PD-1634-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/8/2015 6:01:02 PM June 9, 2015 Accepted 6/9/2015 8:48:55 AM ABEL ACOSTA NO. PD-1634-14 CLERK

IN THE COURT OF CRIMINAL APPEALS STATE OF TEXAS

AARON JACOB MOORE, Appellant

VS.

STATE OF TEXAS, Appellee

No. 01-13-00663-CR IN THE FIRST COURT OF APPEALS, HOUSTON, TEXAS

CAUSE NO. 12-DCR-059791 IN THE 400TH DISTRICT COURT, FORT BEND COUNTY, TEXAS

STATE'S BRIEF ON THE MERITS

John F. Healey District Attorney, 268th Judicial District Fort Bend County, Texas

C. Alexandra Foley Assistant District Attorney

Gail Kikawa McConnell SBOT #11395400 Assistant District Attorney 301 Jackson Street Richmond, Texas 77469 (281) 341-4460 / (281) 238-3340 (fax)

Counsel for the State

IDENTITY OF THE PARTIES AND COUNSEL The Courts Hon. Jeffrey A. McMeans Juvenile Court Judge County Court at Law No. 2 Fort Bend County, Texas Hon. Clifford J. Vacek former District Court Judge 400th Judicial District Court (retired September 30, 2014) Fort Bend County, Texas

For Appellant, Aaron Moore Kirby J. Taylor Attorneys in the Juvenile Court 4810 Caroline Street Houston, Texas 77004-5608 Tommy James Stickler, Jr. Attorney in the District Court 235 Sealy Street Alvin, TX 77511 Carmen Roe Attorney on Appeal 440 Louisiana, Suite 900 Houston, Texas 77002

i For the State John F. Healey, Jr. District Attorney, 268th Judicial District 301 Jackson Street Fort Bend County Richmond, TX 77469 C. Alexandra Foley Assistant District Attorney in the 301 Jackson Street Juvenile and District Courts Richmond, TX 77469 Gail Kikawa McConnell Assistant District Attorney on Appeal 301 Jackson Street Richmond, TX 77469 ii TABLE OF CONTENTS IDENTITY OF THE JUDGES, PARTIES, AND COUNSEL. . . . . . . . . . . . . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . x QUESTION GRANTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x Does the court of appeals’s construction of “the state” in Section 54.02(j)(4)(A), Family Code require dismissal of a case with prejudice without consideration of the factors for oppressive delay in violation of the separation of powers doctrine? STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The court of appeals combined the investigatory function of law enforcement agencies with the litigation function of the prosecution in construing “the state” for the purposes of Family Code, Section 54.02(j)(4)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. The court of appeals failed to consider whether the investigative delay was oppressive before vacating the judgment. . . . . . . . . . . . . . 8 C. The Due Process Clause protects juvenile offenders from oppressive investigatory delay in the prosecution of their cases. . . . . 9 iii D. The Texas Constitution explicitly provides for the separation of governmental powers. The Legislature encroached on the duty of the District Attorney to prosecute cases by requiring dismissal with prejudice without first considering whether the delay was unconstitutional.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 69, 70, 72] Det. Cox testified that if the CPS and medical records had a different birth date than her initial report, she did not use the records to verify Appellant’s birth date, but “to make sure that everything’s consistent as far as an outcry for a victim.” [1 RR 71]

Still believing that Appellant was seventeen, Det. Cox filed this case with the district attorney’s office on July 22, 2010, eleven days after Appellant had already turned eighteen. [1 RR 71, 72]

Det. Cox testified that it was not unusual for a case like Appellant’s to take two-years to investigate and file because at that time she was the only detective handling a caseload of 468 CPS cases. [1 RR 72-73] Det. Cox’s caseload lightened somewhat in 2009 to 330 cases, and again in 2010 to 195 cases, as more detectives were assigned, and the detectives were split into child abuse and family violence units. [1 RR 73-74] Det. Cox testified that her high caseload was due to budget issues and the decisions of the Commissioner’s Court. [1 RR 74] At the time of her testimony at the transfer hearing, Det. Cox had an active caseload of thirty-two cases. [1 RR 75]

