Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

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Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

psychosexual evaluation sex offender risk assessment

Psychosexual Evaluations: A Risk Assessment for Sexual Allegation Cases

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psychosexual evaluation sex offender risk assessmentA psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options that will be most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

  1. Clinical interview
  2. Psychometric tests
  3. Physiological assessment of sexual arousal
  4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.

Packingham Social Media Ban for Sex Offenders

SCOTUS Declares Social Media Ban for Sex Offenders Unconstitutional

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Packingham Social Media Ban for Sex OffendersIn today’s world Internet access has become virtually unlimited. And, with new technology come new problems. These problems have led the Supreme Court to address the challenge modern day Internet access has created for the First Amendment in the landmark case, Packingham v. North Carolina. In Packingham, the Court was asked to determine whether a North Carolina law, which makes it a felony for a registered sex offender to access a social media-networking site, violates the First Amendment’s free speech clause.

North Carolina Imposed a Social Media Ban for all Registered Sex Offenders

In 2002, Lester Packingham, a 21-year-old student, pled guilty for taking indecent liberties with a child after having sex with a 13-year-old girl. As such, Packingham was required to register as a sex offender. However, in 2010 Packingham posted to his personal Facebook account thanking God after he received a dismissal for a traffic ticket. This post was observed by a police officer and Packingham was ultimately convicted for violating the social media ban for sex offenders. After making it all the way to the United States Supreme Court, Packingham’s conviction has now been overturned.

Supreme Court holds that Banning Sex Offenders from Social Media Violates the First Amendment

In overturning Packingham’s case, the Court ruled the North Carolina law to be an impermissible restriction of lawful speech. The Court has consistently held that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” As such, the Court ruled that one of the most fundamental places to exchange views is cyberspace—particularly social media platforms. Social media has evolved and formed a stage for many topics protected by the First Amendment, including human thought. It has evolved so much so that “seven in ten American adults” now use at least one form of social media. Thus, the Court reasoned that while it may have once been difficult to determine which “places” are important for the exchange of ideas, it is now clear.

The Internet allows people access to vast amounts of information, which people need to thrive in modern society. North Carolina prohibited access to this information in an effort to protect children, but they ended up preventing Packingham from gaining access to large amounts of information — information unlikely to further sex crimes. As a result, the Court agreed that sex crimes involving children are repugnant, but it explained that even a valid government interest cannot escape all constitutional protections. The Court further noted that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” Thus, the Court determined that North Carolina did not meet its burden to show why the overly broad law was necessary to serve its purpose of protecting children and subsequently declared the law unconstitutional.

For further analysis, see: Amy Howe, Opinion analysis: Court invalidates ban on social media for sex offenders, SCOTUSblog (Jun. 19, 2017, 1:52 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-invalidates-ban-social-media-sex-offenders/ 

Fort Worth Criminal Defense Attorneys

Indecent Exposure: From Class B Misdemeanor to Sex Offender

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Sex Offender Registration for the Offense of Indecent Exposure

Most “sex offenses” in Texas are felonies. Most sex offenses involve some sort of physical contact or an indecent act with a minor. However, there is one offense that is classified as a low-level Class B misdemeanor, than can result in sex offender registration.

Indecent Exposure under Section 21.08 of the Texas Penal Code is a Class B misdemeanor, which means it only carries a range of punishment of 0-180 days in county jail and a fine up to $2,000. Indecent Exposure can range from urinating on a public golf course, to having intercourse in a parked car in a public parking lot, to flashing someone. A person convicted or sentenced to Deferred Adjudication for Indecent Exposure does not typically have to register as a sex offender. If the offense is the first time that person has been charged or convicted with Indecent Exposure, then there is no registration requirement.

10-Year Sex Offender Registration for the 2nd Indecent Exposure Conviction

Under Section 62.005(5)(F) of the Texas Penal Code, a person is required to register as a sex offender for a period of 10 years for “the second violation of Section 21.08 (Indecent exposure), Penal Code.” However, “if the second violation results in a deferred adjudication,” then the person is not required to register. Because the statute uses the term “violation,” instead of “conviction,” a first charge of Indecent Exposure that results in a deferred adjudication still counts toward the total, even if the defendant ultimately has their case dismissed. So it is imperative that a defense attorney negotiate for a deferred adjudication if their client has a previous conviction or deferred for Indecent Exposure.

