COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EX PARTE

JORGE JUAREZ,

Appellant.

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No. 08-23-00159-CR

Appeal from the

346th Judicial District Court

of El Paso County, Texas

(TC# 20220D02497)

MEMORANDUM OPINION

Jorge Juarez appeals the trial court’s order denying his application for writ of habeas

corpus.

1

Juarez asserted that Texas statutes, which define age 17 as an age affecting criminal

responsibility, are unconstitutional on their face and as applied to him under the Eighth

Amendment of the U.S. Constitution. See Tex. Fam. Code Ann. § 51.02(2); Tex. Penal Code Ann.

§ 8.07(b); U.S. Const. amend. VIII. Finding no error, we affirm.

BACKGROUND

On April 25, 2022, an arrest warrant for capital murder was issued for Juarez based on a

sworn complaint of an El Paso police officer. Juarez was arrested the next day and confined in the

1 See Tex. Code Crim. Proc. Ann. art. 11.08.
2

El Paso County Jail under the custody of the Sheriff of El Paso County.2 On June 30, 2022, a

grand jury indicted Juarez for a single count of capital murder and the case was assigned to the

346th District Court of El Paso County. The charging instrument alleged that, on or about April

22, 2022, Juarez intentionally caused the death of Kevin Gonzalez by stabbing him with a knife,

and he did so while in the course of committing or attempting to commit robbery. In a second

paragraph, the instrument further alleged that a deadly weapon—namely, a knife—was used or

exhibited during the commission of the charged offense, and Juarez used and exhibited the deadly

weapon. Born in January of 2005, Juarez was 17 years old at the time of the alleged offense, as

well as at the time of his arrest and confinement.

On March 16, 2023, Juarez filed a pretrial application for writ of habeas corpus alleging he

was illegally restrained in his liberty by the State, by the 346th District Court, and by the El Paso

County Sheriff’s Office. See Tex. Code Crim. Proc. Ann. arts. 11.05 (addressing by whom a writ

of habeas corpus may be issued), 11.14 (providing the application requirements). He claimed the

State and the 346th District Court had unlawfully restrained his liberty by charging him with an

offense under a felony indictment. He asserted he was only 17 years old at the time of the alleged

offense, yet the State of Texas—by its enactment and reliance on Tex. Fam. Code Ann. § 51.02(2)

and Tex. Penal Code Ann. § 8.07(b)—had defined him as an adult for criminal prosecution. He

urged that, in a series of cases, the U.S. Supreme Court “ha[d] drawn a line between 17- and 18-

year-olds for [Eighth] Amendment claims: [such that] [o]nly at 18 years of age can a defendant be

prosecuted fully as an adult.” He maintained by his habeas application that the cited Texas statutes

were unconstitutional on their face and as applied to him.

2 On the warrant of arrest, a criminal magistrate judge set Juarez’s original bond at $1,500,000. However, on May 2,

2022, Juarez’s bond was reduced to $500,000.
3

On May 22, 2023, the trial court held an evidentiary hearing. Juarez presented testimony

from two expert witnesses. Between his two witnesses, Juarez asked the State to confirm it had

stipulated that he was 17 years old on the date alleged by the charging instrument, which it did.

Juarez’s first witness, April Thomas, Ph.D., testified she was employed as an assistant professor

of legal psychology at the University of Texas at El Paso. She described her area of expertise as

centered at the intersection of developmental psychology and legal psychology, particularly with

a focus on adolescent risk behavior and juvenile delinquency. On direct examination, she was

asked to explain the concept of culpability based on her expertise. Without objection, she answered

that “culpability” referred to “one’s blameworthiness for their criminal actions.” She further

explained that adolescents are less culpable than adults, generally speaking, due to their

developmental immaturity. She described that, across different ages, studies show psychosocial

maturity dips during mid-adolescence before it reaches adult levels, which does not occur “until

the mid-20s and even into age 30.” As a result, she opined that adolescents, including 17-yearolds, are generally less culpable than adults in the commission of a crime. She claimed it would

better serve punishment goals like retribution, deterrence, rehabilitation, and incapacitation, to

only prosecute 17-year-olds in the juvenile system.

