How a legal loophole in Texas could allow the alleged killers of 12-year-old Jocelyn Nungaray to avoid the death penalty

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

But a loophole in Texas law means the men accused of attacking 12-year-old Jocelyn Nungaray for two hours, strangling her, and then dumping her bound and battered body into a bayou could avoid the execution chamber if convicted.

Two illegal immigrants from Venezuela have been charged with capital crimes in the brutal death of Jocelyn in Houston.

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

Harris County District Attorney Kim Og said her office is not ruling out the death penalty, but noted that the charges do not currently allow her office to seek the death penalty.

In Texas, the defendant is only automatically sentenced to death for the murder of children under the age of ten.

“Our laws treat the age of the victims differently and have changed the limit. Previously, children under six years of age were considered,” she said in court on Tuesday.

The state later raised the minimum age for committing a capital crime to ten years and then to 15 years.

However, Ogg said, for murderers who kill children over the age of ten, “the death penalty has been taken off the table by the legislature. Instead, life imprisonment without parole has been proposed as an appropriate (punishment).”

However, these circumstances could all change based on the results of upcoming sexual assault tests.

“If we convert this case to a felony case with an underlying sexual assault or kidnapping, those cases are punishable by the death penalty and then we can have an evidentiary hearing to hold her without bail,” Assistant District Attorney Mega Long told a judge on Tuesday.

“The charges are just the beginning. The case is still young and the investigation continues every day. As we gather more evidence, the charges could change.”

Pena Ramos and Rangel Martinez are said to have lured Jocelyn, who had sneaked out of her house on the night of June 16, to the bridge where she was killed.

Surveillance video from a 7-Eleven convenience store showed Jocelyn and the two traveling to the bridge the night before the brutal attack and killing, prosecutors said.

Pena Ramos said he tried to get Rangel Martinez to stop attacking Jocelyn as he lay on top of her, but then he said he had to “finish what he started” while covering her mouth, prosecutors said Tuesday during Rangel Martinez’s bail hearing.

After the murder, Pena Ramos is said to have sent a message to her boss at a construction company telling him that the couple had been partying that night and that someone had died, according to prosecutors.

According to Department of Homeland Security sources, Pena Ramos illegally crossed the southern border into El Paso, Texas, last month. Federal authorities released him with an ankle bracelet, but he removed it after Jocelyn’s body was found.

Rangel Martinez entered El Paso illegally in March, when he was also given an ankle bracelet, which authorities removed in May after determining he had no known criminal record, the Post first reported last week.

“Our immigration system is broken and if there was ever a case that reflects that, this is it,” Ogg said of the couple’s journey to the United States.