Children Charged with Homicide

My Kids [These are fiction but derived from scenarios in cases I have defended.]

Story 1

Sherri, a 15-year-old high school student, drove a car filled with her teammates to an awards ceremony. Her soccer team had won a championship.  The car belonged to the parents of a 16-year-old in the car.  The parents had watched without saying anything as six teenagers in a celebratory mood piled into the car with their 16-year-old taking the driver’s seat. When the girls got out of sight from the house, however, the 16-year-old let Sherri drive.

The girls were laughing, texting, listening to music, and kidding around. Sherri ran a stop sign going about 50 in a 35-mph zone and T-boned a sedan driven by an elderly woman. The elderly woman was injured but survived and recovered fully. All of the girls in the car driven by Sherri were taken to a hospital. One of them died. She had been in the front seat and had undone her seatbelt to turn around and talk to a teammate in the back.  Sherri and that girl were co-captains of the soccer team and best friends forever. The girl was also an honors student. Her mother was the court coordinator for a local district judge. Sherri was a star at the high school and had come from a low-income family.

When Sherri was taken to the hospital in the ambulance, the two law enforcement officers that responded to the call on the accident followed behind.  Once the attending medical personnel determined she had no serious injuries, they allowed the officers to go into the room where Sherri was. The officers questioned Sherri, telling her that she wasn’t under arrest, but that she might not be able to go home with her parents when they got there if she didn’t answer some questions first. When her parents showed up at the hospital, the officers arrested Sherri.

Claiming he was under a lot of political pressure, the district attorney said he couldn’t handle the matter as an ordinary delinquency case. He decided to charge the case as manslaughter, but wouldn’t handle it as a determinate sentence case. He was afraid a jury might return a verdict of guilt on the lesser included offense of criminally negligent homicide. Doing so would kick the disposition back into the ordinary delinquency category. See Tex. Fam. Code Ann. §§ 53.045 & 54.04(d)(2). He petitioned for discretionary transfer of the case to criminal district court to try Sherri as an adult pursuant to § 54.02 of the Texas Family Code. She was old enough. The transfer would solve the prosecutor’s problem of ending up with a progressive sanctions disposition under Texas Family Code § 59.003.

The prosecutor gathered the materials necessary for his presentation, including the complete diagnostic study, social evaluation, and full investigation required by Texas Family Code § 54.02(d). He got an expert to opine on the four factors set out in Texas Family Code § 54.02(f). Sherri’s lawyer got an expert to dispute the opinions of the State’s expert, including, among other things, that (1) Sherri had the appropriate maturity and sophistication to try her as an adult, and (2) that the resources available in the juvenile justice system were not adequate to protect the public and rehabilitate. Sherri’s statements to the police and written statements from the other girls in the car came into evidence during the hearing. The judged reasoned that guilt/innocence was not the issue in the hearing on discretionary transfer. Discretionary transfer of jurisdiction was. Neither the Fifth Amendment protection against coercive interrogation nor the Sixth Amendment right to confrontation of witnesses applied. See e.g., B. L. C. v. State, 543 S.W.2d 151 (Tex. Civ. App.—Houston [14th Dist.]1976, writ ref’d n.r.e.) and Matter of P. A. C., 562 S.W.2d 913 (Tex. Civ. App.—Amarillo 1978, no writ).

The judge made the required findings of probable cause that Sherri committed manslaughter as alleged and that adult criminal proceedings were necessary to protect the community due to either the seriousness of the offense or Sherri’s background as required by Texas Family Code § 54.02(a)(3).  The judge kicked the case to the criminal district court pursuant to Texas Family Code § 54.02(h). Sherri’s family made bond for her as allowed under Texas Family Code § 54.02(h-1) . The case proceeded in district court while appeal of discretionary transfer was pending because said appeals do not stay the proceedings under Texas Family Code § 56.01 (g-1). A year later, the appellate court delivered an unfavorable ruling on the challenge to discretionary transfer. By then, the case had already been tried in district court.