See what other crimes require Sex Offender Registration in Texas.

Passout Blackout Alcohol Memory Sexual Assault Attorney

Passout vs. Blackout: How Alcohol Can Affect Memory (Voice for Defense Article)

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Alcohol and Memory: An Interview with Texas Forensic Psychologist, Dr. Kelly Goodness, Ph.D

Passout Blackout Alcohol Memory Sexual AssaultAs you can probably imagine, many criminal cases involve events that occur when people are intoxicated. This can be especially true for cases involving allegations of sexual offenses. In these alcohol-fueled situations, the issue of memory can play a large part in the case. When we encounter intoxication and memory issues in sexual assault cases, we often employ the assistance of a forensic psychologist to serve as either an expert consultant or expert witness.  One of the best in her field is Dr. Kelly Goodness of Keller, Texas. Dr. Goodness is an expert in alcohol and the brain, including the difference between “pass out” and “blackout” evidence.  She is one of the most highly employed experts for alcohol-related sexual assault cases involving members of the U.S. Military. What follows is an interview that we conducted with Dr. Goodness regarding how alcohol can impact a person’s memory and how it can apply to the sexual assault context.
______________________

Q: Dr. Goodness, How is Alcohol Related to Memory?

A: Alcohol is a potent amnestic agent. Beginning with just one or two drinks, alcohol can produce detectable memory impairments. As the dose increases, so does the potential magnitude of the memory impairments, all the way up to the total inability to recall events during a drinking episode, otherwise known as a blackout.

Q: How does alcohol disrupt memory formation?

A: There are three general processes involved in long-term memory formation, all of which can be impacted by alcohol. First, information must be perceived by one or more of the senses (sight, hearing, taste, smell, and touch) to form a sensory memory which can last a few seconds. Second, if concentrated on for more than about eight seconds, sensory memory can be transferred to short-term memory to be retained. Short-term memory can last from seconds to minutes, depending on distractions and ability to rehearse or repeat the information. Third, once some kind of association or sufficient repetition has occurred; information can be consolidated, encoded and transferred from short-term memory into long-term memory which then makes the information available for later recall.

Alcohol, affects all stages of the memory process, but the primary effect is on the transfer of information from short-term to long-term memory storage. The drinker can recall long-term memories that were established before they became intoxicated, but their ability to transfer information into long-term storage can begin to degrade with just one or two drinks. As the dose of alcohol increases, the impairment increases and can culminate in blackouts. When blackouts occur the individual can participate in complex activities and even very emotionally charged events that they later cannot remember.

Q: You mentioned blackouts. What exactly is a blackout?

A: Blackouts are periods of amnesia, caused by excessive consumption of alcohol, during which a person actively engages in behaviors, but the brain’s ability to create memories for what transpires is impaired or non-existent. This leaves holes in a person’s memory that can range from spotty recall for events of the previous night (or drinking episode) to the utter absence of memory for large portions of an evening. The person is still able to carry on conversations, engage in activities and respond to others. They just will not recall some or all of what occurred.

Q: Are there different types of blackouts that a person can experience?

A: Yes. There are En Bloc Blackouts and Fragmentary Blackouts. Blackouts are classified based on the extent of amnesia. The amnesia can be total (“en bloc”) or partial (“fragmentary”).

En Bloc blackouts are classified by the inability to later recall any memories from the intoxication period, even when prompted or given cues.

  • No matter what happens, you can never recall it.
  • The information was never recorded so recall is not possible.
  • Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed.
  • It is difficult to determine the end of this type of blackout as sleep typically occurs before they end.

Think of a loved one you have known who has Alzheimer’s. They may tell you what they had for dinner and five minutes later tell you the exact same thing. They never recorded the event of initially informing you in the first place, so they tell you again. En Bloc blackouts are essentially the same phenomenon – just with a different cause.

Fragmentary blackouts are characterized by the inability to recall some events from an intoxicated period, but not all events.