Det. Cox testified that if she had known Appellant was a year older, she would have filed his case as soon as she could given all the other victims she had to work with. [1 RR 75] Det. Cox explained, “[O]f the 468 cases, if I have a suspect immediately in contact with that victim where they’re in the same house, it’s a father, a mother, a brother and they’re in immediate danger, I have to take that case first. There’s numerous cases that come in like that.”1 [1 RR 92] While the charges against Appellant were serious, Appellant was not an immediate family member residing in the same house with E.W. [1 RR 92]

Det. Cox testified that Appellant’s case was not immediately filed because she “did not have all the records and everything right.” [1 RR 80] Det. Cox testified that she received E.W.’s therapy records from Jeanette Holland at the Christian Counseling Centers and the SANE records from Texas Children’s Hospital in June 2009. [1 RR 92-93] On July 6, 2010, Det. Cox conducted a follow-up interview with E.W.’s mother regarding her concerns regarding information in the CPS report about E.W.’s disabled sister. [1 RR 93-94, 2 RR 60] During this second interview, Det. Cox took photos of the house where the alleged last incident occurred. [1 RR 94]

There was no testimony showing that the two-year investigatory delay in filing this case was unconstitutionally oppressive.

SUMMARY OF THE ARGUMENT

When a case is filed after the juvenile turns eighteen, Section 54.02(j)(4)(A), Family Code authorizes a juvenile court to transfer a case where the State proves by a preponderance of the evidence that the case could not be filed earlier because of “a reason beyond the control of the state.” In this case, the investigating law enforcement agency filed the case after Appellant turned eighteen. The court of appeals analogized “the state” to the Brady line of cases, thus lumping the investigating agency in with the prosecution, and concluded that the State failed to prove a reason beyond its control.

Before ordering the transfer of this case to district court, the juvenile court carefully considered whether there was unconstitutional oppressive investigatory delay in filing the petition. However, unlike the juvenile court, the court of appeals vacated the judgment in this case without first considering whether the delay was unconstitutionally oppressive.

Under the terms of Section 54.02(j)(4)(A), if the State were to fail in its proof, the case would never be prosecuted, i.e., the case is dismissed with prejudice, without a determination of whether there was unconstitutional oppressive investigatory delay. Thus, Section 54.02(j)(4)(A) encroaches on the constitutional duty of district and county attorneys to prosecute cases and violates the Separation of Powers Clause.

ARGUMENT

A. The court of appeals combined the investigatory function of law enforcement agencies with the litigation function of the prosecution in construing “the state” for the purposes of Family Code, Section 54.02(j)(4)(A).

Appellant last penetrated E.W.’s anus when he was sixteen years old. [1 RR 72; 2 RR 23, 25, 26] This offense is a first degree felony that has no statute of limitation and was referred for prosecution after Appellant turned eighteen years old. Tex. Pen. Code §§ 22.021 & 12.32 (West 2008); Tex. Code Crim. Proc. 12.01(1)(B) (West 2008), 1 RR 72.

The Family Code provides the juvenile court with exclusive jurisdiction over proceedings involving a child who is “(A) ten years of age or older and under 17 years of age; (B) or seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.” Tex. Fam. Code §§ 51.02(2) & 51.04(a) (West 2008).

Section 8.07, Penal Code, provides in pertinent part that “a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age,” except for certain offenses committed when the person is younger than 15 years of age, “[u]nless the juvenile court waives jurisdiction2 under Section 54.02, Family Code, and certifies the individual for criminal prosecution.” Tex. Pen. Code §8.07 (West 2008).

Before a person turns eighteen, the Juvenile Code provides the State with discretion to file one of three types of petitions in a first degree felony case like aggravated sexual assault: (1) a petition for an adjudication hearing; (2) a petition for a determinate sentence, to be returned by a grand jury; and (3) a petition for a transfer (to district court) hearing. See Tex. Fam. Code §§ 53.04, 53.045, 54.02(a) (West 2008); Robert O. Dawson, Texas Juvenile Law 565 (8th ed. 2012). Once the person turns eighteen, the Juvenile Code limits the Court to transferring the case to district court under certain circumstances or do nothing, i.e., dismiss the case with prejudice. Tex. Fam. Code § 54.02(j); In re N.J.A., 997 S.W.2d 554, 556 (Tex. 1999).

