
    Murkledove entered the house with Jones and stole property from inside after
    Jones shot and killed Garner. In that statement, admitted as State’s Exhibit 8A,
    Murkledove also explained that after the break-in, they hid the stolen rifle and
    opened the lockbox of pills at Jones’s grandmother’s house, they sold the TV at
    20
    another house, and Jones took the murder weapon home with him. Murkledove
    stated that Jones usually kept his gun in his house, which is down the street from
    his grandmother’s house, or in his car.       Murkledove does not challenge the
    admissibility of that statement on appeal.5
    The handwritten statements on the photographs of the houses tended to
    corroborate the most compelling evidence of the State’s case—Murkledove’s
    written statement admitted as State’s Exhibit 8A.       But other unobjected-to
    evidence at trial also showed that Murkledove directed police to three houses
    and, upon execution of search warrants on those houses, corroborated
    Murkledove’s written statement about the location of the stolen property. See
    Leday v. State, 
    983 S.W.2d 713
    , 717 (Tex. Crim. App. 1998) (“It is well
    established that the improper admission of evidence does not constitute
    reversible error if the same facts are shown by other evidence which is not
    challenged.”) (quoting Crocker v. State, 
    573 S.W.2d 190
    , 201 (Tex. Crim. App.
    1978)). At trial, Detective Shane Drake with the Fort Worth Police Department
    testified without objection that he and another detective drove Murkledove by
    three houses pointed out by Murkledove and later prepared search warrants for
    those houses. Execution of those warrants revealed some of the items stolen
    from Garner’s house.
    5
    Murkledove also made several other written and oral statements prior to
    making the written statements on State’s Exhibits 9, 10, and 11 in which he
    admitted involvement in the break-in of Garner’s house; he does not challenge
    the admissibility of those statements on appeal.
    21
    We cannot say that the admission of State’s Exhibits 9, 10, and 11 moved
    the jury from a state of nonpersuasion to one of persuasion as to Murkledove’s
    guilt for the offense of capital murder. See 
    Wesbrook, 29 S.W.3d at 119
    ; see
    also Clay v. State, 
    240 S.W.3d 895
    , 904 (Tex. Crim. App. 2007) (stating that
    factors to consider in harm analysis are how important the evidence was to
    State’s case, whether evidence was cumulative of other evidence, and whether
    other evidence corroborated complained-of evidence on material points). Thus,
    assuming error and performing a harm analysis under rule 44.2(a), we hold
    beyond a reasonable doubt that any error did not contribute to Murkledove’s
    conviction.6 See Tex. R. App. P. 44.2(a).
    We overrule Murkledove’s ninth point.
    VI. LIFE WITHOUT PAROLE PUNISHMENT
    In his tenth point, Murkledove argues that his mandatory life sentence
    without parole constitutes cruel and unusual punishment under both the United
    States and Texas constitutions because he had just turned eighteen two months
    6
    Because we hold that any error was harmless under the heightened
    standard of rule 44.2(a), we need not analyze whether any error in admitting
    those same statements in violation of code of criminal procedure article 38.22
    violated Murkledove’s substantial rights under rule 44.2(b). See Tex. R. App. P.
    44.2(b), 47.1; see also Woods v. State, 
    152 S.W.3d 105
    , 118 (Tex. Crim. App.
    2004) (stating that the erroneous admission of an appellant’s statement in
    violation of article 38.22 amounts to nonconstitutional error), cert. denied, 
    544 U.S. 1050
    (2005).
    22
    before the offense and because he was convicted as a party to, not the
    perpetrator of, capital murder.7
    The Supreme Court has held that a mandatory life sentence without the
    possibility of parole for defendants under the age of eighteen at the time of their
    crimes violates the Eighth Amendment’s prohibition of cruel and unusual
    punishment.    Miller v. Alabama, 
    132 S. Ct. 2455
    , 2463, 2469 (2012).           But
    Murkledove had turned eighteen two months prior to Garner’s murder so Miller
    does not apply here. Murkledove was subject to Texas’s statutorily-mandated
    sentence of life without parole, which applies to individuals who commit offenses
    when they are eighteen years of age or older.        See Tex. Penal Code Ann.
    § 12.31(a)(2); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2013).
    Additionally, although the Supreme Court has held that the Eighth
    Amendment encompasses an individualized sentencing doctrine that precludes
    mandatory sentencing in cases in which the death penalty is sought, that is not
    the case for non-death-penalty sentencing, even life without parole.          See
    Harmelin v. Michigan, 
    501 U.S. 957
    , 994–95, 
    111 S. Ct. 2680
    , 2701–02 (1991).
    Texas courts have consistently held that the mandatory life sentence required
    under section 12.31(a) of the penal code and article 37.071, section 1 of the code
    of criminal procedure is not unconstitutional as cruel and unusual punishment
    under the Eighth Amendment and article I, section 13 of the Texas constitution.
    7
    Murkledove filed a pretrial motion on this issue, which the trial court
    denied, and raised the issue in his amended motion for new trial.
    23
    Cienfuegos v. State, 
    113 S.W.3d 481
    , 495 (Tex. App.—Houston [1st Dist.] 2003,
    pet. ref’d) (collecting cases); see Slater v. State, No. 02-11-00368-CR, 
    2013 WL 2631194
    , at *6 (Tex. App.—Fort Worth June 13, 2013) (mem. op., not designated
    for publication), pet. ref’d, 
    408 S.W.3d 876
    (Tex. Crim. App. 2013). This is true
    when the defendant has been convicted of capital murder under the theory of
    party liability set forth in penal code section 7.02(b). Battle v. State, 
    348 S.W.3d 29
    , 31 (Tex. App.—Houston [14th Dist.] 2011, no pet.); 
    Cienfuegos, 113 S.W.3d at 496
    . As we have previously stated, “It is well settled that a mandatory life
    sentence for the offense of capital murder is not unconstitutional.” Barnes v.
    State, 
    56 S.W.3d 221
    , 239 (Tex. App.—Fort Worth 2001, pet. ref’d), abrogation
    on other grounds recognized by Hurd v. State, 
    322 S.W.3d 787
    , 793 n.5 (Tex.
    App.—Fort Worth 2010, no pet.).
    Because Murkledove committed the offense after he turned eighteen years
    of age and because a mandatory life sentence for capital murder is not
    unconstitutional, we overrule Murkledove’s tenth point.
    VII. CONCLUSION
    Having overruled Murkledove’s ten points on appeal, we affirm the trial
    court’s judgment.
    /s/ Sue Walker
    SUE WALKER
    JUSTICE
    24
    PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
    DAUPHINOT, J. filed a dissenting opinion.
    PUBLISH
    DELIVERED: May 15, 2014
    25