  • The person may be unaware that memories are missing until reminded by others of the existence of these “gaps” in memory.
  • Cues can help them remember at least some of what happened because at least some of the information actually was recorded.
  • They may have more snapshot type recall and it may not be in sequential order.
  • Research indicates fragmentary blackouts are far more common than en bloc blackouts and likely involve alcohol-induced deficits in contextual memory.

Q: Is a blackout different from passing out?

A: Yes, they are different. Although many people refer to “passing out” as going to sleep following ingestion of alcohol, when I say “pass out” in my testimony or describing the research, I am referring to the more formal definition as used in the field of alcohol treatment, in which a pass out is a loss of consciousness due to excessive alcohol intake. By definition, blackout and pass out are mutually exclusive: a blackout is amnesia for the events of any part of a drinking episode, without loss of consciousness. A person in blackout continues to interact and perform complex activities, but has amnesia for these events. A person who is passed out is unconscious and is not having any behavioral experiences to record.

Q: Can blackout and pass out co-occur?

A: Yes. Passing out and blacking out can co-occur. Under the right conditions, a person who consumed alcohol to the point of passing out can be awakened from sleep, engage in activities and have a blackout for that time period.

Q: Can you tell if someone is having a blackout?

A: Determining whether someone is in a blackout state from their behavior alone is next-to impossible. To outside observers, the person may appear to be aware and functioning well enough. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or serious aggression, with little or no recall. They can drive a car, have a normal conversation, or engage in sexual relations.

Even loved ones are unlikely to know. We know that the wives of alcoholics who are known to be prone to blackouts may only know their husband was blacked out when he does not recall information the next day.

Research designed to bring about blackouts shows that those who are in the midst of an En Bloc blackout can easily recall things that have occurred within the last 2 minutes, yet they cannot recall anything that occurs during the episode prior to this period.

Q: From your knowledge of the research on this topic, what causes blackouts?

A: Blackouts are caused by the selective effects of alcohol on specific brain systems and involve a breakdown in the production and utilization of proteins and neurotransmitters in the brain. Blackouts can occur from rapid consumption of alcohol, such as guzzling, chugging, or shots and are more likely with consumption of hard alcohol or the combination of hard alcohol and beer, versus beer alone.

Q: Is there a typical Blood-Alcohol Concentration (BAC) at which a blackout is likely to occur?

A: Blackout BAC’s are individual dependent, but we know the blood-alcohol level is typically very high (above 0.25) when a blackout occurs. Some recent studies indicate .28 to .30 as the median BAC at which blackout is likely to occur. Still, a person can experience a fragmentary blackout with a BAC as low as .08 and an en bloc blackout with a BAC of.14 and above. These can only be used as estimates.

Q: Is intoxication level synonymous with blackouts?

A: No. Intoxication depends not only on the blood alcohol level, but on the rate of increase and tolerance of the individual. One may have a blackout without appearing grossly impaired. One may be drunk with poor judgment and control but not blackout. This is why even eye-witnesses may be (and usually are) unaware that a person is having a blackout.

Q: Are there any known risk factors for blackouts?

A: Yes. The following are risk factors typically associated with alcohol blackouts:

  • Drinking on an empty stomach as there is less food to absorb alcohol
  • History of serious head injury
  • Heavy drinker – but to be sure – a blackout can happen with a single drinking episode and naïve drinkers are not immune
  • History of prior alcohol blackouts – past history of blackouts shows the person is vulnerable ad also can produce damage that predisposes the person to future blackouts
  • Genetic predisposition
  • Alcohol in combination with certain common drugs
  • Female

Q: Why are females more vulnerable to memory impairment when drinking?

A: Several reasons.

  • Females typically weigh less.
  • They also have less water in their bodies, which means that they cannot dilute the alcohol as well, which can result in a higher alcohol levels in the brain.
  • Females are more likely to skip meals to save calories when they drink which means there is less food in the stomach to help absorb alcohol.
  • Females are more likely to drink beverages that are higher in alcohol concentration such as wine and mixed drinks rather than beer.
  • Females have less of an enzyme in the gut that breaks down alcohol before it gets into the body. In fact, studies have shown that it takes much less alcohol for women to experience blackouts than for men.