Here, the District Attorney’s Office received the case after Appellant had turned eighteen and proceeded under Section 54.02(j)(4)(A), which provides for the transfer of a person to district court if the person is eighteen years of age or older and “the juvenile court finds from a preponderance of the evidence that for a reason beyond the control of the state it was not practicable to proceed in juvenile court before the 18th birthday of the person.” Tex. Fam. Code § 54.02(j)(4)(A) (West 2008). A copy of the 2008 version of Section 54.02 is attached hereto as Appendix A.

In considering whether the juvenile court had jurisdiction to transfer this case, the court of appeals analogized “the state” to the Brady line of cases where law enforcement and the prosecution are viewed as one entity. Moore v. State, 446 S.W.3d 47, 52 (Tex. App.--Houston [1st Dist.] 2014). Therefore, the investigatory delays at the Sheriff’s Office in filing this case after Appellant’s eighteenth birthday, were attributed to the prosecution. Moore, 446 S.W.3d at 52.

Under the court of appeals construction, even when there is justifiable investigatory delay, the State must dismiss its case despite there being no statute of limitation for aggravated sexual assault. Tex. Fam. Code § 54.02(j)(4)(A); Tex. Code Crim. Proc. art. 12.01(1)(B).

B. The court of appeals failed to consider whether the investigatory delay was oppressive before vacating the judgment.

Because it viewed the Sheriff’s Office and the District Attorney’s Office as one entity, the court of appeals found that investigatory delays at the Sheriff’s Office were “not reasons beyond the State’s control.” Moore, 446 S.W.3d at 52.

The record shows that before deciding to waive jurisdiction and transfer this case, the juvenile court carefully considered the cases tendered by the State3 that discussed unconstitutional investigatory and pre-indictment delay. [2 RR 105, United States v. Lovasco, 431 U.S. 783 (1977) (no Due Process violation when law enforcement did little to investigate case in seventeen-month delay); State v. White, 306 S.W.3d 753 (Tex. Crim. App. 2010) (seventeen-year delay in murder case by law enforcement not unconstitutional); State v. Krizan-Wilson, 321 S.W.3d 619 (Tex. App.--Houston [14th Dist.] 2010), aff’d 354 S.W.3d 808 (Tex. Crim. App. 2011) (twenty-three-year delay by the prosecution not unconstitutional); and In re N.M.P., 969 S.W.2d 95 (Tex. App.--Amarillo 1998, no pet.) (nine-year delay by law enforcement, who had no probable cause until DNA testing identified N.M.P., was not unconstitutional)]

Unlike the juvenile court, the court of appeals did not consider whether there was unconstitutional oppressive investigatory delay. Moore, 446 S.W.3d at 52.

C. The Due Process Clause protects juvenile offenders from oppressive investigatory delay in the prosecution of their cases.

A person has no constitutional right to be tried as a juvenile. In re P.B.C., 538 S.W.2d 448, 452 (Tex. Civ. App.--El Paso 1976, no writ) (citing Broadway v. Beto, 338 F.Supp. 827, 840 (N.D. Tex. 1971), affirmed for the reasons stated 459 F.2d 483 (5th Cir. 1972), cert. denied 409 U.S. 1012 (1972)). However, juvenile court offers a person important benefits, e.g., avoiding the stigma of an adult criminal conviction, less harsh penalties, and private or no sex offender registration under Chapter 62, Code of Criminal Procedure.^[4] See In re Gault, 387 U.S. ^[1], 22-24 (1967); State v. Maynard, No. 89786-7, 2015 WL 3413327, at *3 (Wash. May 28, 2015); Texas Code of Crim. Proc. art. 62, Subchapter H. (West 2008). Loss of these rights is generally prejudicial to a person.

The Due Process Clause of the Fifth Amendment “always protects defendants against fundamentally unfair treatment by the government in criminal proceedings.” Doggett v. United States, 505 U.S. 647, 666 (1992). This protection extends to oppressive investigatory delay. United States v. Marion, 404 U.S. 307, 324 (1971).

However, “[p]roof of prejudice is generally a necessary, but not sufficient element of a due process claim.” United States v. Lovasco, 431 U.S. 783, 790 (1977). Delay between the commission of the offense and the initiation of prosecution, must be considered in light of “the reasons for the delay as well as the prejudice to the accused.” Id. An indictment that was delayed for further investigation should be dismissed only when the delay “violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community’s sense of fair play and decency.” Id. (citations and internal quotations omitted).