At the district court, in a pretrial hearing on a Motion to Suppress, the judge ruled that the interrogation of Sherri at the hospital was not custodial. He ruled that there had been no violation of the statutes upon which Sherri’s lawyer relied in the Motion to Suppress, Texas Family Code §§ 51.095, 52.01, and 52.02. Her statements could be admitted before the jury. Settlement negotiations didn’t succeed, and the case went to trial. A Jury rejected the manslaughter charge, convicted on the lesser of criminally negligent homicide, and gave Sherri the maximum sentence of two years in a state jail facility. Sherri Appealed. The trial judge let her stay out on bond during the appeal. Sherri finished high school while the appeals were pending. When the appellate process played out against her, Sherri surrendered to begin her sentence. After 75 days, she applied for Shock Probation under Texas Code of Criminal Procedure Article 42A.558. The trial judge granted the application.

Story 2

Wendell was a 13-year-old chess whiz. He was also a victim of bullying at school, particularly harassed by a fellow named Max that came from a wealthy family and was probably the best football player ever to attend the small-town high school. Wendell had a crush on the girl that Max considered his girlfriend. She was a cheerleader, but like Wendell, she came from a low-income family. Max found out that the girl and Wendell had been talking after school. He caught Wendell after school and beat him silly. When asked who beat him up, Wendell wouldn’t snitch.  Then, Max slapped the girl around and neither the school nor the cops did anything about it. Wendell got himself a shotgun and lay in wait for Max. When Wendell caught Max in a secluded spot, he blew his head off. 

Since Wendell was only 13, he couldn’t be certified as an adult under Texas Family Code § 54.02(a)(2)(A). The district attorney sought and gained approval from a grand jury for prosecution under the determinate sentence statute, Texas Family Code § 53.045. A juvenile determinate sentence case could be tried in a county court at law, a district court, a criminal district court, or family district court. See Tex. Fam. Code Ann. §§ 51.04 (b) and (c). In Wendell’s small hometown, it would be the district court.

Wendell was entitled to a trial by a jury both at the guilt/innocence stage and at the disposition, should the State convince a jury beyond a reasonable doubt that Wendell had engaged in delinquent conduct or conduct indicating a need for supervision and that the allegation against him was true. See Tex. Fam. Code. Ann. §§ 54.03(f) and (h). A jury [or judge should he prefer] could sentence him up to 40 years. See Tex. Fam. Code Ann. § 54.04(d)(3)(A)(ii). Eventually, he agreed to a plea bargain for a determinate sentence of 20 years and the trial judge accepted the plea pursuant to Texas Family Code  § 54.03(j).

Unless a sentence is probated (See Tex. Fam. Code 54.04(q)), determinate sentencing requires a minimum stay in a secure facility operated or approved by the Texas Juvenile Justice Department (hereinafter TJJD). See Tex Hum. Res. Code § 245.051(c). After that, TJJD may release the juvenile into an accepted setting of supervision. Wendell served his 3-year minimum sentence at TJJD. See Tex. Hum. Res. Code §245.051(c)(2). He participated in rehabilitation programs, started a chess club, and otherwise behaved impeccably. He was never referred to the juvenile court for a review under Texas Human Resources Code § 244.014. An unfavorable ruling from the court in such a hearing would have sent Wendell to prison to complete his sentence. See Tex. Fam. Code. §54.11(i)(2). When Wendell turned 18, the TJJD did an assessment according to Texas Human Resources Code § 244.015. Then, the Department referred Wendell to the juvenile court for a hearing under Texas Human Resources Code § 245.051(d) and Texas Family Code § 54.11.  Having the options of either sending Wendell back to TJJD with approval for release or without such approval, the judge chose the latter, saying that the severity of the offense overrode the positive reports of Wendell’s behavior while in the TJJD facility. See Tex. Fam. Code §54.11(j)(2). On his 19th birthday, Wendell was transferred to the custody of the Texas Department of Criminal Justice to serve the remainder of his sentence on parole as provided by Texas Government Code § 508.156 and Texas Human Resources Code § 245.151(e).

Story 3

Warren came from a very affluent family. Big fish in a small pond. Very powerful locally. He had no criminal history at age 16. He had decent grades in high school and was generally well-liked by students and teachers. He was a decent football player.

But Warren chafed at the image of unearned privilege that came with his family’s affluence. He aspired to be a Hip Hop rapper. He started drinking alcohol and smoking marijuana. He took up with some other wannabees. One of them fancied himself to be some sort of gangster. He had started accumulating an increasingly violent juvenile criminal history.