Q: What does research indicate is the prevalence rate of blackouts?

A: Research shows that 50% of college-age drinkers experience blackouts. Further, one in four college students who drink will experience a blackout in a given year. Although blackouts commonly occur with alcoholics, blackouts also occur in 25% of social drinkers.

Q: How can we know if a blackout is real or feigned?

A: It is hard to know. However, we can look at the known risk factors I previously discussed to determine whether the person was at a legitimate risk of experiencing a blackout.

Q: How does a drinker usually know if they passed out or experienced a blackout?

A: The short answer is they often do not know – and they especially do not know for sure given holes in their memory. Passout or blackout experiences are deduced from the circumstances in which the drinker finds themselves once they rouse, or from the information they are provided by others, or a combination of both. Loosing time through passout or a blackout can be very disturbing to an individual.

Once they wake, begin to sober, or are confronted by information from their surroundings or facts alleged by others; the drinker does what we all do all the time – they try to make sense of their situation by filling in the blanks with what seems logical to them. Their efforts may lead them to inaccurate assumptions and conclusions. This can be particularly true when the drinker has personal (i.e., religious, moral, employment) reasons for being distressed by behaviors such as those involving sexual activity.

Q: Can you explain how you would distinguish between a blackout and a pass out?

A: The fact patterns must be considered. If a person is so intoxicated that they are rendered unconscious, it should take significant time to return to normal cognitive and motor functioning. On the other hand, if a drinker was able to get up, communicate generally coherently, engage in physical movement, but later could not recall doing so, a blackout is much more likely.

Q: In a sexual assault allegation, why is it significant that the complainant might have been in a blackout rather than passed out?

A: Many who have experienced a blackout presume they physically and mentally could not have initiated or participated in sexual activity since they have no memory of doing so and may conceptualize themselves as someone who would never engage in sex in that situation or perhaps even with that person. Moreover, the notion they may have engaged in sex may bring them great cognitive dissonance and angst. As such, they may jump to the conclusion that they were passed out which by definition (unconscious) would mean they could not have participated. In reality, those who are in a blackout can, and do, engage in very complex behaviors including initiating and participating in sexual activity they simply will not recall because the memory traces were not encoded. To be sure, a person in a blackout can continue to perform any number of complex behaviors including driving, making purchases, arguing, criminal activity, and importantly – initiating and engaging in sexual activity – making it sometimes vital for fact finders to understand the psychological science related to blackouts.

Q: Thank you for your time, Dr. Goodness. If someone wanted to retain you to review a sexual assault case, how would they go about doing that?

A: They can either email me at kelly.goodness@drgoodness.com or contact my office at (817) 379-4663 and we can go from there.
______________________

As you can see, alcohol can have a significant impact not only in the decisions that a person makes, but also in the way they remember those decisions. In the sexual assault context, this is particularly important because a complaining witness may engage in (and perhaps even initiate) sexual behavior and not remember what he or she did. Without a memory of the night’s events, the complaining witness might mistakenly believe that they were “passed out” when the sexual behavior occurred and that they were taken advantage of by an opportunistic assailant, when in all reality, they were an active and willing participant. Based on their words and actions, others around them, including their sexual partner, would have no idea that the person was experiencing an en bloc or fragmentary blackout.

Thank you to Dr. Kelly Goodness for her time an expertise in preparing this article. Dr. Goodness’s contact information is provided below:

Kelly R. Goodness, Ph.D
Clinical and Forensic Psychology
121 Olive Street
Keller, Texas 76248
www.drgoodness.com
Office: (817) 379-4663

________________

Brandon Barnett is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. He earned his J.D. from Texas Tech University School of Law and his LL.M. from George Washington University Law School. He is also a military judge in the Marine Corps Reserve and an adjunct professor at Texas A&M University Law School. He can be reached at barnett@bhwlawfirm.com.

