IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-88,430-01


                            EX PARTE ASHLEY ERVIN, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1074292-A IN THE 208TH DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam. Newell, J., not participating.

                                            OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). A jury convicted Applicant of capital murder.

The State did not seek the death penalty, and the trial court imposed an automatic sentence of life

without parole. TEX . PENAL CODE § 12.31 (eff. 09/01/2005 to 08/31/2009). The First Court of

Appeals affirmed the conviction. Ervin v. State, No.333 S.W.3d 187 (Tex. App.—Houston [1st

Dist.] 2010).

        Applicant contends that her sentence in this cause is unconstitutional because she was under
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eighteen years of age at the time she committed the offense. The trial court has entered findings of

fact confirming that Applicant was under the age of eighteen at the time she committed the capital

murder.

       In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held that a mandatory “life

without parole” sentence for a defendant who was under the age of eighteen at the time of the crime

violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In Ex parte Maxwell,

424 S.W.3d 66 (Tex. Crim. App. 2014), this Court held that Miller would be applied retroactively.

       The trial court, with the State’s agreement, recommends that relief be granted. The findings

and recommendation are supported by the habeas record. The sentence in Cause No. 1074292 in the

208th District Court of Harris County is vacated, and Applicant is remanded to the custody of the

Sheriff of Harris County for further sentencing proceedings in accordance with Ex parte Maxwell,

supra. The fact finder, after consideration of Applicant’s individual conduct, circumstances, and

character, shall be permitted to assess Applicant’s sentence at life with the possibility of parole or

life without parole. The trial court shall issue any necessary bench warrant within 10 days after the

mandate of this Court issues.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: June 20, 2018
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