PD-0787-18 12/12/2018
1. “The Court of Appeals erred in ruling that appellant’s Miller v. Alabama claim was forfeited by inaction.”
2. “The Court of Appeals erred by ruling the age of the defendant at the time of the offense is an affirmative defense for which the defendant bears the burden of proof.”
3. “Even if defendants bear the burden to prove when they were born, the Court of Appeals erred in affirming the instant judgment because the trial court never secured an express waiver from appellant, admission from appellant, or finding of fact that appellant was indeed over the age of eighteen [18] on October 22, 2014.”
Franklin was convicted of capital murder and sentenced to life without parole. He argued on appeal that his sentence was cruel and unusual under Miller v. Alabama, 567 U.S. 460 (2012), and contrary to Tex. Penal Code § 12.31(a)(1) because the State offered no evidence he was at least 18 on the date of the offense. Relying on its own precedent, the court of appeals held that minority is an affirmative defense. See Garza v. State, 453 S.W.3d 548, 555 (Tex. App.—San Antonio 2014). After noting that the record is devoid of evidence of Franklin’s birth date and that he did not object even when the State initially sought the death penalty, the court held that Franklin could not complain on appeal because he failed to raise the issue at trial.
Franklin makes three related arguments. First, his complaint should have been addressed because neither Miller claims nor sufficiency claims are forfeited by inaction. He adds that a hearing should have been ordered because the silent record might mean that the State waived the death penalty because he was a minor at the time of the offense. Second, he says that minority is not an affirmative defense; rather, majority is a precondition for increased punishment that should be proven by the State beyond a reasonable doubt. It is not designated as an affirmative defense nor could it be reasonably treated as one given the State is as or more likely to have access to that information as a defendant. Third, if he did bear a burden at trial, the trial court prevented him from satisfying the burden or obtaining a finding by “prematurely” releasing the jury.