Warren got in a car with that kid. The kid told Warren that they were going to go smoke some weed. They stopped at a smoke shop to get some smoking paraphernalia. While in the store the other kid tried to shoplift some stuff. When the shop-owner saw him, he yelled and pulled out his cell phone. The kid pulled a gun out of from a jacket pocket and shot the shop-owner dead. The two boys ran out of the shop to the car and sped away. Within a few days, they had left a sufficient trail of school yard chatter and social media allusions to lead law enforcement to them.  Both were arrested.

The district attorney came to Warren’s attorney and made an offer. If Warren testified against the shooter, who had just turned 17 when the shooting occurred, the State would not seek a determinate sentence or discretionary transfer. They would let him plead true to the allegation of murder in juvenile court without grand jury approval of a determinate sentence request. The agreed disposition, subject to the Court’s approval, would be to serve time in a secure facility of the Texas Juvenile Justice Department for a period of time to be determined by the Department. See Tex. Fam. Code § 54.04013; Tex. Hum. Res. Code §§ 243.002 & 245.101.  By using a copy of a TJJD form CCF-040, Warren’s attorney determined that Warren would probably be assessed for a minimum of 24 months in custody. The alternative would be to take his chances of either a determinate sentence of up to 40 years, or certification as an adult, a capital murder conviction, and life with possibility of parole. Warren accepted the deal. The juvenile court judge indicated approval of the arrangement and, by agreement of all parties, stayed the adjudication and disposition proceedings until after Warren fulfilled his obligation as a witness against the adult defendant.

Children Charged with Homicide – Part Two
Selected Cites with Scant Commentary

This outline maps some places of interest that one may want to visit when touring the world of Texas Criminal Jurisprudence in juvenile homicide cases. It is not detailed topography.

I. Elements Common to Juvenile Homicide Cases

A. Pretrial Detention – Unless jurisdiction over the Child has been relinquished by the juvenile court under Tex. Fam. Code  §54.02, the detention provisions under Tex. Fam. Code §§51.12 & 54.01 govern:

      1. Ordinary Delinquency Proceedings,
      2. Determinate Sentence,
      3. Discretionary Transfer; unless and until transfer is ordered, at which time the child gets treated like a grownup. Tex. Fam. Code Ann. §54.02(h-1)

B. Interrogation

      1. Tex. Fam. Code
        1. §51.095 Admissibility of a Statement of a Child [This is the foundational statute by which custodial interrogation of a juvenile should be scrutinized.]
        2. §§52.02 and 52.025 [regarding law enforcement handling of detained juveniles, generally.]
      2. Tex. Code Crim. Proc. Art. 38.22 & 38.23
      3. United States and Texas Constitutions

C. Procedure at the Time of Arrest – For scrutinizing and litigating propriety of detention, arrest, and interrogation of a child, one should familiarize the self with §§51.09, 51.095, 52.01,52.02, 52.025, and 52.04 of the Tex. Fam. Code. These statutes and the case law interpreting them address the way law enforcement should conduct detention, arrest, and interrogation, where they should be doing it, what efforts should be made to involve parents, and what the role of a magistrate should be.

D. Constitutional Protection against illegally obtained evidence. Tex. Fam. Code §54.03(d) & (e)

E. Burden of Proof for State at Trial Beyond a Reasonable Doubt. Tex. Fam. Code §54.03(f)

F. Procedural Rules and Rules of Evidence. Tex. Fam. Code Ann. § 51.17 [the general rule unless and until discretionary transfer occurs]. Generally, the Rules of Civil Procedure apply, but this statute states exceptions. The rules of criminal evidence and criminal discovery apply. The burden of proof regarding guilt is beyond a reasonable doubt. The statutes pertaining to determinate sentence proceedings incorporate other rules from the Texas Code of Criminal Procedure. If a court waives jurisdiction and exercises discretionary transfer of a case, procedural and evidentiary rules are generally those from the Texas Code of Criminal Procedure and the Texas Rules of Evidence. An important exception is that “The admissibility of a statement made by a juvenile is governed by section 51.095 of the Texas Family Code.” Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.– San Antonio 2009), aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010).

Note that federal and state constitutional rights traditionally afforded adults in criminal cases are generally considered also available to juveniles. “Even though a juvenile does not have a right to a jury under the federal constitution and may not have such a right under the state constitution, the legislature has given a right to jury trials to juveniles; because Texas has chosen to grant that right, it must also act in accordance with due process.” In re C.H., 412 S.W.3d 67, 75 (Tex. App.—Fort Worth 2013, pet. denied).

