No Need For a Proper Instruction. The Jury Probably Got it Right Anyway.

It 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. 

Juvenile Life Without Parole Sentence Affirmed

In 2005, the U.S. Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), holding that the Eighth Amendment prohibition against cruel and unusual punishment forbids the execution of juveniles (i.e. anyone under the age of 18). At that time, the juveniles in Texas that were on death row had their sentences commuted to Life with parole. Also in 2005, the Texas Legislature amended Section 12.31(a) of the Texas Penal Code to require Life Without Parole (LWOP) sentences for capital cases in which the State does not seek the death penalty. This new LWOP provision applied to offenses committed on or after September 1, 2005.

Consequently, because juveniles could no longer be sentenced to death, all juveniles convicted of a capital crime in Texas were automatically sentenced to LWOP. In 2009, however, the legislature again amended section 12.31(a), to provide, in relevant part:

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 [TDCJ] for life [i.e. with parole], if the individual’s case was transferred to the court under Section 54.02, Family Code.

The new life imprisonment (with parole) ceiling on juvenile capital offenses was not applied retroactively. The legislature specifically provided that the amendment applied only to an offense committed on or after September 1, 2009.

Chris Joshua Meadoux, the subject of a recent Court of Criminal Appeals opinion, was a juvenile capital offender sentenced to LWOP for a double murder that occurred in 2007. Unfortunately for him, his offense was committed during the 4 year window in which LWOP was the required punishment for a juvenile capital offender. He complained on appeal that his sentence violated the Eighth Amendment because the 2009 amendment reducing LWOP to life indicates that LWOP is a cruel and unusual punishment for juveniles. His specific arguments on appeal were:

1. Juveniles were less morally culpable (i.e. blameworthy) for their crimes than are adult offenders;
2. Life imprisonment without the possibility of parole did not serve as a measurable deterrent for juveniles; and
3. The Legislature’s recent amendment of the Texas Penal Code Section 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders signified that the evolving standard of decenecy, at least in Texas, forbade the categorical assessment of LWOP for juvenile capital offenders.

Appellant requested that his case be remanded back to the trial court for a new sentencing hearing in which life imprisonment would be the maximum penalty.

The 4th District Court of Appeals (San Antonio) held that the Eight Amendment did not bar LWOP in Appellant’s case, as his crimes were committed during the time in which LWOP was the required punishment. In its opinion of November 17, 2010, the CCA agreed, holding that:

(1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering the balancing of these four factors, we conclude that Meaduox has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

Judge Meyers penned a dissenting opinion and was joined by Judge Johnson. They would hold that because the Legislature subsequently determined that LWOP is inappropriate for juvenile offenders, the sentence in Appellant’s case is unreasonably harsh.

I won’t make a lot of friends with my opinion of this holding, because I think the court got it right. In fact, I think the Legislature got it wrong in 2009. I believe that LWOP should still be an available punishment for juvenile capital offenders, but as an option, with life as the other alternative. We should let the jury decide whether LWOP or life is appropriate in each case. In this case, Meadoux committed a double murder and then tried to burn the bodies in a house fire to destroy the evidence. He got what he deserved.

Fencing the Confrontation Clause

As the Court of Criminal Appeals aptly recognized, "the constitutional right of confrontation includes the right to cross-examine the witnesses and the opportunity to show that a witness is biased or that his testimony is exaggerated or unbelievable."  In the 1974 Supreme Court case Davis v. Alaska, the Court held that evidence that a witness with a juvenile record might be testifying because of a need to "curry favor" with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontation Clause.  However, rather than view this holding as one of inclusion, the CCA decided last week, in Irby v. State, that rather it was one of exclusion.  This recent holding by the CCA stands to significantly hamper the right to confrontation in Texas.

Regarding the right to confrontation of a witness with a prior juvenile record, the CCA held:

the confrontation clause may require the admission of such evidence if the cross-examination is reasonably calculated to expose a motive, bias, or interest for the witness to testify.  But the mere fact that a juvenile had been placed on probation or had some other vulnerable relationship with the State is not enough to establish bias or prejudice; the cross-examiner must show some causal connection between the witness’s vulnerable relationship and the witness’s testimony.

 Recognizing the potential implications of such a holding, Judge Holcomb dissented (joined by Judges Womack and Hervey), stating:

I believe that we cast a dark shadow on the constitutional right of confrontation by requiring a defendant to establish the kind of “logical relationship” the majority requires before allowing cross examination of a juvenile witness on his pending probationary record to show his possible bias or motive in testifying for the same prosecutorial authority which also supervises his probation. The majority, in my view, misapplies Davis v. Alaska, which clearly held that the constitutional right to question a juvenile witness regarding his pending probationary status trumps any State interest in protecting such juvenile offenders. Denying the defendant any opportunity to cross-examine a critical juvenile witness regarding his possible bias stemming from his probationary relationship with the State constitutes a denial of the right to effective cross-examination.

State Doesn't Follow the Rules - Juvenile Case Reversed and Remanded

Last month I wrote How Does a Juvenile Get Tried as an Adult in Texas, outlining the requirements under the Texas Family Code whereby a juvenile is transferred to district court to be tried as an adult.

The requirements to transfer a juvenile case to district court are specific and the State must follow them.  See what happens the State doesn't follow those requirements HERE.

How Does a Juvenile Get Tried as an Adult in Texas?

