I'm about to try an Indecency with a Child where the victim was 5 years old. The indictment merely alleges a victim under 17 years old. Since the victim is under 14 the jury should not be able to give probation but how do I invoke that?

I'm hoping I can just have a special issue in the jury charge. Does anyone have sample language for that?

Thanks

Presumably the defendant will agree that punishment should not include probation. However, if defendant demands some decision by the jury, then cover the issue during voire dire and, then, include in the punishment charge an instruction that probation is not available if the child is under the age of 14.

But, given that there is not likely to be any factual dispute over the child's age, there isn't any need for a decision by the jury. Sort of like how the defendant doesn't even apply for probation if the offense calls for a minimum sentence of more than 10 years or if the defendant has a prior felony conviction.

The defense is not going to insist on anything in particular. I just wanted to make sure everything is covered "on paper." I'm going to get them on the record stating that the age is the reason they are not filing a motion for community supervision (he would otherwise be eligible) and I guess that is sufficient since the evidence will clearly support that she is under 14?

So why not allege <14 in the first place?

I tried one of these a couple of weeks ago. We specifically alleged a child under 6 in the indictment so that there was not an issue in that regard. Our child was only 2 though, so the age thing wasn't really even close.

If the age isn't really in question, I would suggest alleging it in your indictment. If it is, I would allege in the alternative -- under 6 or under 14 -- and let the jury decide during guilt-innocence.

Thanks for the suggestions. It should have been alleged under 14 but I think it was either oversight or an old habit dying hard, and I didn't catch it in time to reindict.

We actually tried two cases, one where he was eligible for prbation (exposure) and one where he wasn't (contact.) The attorney only filed a motion for CS on the one and went on the record his reason for not filing it on the other, so I think everything is covered.

He was convicted of both charges and got 10 yrs. TDCJ on the contact and 10 Yrs. probation on the exposure. Kinda goofy but the judge stacked them so he's got a long road ahead of him.

Thanks for the help.