CONROE, Texas (AP) — A judge will soon decide whether a Southeast Texas man accused of dousing a boy with gasoline as a teenager in 1998 will be tried as an adult on a murder charge after the boy died more than a decade after the attack.
Testimony concluded Wednesday in a court hearing that will determine if 28-year-old Don Willburn Collins will be tried for murder in the death of Robert Middleton.
Closing arguments in the hearing are set for Wednesday afternoon. It was not immediately known if state District Judge Kathleen Hamilton would issue a ruling Wednesday or later on whether to move the case from juvenile to adult court. If Hamilton denies the transfer, that would end the case.
E. Tay Bond, Collins' attorney, is questioning the constitutionality of the case.
Prosecutors with the Montgomery County Attorney's Office allege that when Collins was 13 years old, he poured gasoline on Middleton on his 8th birthday and set him on fire near his home in Splendora, about 35 miles northeast of Houston. Middleton survived but died in 2011 at age 20 from skin cancer authorities say was caused by the burns. He was burned over 99 percent of his body and endured years of physical therapy and surgeries.
Collins, dressed in a striped blue prison uniform and handcuffed, briefly testified Wednesday to say that he was invoking his Fifth Amendment right to be protected from incriminating himself.
"I will remain silent," said Collins, who is being held on a $1 million bond.
The new probe into Robert Middleton's attack was spurred in part by a deposition Middleton gave two weeks before his death in which he for the first time accused Collins of sexually assaulting him before being set on fire.
During three days of testimony this week by 25 witnesses, prosecutors presented what they believe is new evidence to try Collins for murder, evidence they say was not known when Middleton was attacked in 1998.
This new evidence included statements from one of Collins' cousins, Heather White, who testified Collins had confessed to her that he and another boy had been responsible for the attack. A man who was 8 years old when he was sexually assaulted by Collins in a separate incident testified Collins threatened to burn him like Middleton if he told anybody what happened. Collins was convicted of sexual assault in this separate case.
But Bond says the new evidence presented by prosecutors was known during the original investigation and there is no physical evidence or eyewitnesses linking Collins to the burning or alleged sexual assault of Middleton.
While being questioned Wednesday by Bond, Montgomery County Sheriff's Office Detective Thomas Duroy testified that 13 pieces of evidence from the original investigation were mistakenly destroyed in 2006, including a lighter found where Middleton was burned and a gas can found at Collins' home.
Bond suggested this destroyed evidence could have helped clear Collins.
Bond has argued the case shouldn't be transferred to adult court because in 1998, state law said a juvenile had to be at least 14 years old for a capital felony offense case to be transferred to adult court. The law was changed in 1999 to lower the age to 10.
Prosecutors allege the crime of murder did not take place until 2011, well after the law was changed. Bond said the law can't be retroactively applied to Collins.