With regard to the due process test for pre-indictment delay, this Court “has followed the Fifth Circuit's bright-line methodology5 in holding that, to be entitled to relief, a defendant must demonstrate that the delay: (1) caused substantial prejudice to his right to a fair trial, and (2) was an intentional device used to gain a tactical advantage over the accused.” State v. Krizan-Wilson, 354 S.W.3d 808, 814-15 (Tex. Crim. App. 2011) (no violation in pre-indictment delay); Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim. App. 1999) (no violation in investigative delay; “We are unaware of any requirement that the police conduct continuous investigation”).

In In re N.M.P., 969 S.W.2d 95, 101-02 (Tex. App.--Amarillo 1998), the El Paso Court of Appeals applied this due process test in a juvenile case, albeit under a different section of the Family Code. Id. at 101-02 (decided under Section 53.04, requiring a petition or hearing “as promptly as practicable”).

The Washington Supreme Court applies the test set forth in Lovasco to cases involving crimes committed by juveniles and requires the defendant to first produce evidence demonstrating that the delay has caused actual prejudice to his defense. See, e.g., State v. Salavea, 86 P.3d 126, 131 (Wash. 2004).

The Ohio Supreme Court also applies the Lovasco due process test in cases where the offense was committed by a juvenile and requires the defendant to first present “evidence establishing substantial prejudice.” See, e.g., State v. Walls, 775 N.E.2d 829, 845 (Ohio 2002).

This Court applied the adult due process test for a speedy trial violation in a case involving an offense committed by a juvenile in Grayless v. State, 567 S.W.2d 216, 220-22 (Tex. Crim. App. 1978).

To date, the State has found no case holding that the adult due process tests cannot or should not be used in cases involving offenses committed by a juvenile.

D. The Texas Constitution explicitly provides for the separation of governmental powers. The Legislature encroached on the duty of the District Attorney to prosecute cases by requiring dismissal with prejudice without first considering whether the delay was unconstitutional.

The Texas Constitution explicitly provides for the separation of the powers of government into three distinct departments:

Sec. ^[1]. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. Tex. Const. art. II, § 1.

Article 5, Section 21, of the Texas Constitution establishes “[t]he office of county attorney, as well as district and criminal district attorney.” Meshell v. State, 739 S.W.2d 246, 253 (Tex. Crim. App. 1987); Tex. Const. art. V, § 21. “[O]ur courts have long recognized” that the primary function of district and county attorneys is “to prosecute the pleas of the state in criminal cases.” Meshell, 739 S.W.2d at 254.

1. The Texas Constitution authorizes the Legislature to make procedural rules for the government of the courts; not substantive rights.

This Court has recognized that the Texas Constitution provides the Legislature with “complete authority to pass any law regulating the means, manner, and mode of assertion of any of [a defendant’s] rights in the court.” Meshell, 739 S.W.2d at 255 (quoting Johnson v. State, 58 S.W. 60, 71 (1900)). This authority is presently embodied in Article V, Section 31(a):

(a) The Supreme Court is responsible for the efficient administration of the judicial branch and shall promulgate rules of administration not inconsistent with the laws of the state as may be necessary for the efficient and uniform administration of justice in the various courts. Tex. Const. art. V, § 31(a).

A prerequisite to the Legislature’s power to act under Article V, [§ 31(a)], however, is the existence of a right for which the legislature can provide procedural guidelines. Were it otherwise, the procedural legislation would itself create a substantive “right,” and exceed the grant of power in Article V, [§ 31(a)], supra, thereby encroaching upon another department. Meshell, 739 S.W.2d at 255.

In determining whether the Legislature has exceeded its grant of power, this Court has looked to whether the statute is directed to providing procedural guidelines to effect a substantive right or is focused on the prosecutorial function. See, e.g., Meshell, 739 S.W.2d at 255 (Speedy Trial Act is “directed at speeding the prosecutor’s preparation and ultimate readiness for trial” rather than “providing procedural guidelines for the speedy commencement of trial”).

2. Rather than providing guidelines for the speedy filing of a petition, Section 54.02(j)(4)(A) is directed at speeding up the state’s filing of a petition without regard to investigatory delay.