As a second witness, Jaime Arbona, M.D., a licensed psychiatrist, gave testimony on his

interview and evaluation of Juarez. Dr. Arbona testified that Juarez was cognitively and

psychosocially underdeveloped for his age, but he was not intellectually disabled. He confirmed

his opinions were based on his education, training, and evaluation of Juarez.

Following the hearing, the trial court denied Juarez’s application for habeas relief. Juarez

appealed.
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GENERAL PRINCIPLES

A. Age of criminal responsibility

In 1973, the passage of Title 3 of the Family Code along with a conforming amendment to

the Penal Code resulted in the creation of the juvenile justice system of Texas. In re S.L.L., 906

S.W.2d 190, 192 (Tex. App.—Austin 1995, no writ) (citing Act of May 25, 1973, 63rd Leg., R.S.,

ch. 544, 1973 Tex. Gen. Laws 1460 (codified at Tex. Fam. Code Ann. §§ 51.01–56.02)); Miller v.

State, 640 S.W.2d 404, 406 (Tex. App.—San Antonio 1982), aff’d en banc, 708 S.W.2d 436

(Tex. Crim. App. 1984). Adoption of this Juvenile Justice Act protected juvenile rights to the

extent they were not otherwise protected by the U.S. and Texas Constitutions. In re S.L.L., 906

S.W.2d at 192. In 1987, the legislature added the determinate-sentencing provisions to the Family

Code. Id.; see also Tex. Fam. Code Ann. §§ 53.045, 54.04, 54.11. By means of this sentencing

scheme, Texas enacted “an alternative to the criminal justice system and adult certification for

those juveniles charged with violent delinquent conduct.” In re S.L.L., 906 S.W.2d at 192.

Pursuant to this juvenile system, the Family Code defines the term “child” as a person “ten

years of age or older and under 17 years of age.” Tex. Fam. Code Ann. § 51.02(2) (emphasis

added). And concomitant with that provision, the Penal Code includes a carve-out provision, with

multiple sub-parts, providing for minimal ages affecting criminal responsibility. See Tex. Penal

Code Ann. § 8.07(a)–(e). Except for its sub-parts not relevant here, § 8.07(a) provides that “[a]

person may not be prosecuted for or convicted of any offense that the person committed when

younger than 15 years of age[.]” See Tex. Penal Code Ann. § 8.07(a)(1)–(7). Moreover, for persons

over 15, but younger than 17, § 8.07(b) provides the following:

Unless the juvenile court waives jurisdiction under Section 54.02, Family Code,

and certifies the individual for criminal prosecution or the juvenile court has

previously waived jurisdiction under that section and certified the individual for
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criminal prosecution, a person may not be prosecuted for or convicted of any

offense committed before reaching 17 years of age except an offense described by

Subsections (a)(1)–(5).

Tex. Penal Code Ann. § 8.07(b) (emphasis added). As for punishment, § 8.07(c) provides that

“[n]o person may, in any case, be punished by death for an offense committed while the person

was younger than 18 years.” Tex. Penal Code Ann. § 8.07(c).

B. Eighth Amendment of the U.S. Constitution

The Eighth Amendment of the U.S. Constitution provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const.

amend. VIII. “The provision is applicable to the States through the Fourteenth Amendment.”

Roper, 543 U.S. at 560. As explained by the U.S. Supreme Court, “the Eighth Amendment

guarantees individuals the right not to be subjected to excessive sanctions.” Id. “The right flows

from the basic ‘precept of justice that punishment for crime should be graduated and proportioned

to the offense.’” Id. (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)). “By protecting even

those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government

to respect the dignity of all persons.” Id.

