How a Texas loophole may allow 12-year-old Jocelyn Nungaray’s alleged killers to escape the death penalty

HOUSTON, Texas — Texas has a well earned reputation for its use of the death penalty. Last year, the Lone Star State executed eight inmates — more than any other.

But a loophole in Texas law means that the men who are accused of assaulting 12-year-old Jocelyn Nungaray for two hours, strangling her and then dumping her bound, battered body in a bayou could avoid facing the execution chamber, if they’re convicted.

Two Venezuelan illegal migrants have been charged with capital murder for Jocelyn’s brutal death in Houston.

Franklin Jose Pena Ramos, 26, along with Johan Jose Rangel Martinez, 21, are both being held on $10 million bail.

Harris County District Attorney Kim Og said that her office has not ruled out the death penalty, but cautioned that the charges do not currently allow her office to pursue a lethal sentence.

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In Texas, only the murder of children under 10 makes a defendant automatically eligible for the death penalty, if convicted.

“Our laws treat the age of victims differently, and they’ve changed where they draw the line. It used to be children under six,” she said outside court on Tuesday.

The state later raised the victim age for capital murder to 10, and then 15.

However, Ogg said, for murderers who kill children older than 10, “the death penalty was taken off the table by the legislature, and instead they suggested that life without parole would be the appropriate [sentence].”

But, those circumstances could all change based on the results of pending sexual assault tests.

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“If we change this case to a capital murder with an underlying sexual assault or kidnapping, those cases are death penalty eligible and then at that time we can have a proof evident hearing to hold them at no bond,” Assistant District Attorney Mega Long told a judge Tuesday.

“Charges are just the start, this case is still young and the investigation is continuing everyday and as we gather more evidence, the charges could change.”

Pena Ramos and Rangel Martinez allegedly lured Jocelyn, who snuck out of her house the night of June 16, to the bridge where she was killed.

Jocelyn was seen accompanied by the two in surveillance video taken at a 7-Eleven convenience store that night and on their way to the bridge before the brutal assault and killing took place, prosecutors said.

Pena Ramos said he tried to get Rangel Martinez to stop attacking Jocelyn as he was on top of her, but he proceeded saying he had to “finish what he started” as he covered her mouth, prosecutors said Tuesday during Rangel Martinez’s bond hearing.

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Pena Ramos allegedly sent a message to their boss at a construction company after the killing saying the pair had been partying that night and that someone ended up dead, prosecutors said.

Pena Ramos crossed the southern border illegally into El Paso, Texas, last month, when he was released by federal authorities with an ankle monitor, which he cut off after Jocelyn’s body was found, according to Homeland Security sources.

Rangel Martinez had crossed illegally into El Paso in March, when he was also given an ankle monitor that authorities removed in May after determining he had no known criminal history, The Post first reported last week.

“Our immigration system is broken and if there was ever a case that reflected that, it’s this one,” Ogg said of the pair’s path to the US.

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