Ex Parte Jazzy Nicole Lucero v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-24-00216-CR
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Ex Parte Jazzy Nicole Lucero, Appellant

On Appeal from the 243rd District Court
El Paso County, Texas
Trial Court No. 20220D04337

M E MO RA N D UM O PI NI O N
Appellant Jazzy Lucero appeals the trial court’s order denying her pretrial application for

writ of habeas corpus.1 Lucero asserts that two Texas statutes, which define 17 as an age affecting

criminal responsibility, are unconstitutional on their face and as applied to her 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.

1
See Tex. Code Crim. Proc. Ann. art. 11.08.
I. BACKGROUND

On October 13, 2022, an El Paso County grand jury returned an indictment charging Lucero

with five counts of the first-degree felony offense of injury to a child.2 Lucero was 17 years old at

the time of the alleged offenses.

On September 1, 2023, Lucero filed a second-amended pretrial application for writ of

habeas corpus, asserting that § 51.02(2) of the Texas Family Code and § 8.07(b) of the Texas Penal

Code are unconstitutional on their face and as applied to Lucero.3 The trial court held a hearing on

the application, at which it heard arguments from both parties.4

At the conclusion of the hearing, the trial court denied Lucero’s application for habeas

relief. Lucero appealed.

II. DISCUSSION

In her sole issue, Lucero argues that the trial court erred in denying her application for writ

of habeas corpus, because § 51.02(2) of the Texas Family Code and § 8.07(b) of the Texas Penal

Code are unconstitutional under the Eighth Amendment, both on their face and as applied to her.

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

2
See Tex. Penal Code Ann. § 22.04(a)(1), (a)(2).
3
Lucero filed her original “Motion/Application for Writ of Habeas Corpus Texas Family Code § 51.02(2) & Texas
Penal Code § 8.07(b) Are Facially Unconstitutional and Unconstitutional as Applied” on March 15, 2023, and she
filed her amended application on March 17, 2023.
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There were technically three hearings where the trial court took up the issue of the application for writ of habeas
corpus. Those hearings took place on March 29, 2023, May 17, 2023, and September 13, 2023.

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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 principles, 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. 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, 708 S.W.2d 436

(Tex. Crim. App. 1984) (en banc). Adoption of the 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

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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)(A) (emphasis

added). Attendant 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 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 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. Pen. 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).

C. Lucero’s claims are not cognizable.

Lucero argues that the trial court erred in denying her application for writ of habeas corpus,

because § 51.02(2) of the Texas Family Code and § 8.07(b) of the Texas Penal Code violate the

Eighth Amendment, both on their face and as applied to her. This case, including its facts and

arguments, are substantively the same as those presented in two cases our Court decided a little

over a year ago. See Ex parte Juarez, No. 08-23-00159-CR, 2024 WL 1723155, at *1–2

(Tex. App.—El Paso Apr. 22, 2024, pet. ref’d) (mem. op., not designated for publication); Ex parte

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Rodriguez, No. 08-23-00154-CR, 2024 WL 1723968, at *1–2 (Tex. App.—El Paso Apr. 22, 2024,

pet. ref’d) (mem. op., not designated for publication). In both Juarez and Rodriguez, the applicants

also argued that the same statutory provisions violate the Eighth Amendment. Juarez, 2024 WL

1723155, at *1, *3; Rodriguez, 2024 WL 1723968, at *1, *3.

Like Rodriguez and Juarez, Lucero relies on a line of U.S. Supreme Court precedent to

argue that the prosecution and punishment of a 17-year-old as an adult violates the Eighth

Amendment. Juarez, 2024 WL 1723155, at *4; Rodriguez, 2024 WL 1723968, at *4. In Rodriguez

and Juarez, we rejected the argument holding that the cases relied on by Juarez and Rodriguez

dealt with sentencing schemes that imposed the death penalty or mandatory-life-without-parole

but did not deal with statutes (like the two at issue here) that define adulthood or set an age affecting

criminal culpability. Juarez, 2024 WL 1723155, at *5; Rodriguez, 2024 WL 1723968, at *4. Lucero

does not raise any new arguments and we, again, reject them consistent with our prior decisions.

Juarez, 2024 WL 1723155, at *5; Rodriguez, 2024 WL 1723968, at *4.

Lucero also argues, like Rodriguez and Juarez, that her as-applied challenge is cognizable

on a pretrial writ of habeas corpus. Juarez, 2024 WL 1723155, at *5; Rodriguez, 2024 WL

1723968, at *5; see also Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (“[W]hether a

claim is even cognizable on pretrial habeas is a threshold issue that should be addressed before the

merits of the claim may be resolved.”). Specifically, she argues that her as-applied challenge is

cognizable since pretrial resolution of the issues would not require the development of facts; a

ruling in her favor would result in her immediate release; and her rights would be undermined if

they are not vindicated prior to trial. She also contends that having been locked up with “adult

criminals” has deprived her of “opportunities for rehabilitation and [the] protections available in

the juvenile system.” In addition, Lucero maintains that given her cognitive and psychosocial

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underdevelopment, trying her “as an adult is thus especially incompatible with the goals of

punishment that factor into the Eighth Amendment analysis.” Both Juarez and Rodriguez made

largely similar arguments. Juarez, 2024 WL 1723155, at *5–7; Rodriguez, 2024 WL 1723968, at

*5–6.

In both cases we noted that a pretrial habeas is not cognizable unless “the rights underlying

a claim would be effectively undermined if not vindicated before trial.” Juarez, 2024 WL 1723155,

at *6; Rodriguez, 2024 WL 1723968, at *6. We then noted that “this limitation includes a

constitutional challenge based an Eighth Amendment violation.” Juarez, 2024 WL 1723155, at *6;

Rodriguez, 2024 WL 1723968, at *6. Lucero provides no separate or distinct reason to depart from

our prior decisions. Accordingly, we conclude here as well that Lucero’s claim is not cognizable.

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

MARIA SALAS MENDOZA, Chief Justice

November 7, 2025

Before Salas Mendoza, C.J., Palafox and Soto, JJ.

(Do Not Publish)

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