CRUEL AND UNUSUAL PUNISHMENT

In his sole issue on appeal, Juarez contends that Texas Family Code Ann. § 51.02(2) and

Texas Penal Code Ann. § 8.07(b)—defining 17-year-olds as adults for criminal prosecution—are

unconstitutional on their face and as applied to him. He contends this practice of defining 17-yearolds as adults, to punish them more severely, offends the Eighth Amendment of the U.S.

Constitution because: (1) society has rejected the practice; and (2) children are less culpable than

adults for criminal conduct. He thus maintains the district court should have granted him pretrial

habeas relief from this unconstitutional prosecution as an adult.
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A. Standard of review and applicable law

We review for an abuse of discretion a trial court’s ruling on a pretrial application for

habeas relief. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). The trial court

abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules

and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). On

review, we must give deference to the trial court’s resolution of historical facts supported by the

record, as well as to the application of law to fact questions that turn on credibility and demeanor.

Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). However, when the resolution of

any ultimate question turns on an application of legal standards, we review the trial court’s ruling

de novo. Id.

Article 11.08 of the Texas Code of Criminal Procedure allows an applicant indicted for a

criminal offense, whose guilt has not been formally adjudicated, to challenge his confinement by

pretrial writ application. See Tex. Code Crim. Proc. Ann. art. 11.08. An applicant for habeas corpus

relief must prove his or her claim by a preponderance of the evidence. State v. Guerrero, 400

S.W.3d 576, 583 (Tex. Crim. App. 2013). “[T]he writ of habeas corpus is an extraordinary remedy

that is available only in the absence of an adequate remedy at law.” Ex parte Beck, 541 S.W.3d

846, 852 (Tex. Crim. App. 2017).

B. Analysis

(1) Cognizability

Because a pretrial request for habeas corpus relief is an extraordinary remedy, we must

determine whether Juarez’s claim—which asserts the State is pursuing a criminal prosecution

prohibited under the Eighth Amendment—is cognizable on pretrial habeas application. See

Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (“[W]hether a claim is even cognizable
7

on pretrial habeas is a threshold issue that should be addressed before the merits of the claim may

be resolved.”). “Pretrial habeas followed by an interlocutory appeal, is an extraordinary remedy.”

Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (citing Ex parte Ellis, 309 S.W.3d

at 79). Ordinarily, on review, such claims are not cognizable because of applicant’s ability to

appeal trial errors in the event of a conviction. See Ex parte McCullough, 966 S.W.2d 529, 531

(Tex. Crim. App. 1998). That is, if a district court denies a pretrial habeas petition, an applicant

may still appeal that ruling on a direct appeal. See id. If an appellate court concludes that grounds

for habeas relief are not cognizable on appeal, it must affirm the trial court’s denial of habeas

corpus relief. Ex parte Gutierrez, 989 S.W.2d 55, 56 (Tex. App.—San Antonio 1998) (citing

McCullough, 966 S.W.2d at 531; Ex parte Yates, 966 S.W.2d 743, 744 (Tex. App.—San Antonio

1998, pet. ref’d)). Importantly, “[t]his remedy is reserved ‘for situations in which the protection of

the applicant’s substantive rights or the conservation of judicial resources would be better served

by interlocutory review.’” Ex parte Perry, 483 S.W.3d at 895.

In particular, the Court of Criminal Appeals has held that claims involving a right to speedy

trial, a challenge to the denial of a motion to suppress, or collateral estoppel that does not allege a

double jeopardy claim, are disallowed on pretrial habeas. Id. As well, “pretrial habeas is generally

not available to test the sufficiency of the charging instrument or to construe the meaning and

application of the statute defining the offense charged.” Id. (citing Ex parte Ellis, 309 S.W.3d at

79). As for challenges based on conditions of confinement, a habeas applicant must challenge

either the legality or the duration of his incarceration, but he may not seek relief for circumstances

that are deemed “the terms and conditions of his confinement[.]” Ex parte Benavides, 801 S.W.2d

