I have a case in which we've alleged Agg Sex against a disabled person and indencency with a child by exposure (same vic - MR sister). I want to file the Agg Sex as a determinate sentence case but it's going to be a very tough case to make for a variety of reasons. Since I cannot pursue the Indecency as a determinate sentence case, is my only option to proceed under two petitions (despite the fact that the offenses occurred in the same transaction)? Any help would be appreciated. BTW, we have a solid indecency by exposure case and could send the kid to TYC but he's close to 18 and that's not enough...

I think you can pursue Indecency as a determinate case. Check out 53.045(a)(12). Also be sure and read 53.045(e). I check that one every time I consider doing any sexual offense as determinate.

As to your other question, there is case law that allows both determinate and non-determinate allegations on the same petition. The GJ approves it - but since the law is that they can only approve specified offenses - the non-determinate allegation is on there as a regular delinquency charge.

It would be just like if the jury heard the case and then found the defendant guilty of a lesser included and the lesser included was not on the list of determinate-allowed offenses.

Depending on what they found the juvenile guilty of - then you would proceed accordingly on punishment. If they found on the determinate offense, then disposition would be as in a determinate case. If they found on the non-determinate offense, then disposition would be as in a regular delinquency.

Thank you for the reply, Kris. My understanding of 53.045(a)(12) is that you can only pursue indecency by contact, 21.11(a)(1), as a determinate sentence case. 21.11(a)(2) is not mentioned in that statute. Let me know if I am missing something.

As to your determinate/indeterminate scenario, what about the fact that in certain instances a different sized jury would hear these cases if proceeded upon individually? Our juvenile court happens to be in a county court and thus our indeterminate felony trials (in this case our Indecency by exposure case) are heard by a 6 person jury. I would assume that under your lesser-included analogy that we would simply proceed with the 12 person jury?

Thanks for any additional assistance.

Chris

Since a 12 person jury is required by a GJ approved determinate petition - then you would have to have the 12 person jury. If they found on the non-determinate charge (or on a lesser included offense) that was not a determinate-eligible offense - then you are going to proceed on disposition to the judge anyway. Only if they find guilt on the GJ approved determinate charge is there an option to go to the jury for punishment. I don't think it matters which size jury could have heard the case had it not been determinate. The GJ approval controls how it proceeds.

I agree with you about the different Indecency charges - that's why I double-check those every single time, too.