In Section 54.02(j)(4)(A), the Legislature provided the juvenile court with the limited jurisdiction to transfer a case to district court when a juvenile is eighteen years or older. In re N.J.A., 997 S.W.2d at 556 (construing Tex. Fam. Code § 54.02(j)). It did not provide the juvenile court with the power to adjudicate a juvenile who is eighteen years or older. Id. Thus, if the conditions for transfer are not met, the juvenile court can do nothing with the case, and the delinquent conduct is effectively dismissed with prejudice. The defendant is granted a bonanza right not to be prosecuted for, in this case, a first degree felony offense with no statute of limitations, when there was no constitutional violation of his rights.

In Meshell, this Court held that the Speedy Trial Act violated the separation of powers doctrine by setting a deadline after which a case would be dismissed with prejudice. Meshell, 739 S.W.2d at 257. Like “for a reason beyond the control of the state” in Section 54.02(j)(4)(A), Article 32A.02 provided exceptions for when a delay would not require dismissal. Meshell, 739 S.W.2d at 251.

This Court noted that “our courts have long recognized” that the primary function of district and county attorneys is “to prosecute the pleas of the state in criminal cases”and held:

An obvious corollary to a district or county attorney's duty to prosecute criminal cases is the utilization of his own discretion in the preparation of those cases for trial. Therefore, under the separation of powers doctrine, the Legislature may not remove or abridge a district or county attorney's exclusive prosecutorial function, unless authorized by an express constitutional provision. Meshell, 739 S.W.2d at 254-55.

This Court further found that in failing to incorporate the factors for a speedy “commencement of trial” in the statute, the Legislature deprived the prosecutor “of his exclusive prosecutorial discretion in preparing for trial without any consideration for the factors used to determine whether appellant has been deprived of his constitutional right to a speedy trial.” Meshell, 739 S.W.2d at 256.

In Ex parte Young, 213 S.W.3d 327 (Tex. Crim. App. 2006), this Court adopted the dissenting opinion of Presiding Judge Keller in State v. Condran, 977 S.W.2d 144 (Tex. Crim. App. 1998). Ex parte Young, 213 S.W.3d at 331. In Condran, Presiding Judge Keller observed:

The lesson drawn from Meshell, Jones,6 and Williams7 is that a legislatively imposed deadline for prosecutorial action violates the Separation of Powers Clause if

(1) the remedy for failing to meet the deadline seriously disrupts the prosecutor's ability to perform his duties, (2) the deadline cannot be justified as necessary to effectuate a superior constitutional interest, and (3) the prosecutor did not contractually submit to the deadline.

In Jones, condition (1) was not true because the remedy of releasing the prisoner on bail did not seriously disrupt the prosecutor's ability to perform his duties. In Williams, condition (3) was not true because the prosecuting authorities had submitted to the deadline by requesting a prisoner under the IADA. But in Meshell, all three of these conditions were true. The remedy for a violation of the Speedy Trial Act was dismissal with prejudice—a remedy which necessarily causes a serious disruption in a prosecutor's ability to perform his duties by conclusively terminating the prosecution. The only constitutional interest arguably involved, the right to a speedy trial, was not effectuated by the Speedy Trial Act because the Barker factors were not included. And, the prosecuting authorities did not contractually submit to the deadlines established. Condran, 977 S.W.2d at 146 (Keller, P.J., dissenting).

3. Section 54.02(j)(4)(A) deprives the prosecutor of his exclusive prosecutorial discretion in preparing for trial in violation of the Separation of Powers Clause.

Here, like Meshell, all three of the conditions for a separation of powers violation are true.

First, if the conditions for transferring the case to district court are not met, the of obtaining custody of the out-of-state prisoner.”).

remedy is dismissal with prejudice. In re N.J.A., 997 S.W.2d at 556. Dismissal with prejudice “necessarily causes a serious disruption in a prosecutor’s ability to perform his duties by conclusively terminating the prosecution.” Condran, 977 S.W.2d at 146 (Keller, P.J., dissenting).

Second, Section 54.02(j)(4)(A) is directed to setting deadlines on the prosecution of a case; it does not insure the constitutional interest of being free from oppressive investigatory delay.