535, 537 (Tex. App.—Houston [1st Dist.] 1990, writ dism’d w.o.j.); see also Ex parte Lockett, 956

S.W.2d 41, 42 (Tex. Crim. App. 1997) (en banc) (holding that the applicant’s failure to challenge
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either “the fact or the length of his confinement” deprives the court of jurisdiction to hear his

claim). In this respect, “a writ of habeas corpus is not available to secure determination of a

question that, even if determined in the [applicant’s] favor, would not result in his immediate

release.” Ex parte Benavides, 801 S.W.2d at 537 (citing Ex parte Ruby, 403 S.W.2d 129, 130

(Tex. Crim. App. 1966) (per curiam)).

As an extraordinary remedy, pretrial habeas is an appropriate vehicle to assert a facial

challenge to the constitutional validity of a statute. Ex parte Perry, 483 S.W.3d. at 895.

Accordingly, “facial constitutional challenges . . . are cognizable on pretrial habeas regardless of

whether the particular constitutional right at issue would be effectively undermined if not

vindicated prior to trial.” Id. at 896. Conversely, the Court of Criminal Appeals has held that

“pretrial habeas cannot be used to advance an as-applied constitutional challenge to a statute.” Id.

at 895. Yet, in doing so, it further explained that “[w]hen we say that as-applied challenges are not

cognizable pretrial, what we mean is that, unlike with facial challenges, the unconstitutionality of

a statute as applied is not, in the abstract, a basis for invoking the pretrial writ.” Id. at 896

(emphasis in original). As a result, the Court further cautioned that “certain types of as-applied

claims may be raised by pretrial habeas because the particular constitutional right at issue in the

as-applied challenge is the type that would be effectively undermined if not vindicated prior to

trial.” Id.

With cognizability in mind as to the as-applied challenge, we begin with Juarez’s facial

challenge of the two statutes at issue.
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(2) The facial challenge

Juarez argues the Texas practice of defining a 17-year-old as an adult—so as to impose

more severe punishment than what is otherwise imposed by a juvenile court—is unconstitutional

under the Eighth Amendment of the U.S. Constitution as interpreted by the U.S. Supreme Court.

Juarez urges that children are less culpable for criminal conduct than adults; and modern society

has rejected the practice of trying them as adults.

Relying on a line of U.S. Supreme Court cases, Juarez argues the prosecution and

punishment of a 17-year-old as an adult violates the Eighth Amendment. First, he cites to Roper

v. Simmons, a U.S. Supreme Court case holding that execution of individuals who were under 18

years of age at the time of the commission of an offense violated the Eighth and Fourteenth

Amendments of the U.S. Constitution. 543 U.S. at 578–79. Second, he cites to Graham v. Florida,

where the U.S. Supreme Court held the Eighth Amendment prohibits the imposition of a sentence

of life-without-parole on a 16-year-old offender who had not committed a homicide related

offense. 560 U.S. at 82. And third, he cites to Miller v. Alabama, a case in which the U. S. Supreme

Court held that a sentencing scheme which mandated the imposition of a sentence of life

imprisonment without the possibility of parole for juvenile offenders violated the Eighth

Amendment. 567 U.S. 460, 479 (2012). Juarez broadly asserts that “Roper and its progeny draw a

bright line” between 18-year-olds and less culpable 17-year-olds, arguing that “the former may be

treated as adults; the latter may not[.]” Because we conclude that Juarez misconstrues and overly

extends the holdings of the Roper line of cases, we disagree.

Each of these three cited cases involve the constitutionality of sentencing schemes that

either imposed a death penalty sentence or mandatory life-without-parole. For example, in Miller,

the U.S. Supreme Court narrowly held “that mandatory life without parole for those under the age
10

of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual

punishments.’” Miller, 567 U.S. at 465. Unlike Juarez’s contention, however, the cited cases are

directed at particular aspects of sentencing schemes, not at statutes defining adulthood or setting

an age affecting criminal culpability.