II.Three Options in Juvenile Homicide Case

A. Proceeding With Petition in Juvenile Court

      1. Juvenile Court Jurisdiction Generally- Tex. Fam. Code §51.04

The court of juvenile justice jurisdiction is designated by a Juvenile Board. It may be a District Court, County Court at Law, Constitutional County Court, Domestic Relations Court [Family], or Statutory Juvenile Court. Tex. Fam. Code Ann §51.04(b)

      1. Pleadings – Tex. Fam. Code § 53.04
      2. Jury in Juvenile Court ordinary Delinquency Proceeding – Tex. Fam. Code §54.03(c) and Tex. Code Crim. Proc. Art. 33.01; For felonies 6 if county court, 12 if district court
      3. Jury Verdict on Guilt/Innocence Regarding guilt or innocence, the finding initially is whether the child did engage in delinquent conduct or conduct indicating a need for            supervision. If the verdict return reads, “We the jury find that the child,_________ did not engage in delinquent conduct or conduct indicating a need for supervision”, then the jury has done its work and the judge must dismiss the case with prejudice. Tex. Fam. Code §54.03(g)

        If the verdict signed read’s “We the jury find that the child,_________ did engage in delinquent conduct or conduct indicating a need for supervision”, then the jury should enter a verdict of “True” or “Not True” on each offense presented to the jury. Tex. Fam. Code §54.03(h)

        If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision and the jury has stated which of the allegations in the petition were found to be established by the evidence, the court sets a date and time for the disposition hearing. Tex. Fam. Code §54.03 (h)

      4. Disposition and Punishment If Verdict of True on Offense(s).
        1. In ordinary delinquency proceeding, on for which the prosecutor has not submitted to a grand jury for approval of a determinate sentencing proceeding, the Judge does the disposition hearing. Tex. Fam. Code §54.04(a)
        2. Look at Progressive Sanctions statutes Sanction Level Assignment Model, Tex. Fam. Code 59.003(a)(3) [state jail felony] through (a)(7) [capital]
        3. Commitment to TJJD, See § 54.04013, also 29 Tex. Prac., Juvenile Law and Practice § 22:3 (3d ed.)
        4. Minimum Time TJJD, Establishment of Minimum Length of Stay, Tex. Hum. Res. Code § 243.002, Check out sample TJJD Minimum Stay Worksheet CCF-040
      5. Right to Appeal- It is generally governed as a civil case. There is a list of specific decisions that may be appealed. Tex. Fam. Code § 56.01

B. Determinate Sentence

      1. Laundry List of Eligible Offenses at Tex. Fam. Code Ann. § 53.045(b)
      2. Adjudication Proceeding with a Jury
        1. Court of Jurisdiction –county court at law, district court, criminal Tex. Fam. Code 51.04(b)
        2. Jury size 12. Tex. Fam. Code §54.03(c),Same number of peremptory strikes as afforded in district court under Tex. Code Crim. Proc. Art. 35.15(b).
        3. Verdict – Initially, the question is whether or not there is delinquent behavior in need of supervision, same as in ordinary delinquency proceeding. If any of the findings of true are on offense approved by the grand jury for determinate sentencing, the disposition proceeding is to the court or the jury. If the jury finds delinquent behavior but only on an offense not approved by the grand jury, the disposition statute says that the court proceeds without the jury to a disposition hearing as would occur in an ordinary delinquency proceeding. Tex. Code Ann.§54.04(a)
      3. Disposition – The child has a right to jury if notice given before voir dire. The child may change his [her] mind later if there is finding of delinquent conduct. Permission from State must be gotten. Tex Fam. Code §54.04(a). However, as stated above, there is no right to jury on disposition if no finding on covered offense in multi-count petition.
      4. Range of punishment for Homicide case Capital Murder under Tex. Penal Code §19.02 and, 1st degree felony murder under Tex. Penal Code §19.03 = up to 40 years 2nd degree felony murder under Tex. Penal Code §19.02(d) and Manslaughter under Tex. Penal Code Ann. §19.04 = up to 20 years Tex. Fam. Code 54.04(d)(3)
      5. Probation if the sentence is 10 years or less. Tex. Code §54.04(q) suspension of sentence, §54.05 modification or revocation of probation.
      6. Right to Appeal
        1. Respondent Appeal in determinate case is the same as an ordinary delinquency case. Tex. Fam. Code §56.01 (c)(1)(C)
        2. The State’s right to appeal is covered by Tex. Fam. Code §56.03(b), same as Tex. Code Crim. Proc. Art. 44.01

