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Determinate Sentence

Nov 21
Love8
juvenile determinate sentencing texas

Texas Juvenile Law: What is Determinate Sentencing?

By Juvenile

Determinate Sentencing Can Extend the Life of a Texas Juvenile Case

juvenile determinate sentencing texasIn the Texas juvenile justice system, a juvenile court has jurisdiction over a youthful offender if he or she is under the age of 17 at the time an offense is committed. The punishment for an offense typically can only last until a juvenile’s 19th birthday. We are often asked, “What happens if the juvenile is convicted of a serious offense? Is it possible for the court to impose a sentence that extends beyond the juvenile’s 19th birthday?” That is where Determinate Sentencing comes in. This post explains what Determinate Sentencing means and how it can impact a juvenile case.

What is Determinate Sentencing in Texas Juvenile Law?

Determinate sentencing creates a hybrid system whereby juveniles who have been adjudicated for severe criminal offenses are given a sentence that begins in the Texas Juvenile Justice Department (“TJJD”) and can potentially be transferred to the Texas Department of Criminal Justice (“TDCJ”) for a term of up to forty years.

Who requests a Determinate Sentence?

The prosecution has sole discretion as to whether to seek a determinate sentence. If the prosecutor decides to pursue a determinate sentence, he or she must file a petition indicating a child engaged in delinquent conduct with the court. Then, the prosecutor must present that petition to the grand jury for approval. If the petition is approved, then it becomes a determinate sentence case. However, if the petition is denied by the grand jury, the State’s only recourse would be to pursue the case as normal.

If a juvenile is adjudicated of a determinate sentence, then the judge or jury can assess an appropriate disposition, or punishment, in accordance with the determinate sentence range of punishment. This range is up to 40 years for a capital felony, first degree felony or an aggravated controlled substance felony, up to 20 years for a second degree felony, and up to 10 years for a third degree felony. Misdemeanors and state jail felonies are not eligible for determinate sentence under the Determinate Sentence Act.

Once the prosecutor’s request for a determinate sentence has been granted by the grand jury, he or she retains the power to later waive determinate sentencing so long as this occurs before the juvenile has been adjudicated. This often occurs in the course of plea negotiations, when the prosecutor offers an indeterminate sentence in exchange for the juvenile’s acceptance of the plea.

For indeterminate disposition, only the judge may assess punishment. However, for determinate sentence cases, the juvenile may choose either the judge or jury to assess disposition. If the juvenile would like the jury to decide punishment, he or she must file a written request with the judge prior to voir dire.

To what offenses can Determinate Sentencing apply?

Section 53.045 of the Texas Family Code provides a list of offenses that are eligible for determinate sentencing. Those offenses include:

  • habitual felony conduct;
  • murder;
  • capital murder;
  • manslaughter;
  • aggravated kidnaping;
  • sexual assault;
  • aggravated sexual assault;
  • aggravated assault;
  • aggravated robbery;
  • injury to a child, elderly individual or disabled individual;
  • felony deadly conduct involving discharging a firearm;
  • certain offenses involving controlled substances;
  • criminal solicitation;
  • indecency with a child;
  • criminal solicitation of a minor;
  • attempted murder or attempted capital murder;
  • arson, if bodily injury or death is suffered by any person by reason of the commission of the arson;
  • intoxication manslaughter, and criminal conspiracy.

What is the impact of a Determinate Sentence?

A juvenile who has been adjudicated of a determinate sentence will either be sentenced to placement in the TJJD or placed on probation.  In each case, the juvenile court retains jurisdiction over the juvenile up until the juvenile turns eighteen or nineteen.  For crimes committed before September 1, 2011, the juvenile remains in the juvenile system until his or her eighteenth birthday.

Juveniles who receive probation can be on probation for up to 10 years, which may extend past the time the juvenile reaches adulthood. When a juvenile on determinate sentence probation ages out of the juvenile system, the probation automatically expires unless the prosecutor requests a transfer hearing prior to the juvenile’s nineteenth birthday. If a transfer hearing is requested and held, the juvenile judge will decide whether to transfer the juvenile into the custody of an adult criminal court. If the request for transfer is granted, the county’s adult probation department would supervise the juvenile for the remainder of his or her probation.

The alternative to probation is for a juvenile to be sentenced to TJJD with the possibility of transfer to TDCJ. In this situation, the judge or jury imposes a sentence of a set number of years that may extend past the age of adulthood. A juvenile is required to complete a minimum length of stay at TJJD. Once he or she has completed that minimum length of stay, TJJD can parole the juvenile, if they choose. For those juveniles who are unable to complete their minimum length of stay prior to aging out of the juvenile system or who are not participating in TJJD programs or progressing satisfactorily towards rehabilitation, TJJD can request a transfer hearing. The transfer hearing, if requested, must be heard by the original juvenile judge who heard the case and it must take place prior to the juvenile’s 19th birthday. After hearing evidence at the hearing, the judge will then decide whether the youth should be transferred to adult prison to complete his or her sentence or whether the youth can be safely released on parole without putting the public safety at risk.

Texas Juvenile Crimes Defense Attorneys | Free consultation

Contact the Texas juvenile defense attorneys at Barnett Howard & Williams PLLC for a FREE consultation of your juvenile case. It is best to contact an attorney at the outset of a juvenile case. Do not wait until after you have attended a meeting with the district attorney. Call today!

Dec 22
Love1
Luke Williams Speaks About Ethan Couch

Possible Punishment Scenarios for Ethan Couch Once He is Apprehended

By Juvenile

What will happen to Ethan Couch?