In Texas, juveniles (persons under 17) who commit criminal offenses are processed by the Juvenile Court of the appropriate jurisdiction under the Juvenile Justice Code . However, on petition of a prosecuting attorney, if a juvenile has committed certain offenses under the Penal Code, the Juvenile Court may waive its exclusive original jurisdiction and allow the child to be tried as an adult in criminal court. This area of law is governed by the Texas Family Code Section 54.02 and I always recommend that you always consult the code sections rather than relying on my simplified recitation below, but here it is.

Practically speaking, there are several steps in the process before a juvenile may be transferred to criminal court to be tried as an adult.

1. The offense that the child is alleged to have committed must be a Felony. If the child was 14 years old at the time of the alleged offense, the offense must have been no less than a 1st Degree Felony. If the child was at least 15 years old when the alleged offense was committed, any Felony will do. Children UNDER 14 years of age may not be transferred to criminal court until they reach the age of 18 (and if several other provisions are met).

2. The Juvenile Court must conduct a full investigation and a hearing, to determine whether probable cause exists to believe that the child committed the offense alleged. Probable Cause consists of sufficient facts and circumstances to warrant a prudent person to believe that the juvenile committed the offense. The court must also determine, based on the seriousness of the offense alleged or the background of the child, whether the welfare of the community requires criminal proceedings.


3. Prior to the hearing, the Juvenile Court must obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense. This study and any other written material to be considered by the Court in making its transfer decision, must be provided to the attorney for the child at least five days before the hearing. (If the Court decides to transfer the case to criminal court, this material will also be provided to the prosecuting attorney for the state--but it is inadmissible as evidence).

4. During the hearing, the Court can consider just about anything--hearsay statements, written assertions, oral testimony, police reports... anything that will help the Court in considering the following four factors:

• whether the alleged offense was against person or property (more likely to be transferred if the offense is against the person);
• the sophistication and maturity of the child;
• the record and previous history of the child; and
• whether the child can be rehabilitated and the public adequately protected if the Court does not transfer the case and rather uses only those procedures, services, and facilities currently available to juvenile offenders.

 5. If, after receiving all of the information stated above, the Juvenile Court decides to waive its jurisdiction, it must state (in the transfer order) specifically its reasons for the waiver and transfer.

6. The decision of the Juvenile Court to transfer a case to criminal court cannot be immediately appealed as it is a criminal matter. Under Article 44.47 of the Texas Code of Criminal Procedure, a challenge to the certification and transfer order can be made only in conjunction with the appeal of a conviction of or an order of deferred adjudication for the offense for which the child (now adult) was transferred to criminal court.

That is, in a nutshell, how a Juvenile may be tried as an Adult. Okay, maybe it wasn't such a nutshell, but in this area of law it is difficult to be succinct.

For more juvenile justice matters see also: The State Bar of Texas Citizen's Guide to the Texas Criminal Justice Process, HERE.

LWOP Upheld for Juvenile Capital Murder Case

The Fourth Court of Appeals (San Antonio), who, by the way, issues the most aesthetically pleasing opinions, just upheld a Cruel and Unusual Punishment challenge Texas' sentencing scheme (pre-Sept 1, 2009) that imposed a mandatory life without parole (LWOP) punishment on a juvenile capital murder offender.  Meadoux v. State.

Appellant (16 years old), who was questioned for over an hour at the police station, ultimately confessed to killing his 2 friends (accidentally, of course).  The police officers never advised Appellant of his Miranda rights, maintaining that he was could terminate the "interview" and leave anytime he wished.  Accordingly, Appellant challenged, at trial and on appeal, the admission of his incriminating statement, as well as the Texas sentencing scheme of mandatory LWOP.

After a lengthy (and intriguing) recitation of the facts of the case, the Court spent another 11 pages discussing what is well-established precedent.  "Viewing all the evidence in the light most favorable to the court's ruling" the Court affirmed the decision of the trial court that Appellant was not "in custody" and therefore, the officers were not required to read him his Miranda rights.  Furthermore, because Appellant was not "in custody" the trial court did not have to submit a question to the jury regarding whether the confession was "voluntary."

If you want a crash course on juvenile criminal procedure, including the admissibility of statements, whether an interrogation is "custodial" and whether Miranda warnings are required, check out the full text of the case here.  Justice Speedlin does an excellent job in her presentation of the law and application of the facts.  Really, in my view, it could have gone either way at the trial level, but once the trial judge has spoken, it would have been a stretch for the appellate court to deviate.

I see all of this as a side issue, because, for me (and possibly the CCA), the thrust of this case was the issue of the constitutionality of mandatory LWOP for juvenile capital murder offenders.  I hate that the Court gave such little attention to this issue (4 measly pages).  As the Court notes, the U.S. Supreme Court recently heard oral arguments on the question of whether LWOP for a non-homicide offense committed by a juvenile is "cruel and unusual." Sullivan and Graham.

I know what you are thinking... "the Supremes are only considering the constitutionality of LWOP for a non-homicide offense and they will not likely extend any opinion beyond the issue presented."  Right you are, but if (and that's a big IF) they hold that LWOP for a juvenile is unconstitutional as it applies to non-homicide offenses, we are only a small step (and a slight shift in public opinion or court ideological makeup) away from LWOP being unconstitutional for all juvenile cases.  If you'll remember, it wasn't too long ago that a state could execute a mentally retarded person.

This hardly stands to cause a big fuss in Texas, because, as you may know, Texas recently amended section 12.31(a) of the penal code which now requires a mandatory Life sentence for juvenile cases rather than LWOP.  But be on the lookout for U.S. Supreme Court opinions embracing this issue (Sullivan v. Florida and Graham v. Florida), for, while they are unlikely to affect current TX cases, they could bring on a firestorm of habeus petitions.