C. Discretionary Transfer to District Court

Waiver of Jurisdiction and Discretionary Transfer to Criminal Court Tex. Fam. Code §54.02

      1. Criteria for eligibility:
        There must be a Felony allegation Tex. Fam, Code Ann. §54.02(a)(1)
        The Juvenile’s minimum age is 14 if the alleged offense is capital or 1st degree;
        15 if the alleged offense is for 2d, 3rd, or state jail felony, Tex. Fam, Code Ann. §54.02(a)(2) A & B
        There must be a full investigation and a hearing. To waive jurisdiction and transfer the case the juvenile judge must find:

        1. “there is probable cause to believe that the child before the court the offense alleged” and
        2. “that because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal proceedings. Tex. Fam, Code §54.02(a)(3)
      2. Procedure of discretionary transfer hearing for a juvenile under 17 at time of the hearing is covered by Tex. Fam. Code §§54.02 (b) – (h).


  1. No Jury for Discretionary Transfer Hearing, Tex. Fam. Code § 54.02 (c)
  2. The judge will order what is described as “a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” Tex. Fam. Code § 54.02(d)
  3. The list of material that the judge will review and the issues the judge will consider for making a decision are explained in Tex. Fam. Code §54.02(e) & (f).
  4. The judge must retain or transfer jurisdiction on all charges included from the petition based on a particular criminal episode. The statute uses the word “transaction”. There is an exception that seems to refer to a situation where a transaction has already been ruled on and someone’s death later provides the missing element for a homicide charge. Tex. Fam. Code § 54.02 (g) & (g-1). However, a case jiggles the apple cart. It states that what the judge transfers is not necessarily the offenses identified in the petition, but rather the conduct encompassed. Livar v. State, 929 S.W.2d 573 (Tex. App.—Fort Worth 1996, pet. ref’d). There is also Tatum v. State, 534 S.W.2d 678, 680 (Tex. Crim. App. 1976), stating the juvenile court’s transfer order needn’t apprise appellant of the specific crimes for which he might be charged in criminal court. If the “transaction” is a complicated one, it might be good practice to get the State to specify the scope of conduct in the “transaction” and the judge likewise as to what he or she transfers.
  5. The judge should deliver specific written reasoning for a decision to waive jurisdiction and transfer a case.

Tex. Fam. Code § 54.02(h), but this law has been heinously watered down. Ex parte Thomas, 623 S.W.3d 370, 372 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021); overruling Moon v. State, 451 S.W.3d 28, 31 (Tex. Crim. App. 2014).

  1. Discretionary Transfer Punishment Ranges
    1. Capital – Life with parole possibility after 40 years. Tex. Pen. Code § 12.31
    2. Murder – 5 to 99 with possibility of parole Tex. Penal Code §12.32
    3. Manslaughter – 2 to 20 Tex. Penal Code §12.32
    4. Crim Neg homicide – 6 months to 2 years State Jail Facility Tex. Penal Code §12.35

There are lawyers versed and experienced in juvenile justice law and lawyers versed and experienced in criminal defense of homicide cases.  When considering the representation of a child charged with homicide, those lawyers fitting in one category should seek the guidance of a lawyer fitting in the other.

Abner Burnett
Abner Burnett
Abner Burnett graduated from South Texas College of Law in 1987 and began his practice of law in Odessa, Texas. He closed his office in 2002 and moved to Mexico. After a couple of years, he returned to Texas and began practicing law again full time, hiring on to The Texas Civil Rights Project. In 2008, he moved to Texas RioGrande Legal Aid as a public defender. He continues to serve in the same capacity for that organization. He can be contacted at 956.393.6206 or by email at .

Abner Burnett graduated from South Texas College of Law in 1987 and began his practice of law in Odessa, Texas. He closed his office in 2002 and moved to Mexico. After a couple of years, he returned to Texas and began practicing law again full time, hiring on to The Texas Civil Rights Project. In 2008, he moved to Texas RioGrande Legal Aid as a public defender. He continues to serve in the same capacity for that organization. He can be contacted at 956.393.6206 or by email at .

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