Luke Williams Speaks About Ethan CouchWe’ve recently been asked about fugitive Ethan Couch, the Texas teenager that was adjudicated of intoxication manslaughter, and the potential consequences for the “affluenza” teen once he’s caught. Juvenile determinate sentencing in Texas is an area of law with which most people are unfamiliar.  In this post, attorney Luke Williams explains some of the possible punishment scenarios for Ethan Couch under the juvenile justice and adult criminal justice systems.

Has Ethan Couch violated his probation?

Once Ethan Couch is apprehended, the State will have to prove, by a preponderance of evidence, that the teen violated a term or condition of his probation. Because juvenile records are confidential under Texas law, the public or press has not been made known of the details of Couch’s probation up to this point. But typically – at the very least – a juvenile probation in Tarrant County requires a juvenile to abstain from the use of drugs and alcohol, avoid persons or places who are using drugs and alcohol, and report regularly to the juvenile probation department.

In light of the recent Twitter video showing what purports to be Ethan Couch at a party involving alcohol and drinking games, there could potentially be evidence that he violated his probation by being amongst persons and at a place where persons are using alcohol. This could be difficult to prove. But, the more pressing problem for the teen now is his disappearance. He would undoubtedly have been required to check in with the juvenile probation department on a regular basis or when requested. At this point, as evidenced by the arrest warrant that has been activated for him, we know that he not checked in with probation as required. So, the State will likely have a much easier case to prove that he’s violated his probation by absconding.

Juvenile Probation is Discharged When the Probationer Turns 19 Unless the State Acts to Transfer

Ethan Couch’s probation term is scheduled to extend beyond his 19th birthday. However, the juvenile court will have to discharge Couch on his 19th birthday unless the court has acted earlier to transfer the probation to the appropriate criminal adult County Community Supervision and Corrections Department. This can (and likely will) be done by motion of the state prosecutor in Couch’s case. If transferred, Couch would be under the jurisdiction of the county’s adult probation department and would face adult prison time should the probation be revoked. This would be the normal course of events had Couch not absconded.

What happens once the Ethan Couch is found?

If Couch is caught before he turns 19, and if the court finds that he has violated his probation, the court can either:

  • Keep him on juvenile probation with changing anything (highly unlikely);
  • Modify his probation to add new terms and conditions and keep him on probation; or
  • Revoke his probation to commit him to the custody of Texas Juvenile Justice Department (TJJD) for a determinate sentence that “does not exceed the original sentence assessed by the court” (10 years). The court could commit the juvenile for a shorter sentence than originally assessed, but not for a longer one. See our earlier post to read more about determinate sentences.

If Couch is caught after he turns 19, we can presume that the State will have filed a motion to transfer the probation to adult supervision. If the probation is transferred to adult court, and Couch is found to have violated the probation, then the court could sentence him to serve his original sentence (up to 10 years) in the Texas Department of Corrections – Institutional Division (otherwise known as the adult penitentiary).

Again, because juvenile records are confidential under Texas law, details of Couch’s probation up to this point are unclear. So, there could be other details and/or Orders issued by the judge in Couch’s case that could change or negate the possible scenarios mentioned above.

Regardless, the fact that Couch remains missing is not a good thing for his future.

Mar 23
Love0

An Improper Jury Instruction Matters Not

By Jury Trial

Texas Jury InstructionIt seems like all I write about anymore is the Court of Criminal Appeals reversing a Court of Appeals case and siding with the State. Well, this post is no different.

In Taylor v. State, the appellant was convicted of aggravated sexual assault and sentenced to 70 years confinement and a $10,000 fine for each offense. Much of the testimony at trial, however, related to acts appellant committed while he was a minor. The evidence showed that appellant began sexually abusing a young girl when he was 13 years old and she was 8. The abuse continued for several years, the final occurrence happening when appellant was 20 years old and the victim was 15.

Texas Penal Code Section 8.07(b) provides that unless a juvenile court waives (or has previously waived) jurisdiction and certifies an individual for criminal prosecution, “a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age.”  Accordingly, while evidence was admitted at trial regarding appellant’s acts before he turned 17, he can only be convicted of those acts that occurred after he was 17.

The trial court failed to instruct the jury of this requirement and the jury returned a guilty verdict. On appeal, appellant argued that the jury charges were erroneous because they did not limit the jury’s consideration to evidence of acts committed after he turned 17. The 1st Court of Appeals (Houston) held that the Court was required to instruct the jury that appellant could not be convicted of criminal acts committed before he turned 17, and that appellant was denied a fair and impartial trial as a result. The Court of Appeals reversed the case.

The CCA now reverses the Court of Appeals. It agrees with the Court of Appeals that the instruction should have been given to the jury, even if neither party requested the instruction. But the CCA held, nonetheless, that the error did not deprive appellant of a fair and impartial trial. The CCA states:

Here, the error was the omission of an instruction, rather than the presentation to the jury of an erroneous instruction…[T]he jury in this case could have convicted Appellant based upon evidence presented, even if the proper instruction had been given and Appellant’s pre-seventeen acts were disregarded by the jury. The evidence showed an eight-year pattern of escalating sexual abuse of J.G. by Appellant. Appellant turned 17 years old midway through the abusive period, meaning that he is subject to prosecution for his conduct beginning on that birthday…and evidence of molestation that occurred after that date was introduced at trial.

So, basically the CCA is saying – “We don’t know from the face of the record exactly which instances of abuse the jury believed, and we can’t say with 100% certainty that they believed any of the instances after appellant was 17, but we know they definitely believed something happened at some time.”

The CCA ultimately concludes that Appellant was not denied a fair and impartial trial. My question is – “How do we know that?” I realize that appellant said he didn’t commit any of the alleged acts and I also realize that the jury, by their verdict, believed that he did.  But how do we know that the jury didn’t conclude that the appellant was guilty of only those acts that occurred when he was a minor?  We don’t.