Indeed, by their plain text, the challenged statutes do not impose mandatory sentences or

punishment at all. Instead, the Family Code provision defines the meaning of “child” as used

throughout the Code, while the Penal Code provision sets forth provisions addressing ages

affecting criminal responsibility. See Tex. Fam. Code Ann. § 51.02(2); Tex. Penal Code Ann.

§ 8.07(b). Moreover, Juarez has not cited to any controlling authority, and we have found none,

which extend the holdings in Roper, Graham, and Miller to these age-defining provisions. In

addressing a similar claim, however, at least one appellate court from Illinois has found that

statutes of this type determine the forum in which 17-year-olds are to be tried, but do not otherwise

set out the punishment that defendants are to receive. See, e.g., People v. Pacheco, 991 N.E.2d

896, 907 (Ill. App. Ct. 2013) (holding that an automatic imposition of any adult sentence on a

juvenile defendant as a result of an automatic transfer statute does not violate the Eighth

Amendment and concluding Roper, Graham, and Miller do not prohibit a defendant from being

subject to the same mandatory minimum sentence as an adult). Lastly, in Lewis v. State, the Court

of Criminal Appeals observed that, after the reformations by the appellate courts, offenders who

were under 18 years old at the time of their charged offense can no longer be sentenced to life

without parole under Texas law. Lewis v. State, 428 S.W.3d 860, 863–64 (Tex. Crim. App. 2014)

(citing Tex. Penal Code Ann. § 12.31). That is, under § 12.31, juvenile offenders in Texas do not

now face life without parole at all. Id. As a result, Juarez’s case does not fall within the scope of

the Roper line of cases. Because the statutes at issue impose no punishment at all, Juarez has failed
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to show that either provision imposes cruel and unusual punishment in violation of the Eighth

Amendment. Accordingly, we conclude that Juarez did not establish, as a matter of law, that the

statutes at issue were unconstitutional on their face.

We overrule the first part of Juarez’s sole issue in which he raised a facial challenge.

(3) The as-applied challenge

As for his as-applied challenge, Juarez contends his challenge is cognizable because his

“right to be free of cruel and unusual punishment would be undermined by waiting to decide his

claim until after punishment is imposed, a process that could take years.”

Although Ex parte Perry noted that the Court had described “that as-applied challenges are

not cognizable before trial,” it also acknowledged it allowed “certain types of claims to be raised

by pretrial habeas because the rights underlying those claims would be effectively undermined if

not vindicated before trial.” Id. at 895 (citing Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim.

App. 2001)). Under that category of rights, the Court noted it had “so far, recognized the

constitutional protections involving double jeopardy and bail.” Id. at 895–896. The rationale for

doing so derived from Abney v. United States, which involved a pretrial denial of a double jeopardy

claim that was appealed to the U.S. Supreme Court. Id. at 896 (citing Abney v. U. S., 431 U.S. 651,

662 (1977)).

In Ex parte Perry, the Court noted the explanation given in Abney for permitting such

interlocutory appeal in a case of that nature “is that the defendant would lose an aspect of the

Double Jeopardy Clause’s protection by being forced to endure a trial that the Double Jeopardy

Clause was designed to prohibit.” Id. That is, “[i]f a criminal defendant is to avoid exposure to

double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge

to the indictment must be reviewable before that subsequent exposure occurs.” Id. (quoting Abney,
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431 U.S. at 662) (emphasis in original). Adopting Abney’s reasoning, the Court of Criminal

Appeals has since held that a “right not to be exposed to double jeopardy” is cognizable on pretrial

habeas and reviewable in an interlocutory appeal from the habeas proceeding. Id. (quoting Ex parte

Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982)). Relying on that rationale, the Court in

Ex parte Perry extended the interlocutory appeal exception to as-applied claims alleging an

infringement of a government official’s own power. Id. at 898.