Third, “the prosecuting authorities did not contractually submit to the deadlines established.” Condran, 977 S.W.2d at 146 (Keller, P.J., dissenting).

This Court should find that because Section 54.02(j)(4)(A) does not incorporate the factors for oppressive investigatory delay in dismissing a petition, the statute encroaches on the duties of the district and county attorneys to prosecute criminal cases in violation of the Separation of Powers Clause.

“[T]o provide for the protection of the public and public safety” is the first purpose of the Juvenile Justice Code. Tex. Fam. Code § 51.01(1) (West 2008). The District Attorney’s exclusive prosecutorial discretion in preparing for a case should not be usurped without consideration of the established factors for determining unconstitutional oppressive investigatory delay.

E. The undisputed evidence shows that the delay was not an intentional device used to gain a tactical advantage over the accused and no Due Process violation is shown.

“[A] defendant must demonstrate that the delay: (1) caused substantial prejudice to his right to a fair trial, and (2) was an intentional device used to gain a tactical advantage over the accused.” Krizan-Wilson, 354 S.W.3d at 814-15.

In this case, the delay in filing the case caused Appellant to lose the benefits of juvenile court. But even if the delay thus caused substantial prejudice to Appellant, the delay still must be shown to have been an intentional device used to gain a tactical advantage over Appellant. See Spence v. State, 795 S.W.2d 743, 750 (1990) (no error in denying motion to dismiss the indictment because while Spence showed preindictment delay, he failed “to show that it was intentional delay designed to give the State a tactical advantage over him”).

The undisputed evidence shows that after E.W. outcried, her mother did everything she could to document and report this case--E.W. had a SANE exam and a CAC interview the day she outcried. [2 RR 63-64]

This case was assigned to Sheriff’s Det. Cox, who at the time handled all CPS cases and had a pending caseload of 468 cases while also handling newly reported cases of a priority nature because the perpetrator is a caregiver and resides in the same home. [1 RR 73, 92] Det. Cox testified that given her caseload, it was not unusual for an investigation to last two-years. [1 RR 72-73] Appellant denied E.W.’s allegations. [1 RR 102]

E.W. outcried three weeks after Appellant last assaulted her, and her SANE exam revealed no physical evidence of the assault. [1 RR 95-96] This was a he said- she said case about a continuing aggravated assault over the course of three years and was deserving of additional investigation. A two-year investigative delay in these circumstances is not oppressive or unconstitutional.

Aggravated sexual assault has no statute of limitations. Tex. Code Crim. Proc. art. 12.01(1)(B). It is a first degree felony offense, subject to punishment for five to ninety-nine years or life imprisonment and up to a $10,000 fine. Tex. Pen. Code §§ 22.021(e) & 12.32 (West 2008). Under the Juvenile Justice Code, a person committing such a serious offense may be transferred to district court when the person is just fifteen years of age. Tex. Fam. Code § 54.02(a)(1)(2)(A) (West 2008). These statutes show that the Legislature intended that victims of aggravated sexual assault should be heard and perpetrators punished.

This Court should find that there is no oppressive investigatory delay, reverse the judgment of the court of appeals, and affirm the judgment of the district court.

PRAYER

The State prays that the Court will find that Section 54.02(j)(4)(A), Family Code violates the Separation of Powers Clause and is unconstitutional, find there was no oppressive investigatory delay, reverse the judgment of the court of appeals, and affirm the judgment of the juvenile court.

Respectfully submitted, John F. Healey SBOT # 09328300 District Attorney, 268th Judicial District Fort Bend County, Texas

/s/ Gail Kikawa McConnell Gail Kikawa McConnell SBOT #11395400 Assistant District Attorney 301 Jackson Street Richmond, Texas 77469 (281) 341-4460 / (281) 238-3340 (fax) [email protected]

Counsel for the State

CERTIFICATE OF SERVICE

I hereby certify that a copy of the State's brief on the merits was served by the electronic filing manager or by email June 8, 2015, on Ms. Carmen Roe, Attorney for Appellant, <[email protected]>, and on Ms. Lisa McMinn, State Prosecuting Attorney, <[email protected]>.

/s/ Gail Kikawa McConnell Gail Kikawa McConnell Appendix A V.T.C.A., Family Code § 54.02 Page 1