I have a juvenile who stated he was raped a few years ago. He gave a detailed description of the events. The defendant is now 18 years old. He was interviewed and gave a full confession. He currently lives in Florida and is trying to go into youth ministries. The juvenile is 14 now and was around 10 years old when the offense occurred. The defendant was 15. The adult does not seem to meet the definition of a child under the family code 51.02. Can I still prosecute him? My hands look tied but that doesn't seem right.

Look at 54.02(j)

I have looked at that and the literature would suggest that it only applies to capital murder and murder--Dawson's wonderful book--however I don't seem to get that interpretation

What I think Dawson is saying is that you can go back and certify a child who is now 18 or older who committed a capital murder or a plain vanilla murder when they were 10 to 13 when they committed the murder. When under "normal" circumstances the minimum age would have been 14, but you also have to prove why you didn't do the cert before they reached 18.

(J) clearly allows you to go back and certify for other felony offenses (if you can prove why you didn't do it earlier) but sticks with the "normal" age ranges.

Thanks very much. I really appreciate you help.

Stacy is the guru!

Nah ! I just have more time to read this forum and look at the law than you hard working prosecutors (can you hear the jealous tone in my post)!!

no.

I have a similar case. The perp is 18 and in TYC. The Deputy plans to question him next week. Now that he is 18, may we just Mirandize him and take a statement (if any) as you would from any adult, or does the fact that he was 15 when the offense occured matter?

That would be 18 year old, not 8 year old.

No.

Here are a couple of places to look: (1) Chris Hubner, Juveniles at 50-51 (published by TDCAA) (citing Police Interaction with Juveniles, Arrests, Confession, Search and Seizure at http://www.juvenilelaw.org/Articles.htm ); and (2)

https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=5253022042&m=960109571&r=879109571#879109571

For what it's worth, you might also look at this Alabama case construing the Texas Family Code.

State v. Keller, 822 So.2d 483, 487 (Ala.Crim.App.2000). It follows the Ramos decision that "�[T]he determining factor of whether the Family Code [addressing juvenile rights] or the Criminal Code of Procedure [addressing adult offenses and rights] governs the taking of a statement is the age of the individual at the time the statement is made.� Ramos v. State, 961 S.W.2d 637, 638 (Tex.App.1998)

[This message was edited by david curl on 06-05-06 at .]

You might also want to take glance at the TDCAA book on Confessions. Chapter 4 addresses juvenile confessions. Possibly it is too elementary though. If so, please advise. It is currently under revision.

There are a whole bunch of questions in this chain and no clear answers. Maybe I just don't understand the question(s) but for what it's worth here's my two cents:

RULE #1: How old when he did it? That will always control what law applies.

QUESTION ONE: involves a child victim and a juvenile defendant who was 15 at the time of the offense. Outcry was not until after the juvenile defendant turned 18. The juvenile court has lost jurisdiction to do anything on the case except certify as an adult under the provisions in 54.02(j). This involves the state showing by a preponderance of the evidence that for a reason beyond the control of the state it was not practicable to proceed before the 18th birthday because either the state had no probable cause prior to 18th birthday or the state didn't know where the defendant was. (see 54.02(j)(4)(A) and (B). He was 15 at the time of the offense - thus could be certified for any felony offense (if he was 14, it would have to be for a capital, 1st degree, or agg controlled subs felony (see 54.02(j)(2)(B) and (C)). [JAMES, YOU READ 54.02(j)(A)- about the 10 year old...KEEP READING AND CHECK OUT (B) AND (C).

QUESTION TWO: OK, now we have our 18 year old identified as the suspect in this offense - what should we do? How do we go about taking a confession from him?

Again, maybe I misunderstand the question - but my first advice to the officers would be to try to get him to come in voluntarily and "tell his side of the story" after having been advised that he is not under arrest, he doesn't have to talk to police, and he's free to go at any time. If he admits the offense, then you have a "voluntary" not-in-custody confession and the magistrate's warning would not be necessary.

My second choice would be to magistrate him and take the confession AS THOUGH HE WERE 15 YEARS OLD - BECAUSE THAT'S HOW OLD HE WAS AT THE TIME OF THE OFFENSE. I would choose an audio recorded confession as being the easiest to accomplish.

And if the defendant is in another state, read the section regarding out-of-state interrogation in Dawson's book starting on p 331. Art. 38.22 of the CCP allows rules for the admissability of out-of-state confessions for adults, that don't apply to juveniles. (see the discussion on p 333).

I am aware my answer is a little different from what Chris Hubner and Sharon Pruitt say on p 51 of the TDCAA book. They say that if the person being questioned is 18 or older, Art. 38.22 applies.

All this reminds me of the old "Hal" (Gaither) and "Bob" (Dawson) Show. How safe do you feel? Do you want a belt AND suspenders? If the victim is credible enough - maybe you won't need the confession.

I have a 20 year old guy who is alleged to have committed an Agg Sex Asslt when he was 15. My question is - do I have to summon him to court and have the court certify him as an adult before he can be arrested? Or can he be arrested and placed in county jail until the hearing? I know our juvenile detention facility will not take him. My officer posed the question and I can not find the answer. Please help!!

He can be taken into custody before the proceedings. See Fam. Code Sec. 54.02(o)-(r).

Yes. You can arrest him and hold him in the county jail (he can't be kept in a juvenile lockup because he's over 18 see 51.02(14) and 51.12(f)). Here's what I think you should do:
(1) File your petition and motion to waive jurisdiction
(2) Based on the pending motion, ask for a directive to apprehend and have the judge sign an order to hold him in the adult lockup at the same time he signs the directive.

You may have to talk to your judge and your sherriff's officer who is in charge of the jail ahead of time to make sure everyone understands what is happening and is on the same page.

One more thing, once he's locked up, the judge must set a bond (unlike juveniles). see 54.02(r)

Harris County DA's office has a set of forms for all this and if you call and ask, I'll bet they would email them to you and you can adapt them to your needs.
(I would offer to send it, but I retired and I'm not there anymore.)