Here, Juarez also relies on the rationale of Ex parte Perry to argue that his as-applied

challenge is cognizable before trial because “the right at issue would be effectively undermined if

not vindicated prior to trial.” To illustrate his claim, he urges the process could take years to

complete. In the meantime, however, he contends “he has been (and continues to be) locked up

with adult criminals for an offense alleged to have occurred when he was a child.” He claims, then,

that “he is being deprived of the opportunities for rehabilitation and protections available in the

juvenile system.” That is, “[i]f his claim is decided years from now—after conviction and appeal

and perhaps 11.07 habeas litigation—he will be too old to benefit from the juvenile system and

too hardened by years in adult prisons for it to matter.”

As evidentiary support for his argument, he points to the testimony of his expert,

Dr. Arbona, who opined that Juarez was significantly underdeveloped both cognitively and

psychosocially. The basis for this opinion included multiple factors including: (1) that Juarez

lacked resources and was in a state of poverty; (2) that his father was not part of his life, and Juarez

understood that his father was in and out of jail; and (3) that Juarez witnessed his mother sustain

verbal and physical abuse. Consequently, as Juarez points out, Dr. Arbona posited that despite

Juarez’s immaturity, he could develop further in a “structured, protective, reliable, dependable

environment.” Juarez implies that his adult confinement lacks these protections.
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Advancing his as-applied challenge, Juarez points out that he was 17 at the time of the

alleged offense. But he claims that the Texas laws that he challenges “work[] together as a single

punishment scheme to punish seventeen-year-olds as adults and deny them the benefits of the

juvenile justice system.” Relying on the Roper line of cases, he contends that “[t]he Supreme Court

holds the line of adulthood is at 18 years.” Thus, he urges that the challenged statutes operate to

keep him out of the very system that could possibly provide the environment that he needs. For

that reason, he claims the only way to protect his Eighth Amendment interest is to decide his claim

pretrial. In doing so, he maintains this Court should reverse the district court and grant relief in the

form of dismissing the indictment in this case. On de novo review, we disagree that Juarez has

established that his as-applied challenge is cognizable.

As earlier stated, it has been consistently held that, except when double jeopardy or

separation of power is involved, that pretrial habeas is not cognizable unless the rights underlying

a claim would be effectively undermined if not vindicated before trial. Ex parte Perry, 483 S.W.3d

at 895; Ex parte Ellis, 309 S.W.3d at 79. Most notably, this limitation includes a constitutional

challenge based on an Eighth Amendment violation. See Ex parte Powell, 570 S.W.3d 417, 421

(Tex. App.—Waco 2019, no pet.) (concluding that an adult applicant’s Eighth Amendment claim

was not cognizable in a pretrial writ of habeas corpus); Ex parte Ragston, 402 S.W.3d 472, 477

(Tex. App.—Houston [14th Dist.] 2013), aff’d sub nom. Ragston v. State, 424 S.W.3d 49

(Tex. Crim. App. 2014) (determining that applicant’s pretrial habeas complaint contending that

because he was 17 years old on the date of the alleged offense, and that imposition of a capital

felony sentence would violate his Eighth Amendment rights, was not cognizable on a pretrial writ).

Accordingly, we conclude that Juarez’s as-applied challenge to the constitutionality of

Texas’s statutes defining the age of criminal culpability at age 17 years old is not cognizable on a
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pretrial writ. See Ex parte Ellis, 309 S.W.3d at 81–82. Thus, we overrule the remaining part of

Juarez’s sole issue raising an as-applied challenge.

In sum, Juarez failed to establish the trial court abused its discretion in denying his

application for writ of habeas corpus. We overrule Juarez’s sole issue.

CONCLUSION

We affirm the trial court’s judgment denying habeas relief.

GINA M. PALAFOX, Justice

April 22, 2024

Before Alley, C.J., Palafox and Soto, JJ.

(Do Not Publish)