Charged with murder at 16, arrested at 18. Can Texas prosecute him as an adult?

Two years after police found Melchor Gutierrez dead in his truck with multiple gunshot wounds to the head in October 2020, the Harris County Sheriff’s Office issued a murder warrant for a teenager – referred to in court documents as “JJT” – whom authorities suspected of to have played a role in Gutierrez’s death when he robbed him at the age of 16 during an alleged drug deal.

But JJT wasn’t arrested until well after his 18th birthday, which meant the juvenile court only had the option of transferring his case to adult criminal court or dismissing it.

Now, after Tuesday’s oral argument before the Texas Supreme Court, the question is not whether JJT is guilty, but whether Harris County could have charged him sooner and avoided moving his case to a location where he would have fewer alternatives would.

And if the high court sides with the lower appeals court, JJT’s case could be dismissed entirely.

The Texas Family Code generally permits a transfer to adult criminal district court in two cases, as is the case in this case: either it was not possible for the state to hear the case before one for a reason beyond the control of the state to prosecute in juvenile court, or the state must prove that it did not have probable cause to proceed with the case after its own due diligence prior to the juvenile’s 18th birthday – and new evidence has been discovered since the minor turned 18 .

The purpose there, says JJT attorney Jerry Acosta, is to limit prosecutors’ ability to prosecute adults for something they did as children.

“Charging someone after they turn 18 is the exception,” Acosta said. “The state has to follow through and prove — it’s their burden of proof — that they couldn’t proceed for a reason beyond their control.”

The job of juvenile judges is to consider a child’s maturity, his or her history in the juvenile system, and the possibility of rehabilitation in criminal cases. A minor charged in juvenile court may also have the option to serve a portion of their sentence in the juvenile justice system with the possibility of probation.

After Gutierrez’s death, a Harris County sheriff’s deputy found a text conversation in which Gutierrez and then-17-year-old Alfonso Hernandez Tovar allegedly set up an Oct. 4, 2020, drug deal for an ounce of weed, according to court records.

JJT’s brother told authorities that Tovar and JJT were best friends and spent a lot of time together. Fingerprint evidence ultimately linked Tovar to the crime scene, but not JJT

Police arrested Tovar, and in November 2020 he told authorities that he, JJT and another man were at the scene – but he said it was JJT who shot Gutierrez and ran off with the stolen weed, not Tovar .

However, the DA’s office noted that prosecutors did not view this “self-serving” statement as a credible admission of guilt or as grounds for issuing an arrest warrant.

“A purely guilt-shifting statement – ​​particularly here where mere presence does not constitute a crime – does not serve as a basis for probable cause,” said Melissa Stryker, who argued on behalf of the prosecution.

But in late 2021, about a month before JJT’s 18th birthday, court documents say Tovar contacted the sheriff’s office with even more information about the day of the murder – that he and JJT had hatched a plan on the way back from Texas to rob Gutierrez city that day. Tovar also gave officers his own phone passcode — the sheriff’s office’s High-Tech Crime Unit had attempted to unlock Tovar’s phone using its GrayKey technology, a process that could take months or years.

It was only after that meeting – and approximately six months after JJT’s 18th birthday – that Deputy David Crain obtained a search warrant for JJT’s phone records. Geographic data allegedly showed that JJT and Tovar were together before, during and after the murder. This led to JJT’s arrest on probable cause in late 2022.

After initially denying any involvement, JJT eventually told authorities that he was at the scene and grabbed the weed, but that Tovar fired the fatal shot.

It was enough to charge JJT with murder: under Texas party law, accomplices to a crime can be charged with the same crime as the alleged perpetrator.

The DA’s office asked the juvenile court to relinquish its control of the case and transfer JJT to criminal district court to be prosecuted as an adult in 2023.

In the first year of the investigation, there were no fingerprints, DNA, firearms, eyewitnesses or video evidence that would clearly implicate JJT in the crime – so while it was possible, it was neither sensible nor practical for prosecutors to file a case against JJT before he turned 18 was, prosecutors argued. Crain had also testified that he had a high caseload at the time and generally tried to avoid talking to minors until the sheriff’s office had enough information to arrest them.

“I think the state has an absolute obligation to pursue matters in juvenile court when possible,” Stryker said. “But if they cannot be reasonably enforced in juvenile court, then a transfer is appropriate and these laws come into play.”

The transfer also increases the importance of the case for the now 20-year-old. If JJT is tried as an adult and found guilty of murder, the only punishment the jury can consider is life in prison with the possibility of parole after 40 years because the alleged crime was committed when he was under 18 years old .

That’s less severe than the punishment for a suspected adult offender, who could get either life in prison without parole or the death penalty, but it’s not much better, said Steven Halpert of the Harris County Public Defender’s Office’s juvenile division.

“It’s essentially a death sentence,” Halpert said. “We do a little bow and say, ‘You can get out after 40 years.’ But no one survives that.”

The Houston First Circuit Court of Appeals reversed the juvenile court’s transfer decision and dismissed the case. It stated that Crain had probable cause to file a case against JJT and that he should have done so using Tovar’s initial statements as well as video evidence showing three men leaving the scene.

JJT’s attorney, Jerry Michael Acosta, asked the Texas Supreme Court to uphold that decision.

“The courts have held that high caseloads and investigative preferences are not reasons beyond the state’s control,” Acosta said.

The justices questioned whether a ruling in the state’s favor would allow prosecutors to simply wait until children turn 18 to file charges against them so as not to have to go through the hassle of bringing a case out of juvenile court to transfer the adult court. But they also questioned whether a ruling in favor of defendants like JJT would encourage prosecutors to file charges as quickly as possible, which Stryker said could harm defendants and law enforcement.

“Fundamentally, bringing juvenile offenders into the criminal justice system before the state has the necessary evidence to support the crimes they are accused of is just as dangerous and harmful as letting the state wait too long to process juvenile applications,” Stryker wrote in a statement to KERA news. “The laws enacted by the Texas Legislature allow juvenile courts to strike the right balance between these two extremes, which is why the state has requested review by the Texas Supreme Court in this case.”

Halpert said he doesn’t think prosecutors are waiting for offenders to turn 18 to take the easy route.

But he also doesn’t expect the Supreme Court to make a decision setting definitive policy in any of these hypotheticals.

“We rarely get that in the adult or juvenile justice system,” he said.

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