Kelly Goodness, Ph.D. began her career as a clinical psychologist at the maximum security forensic hospital in Vernon, Texas. She entered private practice after learning lessons that could never be taught in a book and achieving recognition for her ability to identify and treat the factors that led individuals to be labeled the most dangerous and violent psychiatric patients in Texas. Dr. Goodness developed a thriving practice as a criminal litigation consultant and expert witness who feels privileged to offer her expertise in jury selection, case theory, expert testimony, and case presentation to the parties in state, federal and military cases worldwide with a special focus on homicide and sexual assault.

Juvenile Sex Offender Registration Texas

Juvenile Sex Offender Registration in Texas

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Juvenile Sex Offender Registration TexasIn Texas, the law governing sex offender registration contains several provisions that apply specifically to juveniles. This means that sex offender registration works differently in juvenile cases than it does in adult cases. This article will highlight how sex offender registration works in the Texas juvenile justice system and why this is an appropriate approach to take in these cases. This article will not discuss exemptions to the sex offender registration law for certain young adult offenders.

Sex Offender Registration in Juvenile Cases

The two biggest differences between sex offender registration in adult and juvenile cases involves how long the duty to register lasts and exemptions or deferrals for certain juvenile cases.

Expiration of the Duty to Register

Sex offender registration in Texas is contained in Chapter 62 of the Texas Code of Criminal Procedure. Under Section 62.101, the duty to register in adult cases is for life. However, in juvenile cases, the duty to register ends ten years after the end of the sentence. This ten-year provision also applies to juvenile cases that are certified and transferred to adult court.

Exemptions for Certain Juvenile Cases

According to Section 62.351 of the Code of Criminal Procedure, either during or after the dispositional hearing in a case in which a juvenile has been adjudicated for a registrable offense, the court can hold a hearing to determine whether the interests of the public require this particular juvenile to register under Chapter 62. This hearing will only be held if, prior to the hearing, the attorney for the juvenile has filed a motion asking the court to consider exempting him from the registration requirements.

During this hearing, which does not involve a jury, the juvenile must prove by a preponderance of the evidence that the protection of the public would not be increased by the registration or that any increase in the protection of the public is clearly outweighed by the anticipated substantial harm to the juvenile and his family caused by registration. After the hearing, the court, under Section 62.352, can make one of several rulings. If the court determines that the juvenile has met his burden of proof, the court must exempt the child from the duty to register. If the juvenile has not met his burden, the judge can either make the child register, make the registration nonpublic, or defer the decision on registration until after the juvenile has completed treatment.

Deferral of the Registration Requirement Certain Juvenile Cases

If the court decides to defer the registration, the juvenile is not required to register during the deferral period. This deferral will automatically turn into an exemption if the juvenile successfully completes treatment, unless the prosecuting attorney files a motion requesting a hearing to reconsider the issue of registration.

Other Scenarios

Under Sections 62.353 and 62.354, juveniles who are already registering under Chapter 62, or those who are required to register due to an out-of-state adjudication, may also petition the court to have their registration either deferred or waived. These provisions require a hearing similar to that discussed above with exemptions.

Tarrant County’s Approach to Juvenile Sex Offender Registration

No one can guarantee a particular outcome in a specific case. Every case, and every set of facts, is different and unique. However, many times, in Tarrant County, if a motion is filed by the juvenile’s attorney, the court will consider deferring the registration requirement until the end of probation to see if the juvenile can successfully complete treatment.

Other States’ Approaches to Juvenile Sex Offender Registration

It is important to note that not all states have a provision for exempting or deferring a juvenile’s sex offender registration requirements. This means that if a child is adjudicated of a sex offense requiring registration in Texas and then moves out of state, he may be required to register under the new state’s laws.

Why is This an Appropriate Approach to Juvenile Sex Offender Registration?

At first blush, exempting juveniles from registering after they have been adjudicated of a sex offense seems wrong. However, it is important to remember that sex offender registration is a far-reaching consequence that can have profound effects on the life of the person subject to registration. These effects can be even more profound when the person who must register is an 11 or 12-year-old child. It is also important to note that research has shown repeatedly that juveniles who successfully complete treatment are less likely to reoffend than adults. Many juveniles who commit sexual offenses are not pedophiles, but instead, are curious, experimenting, or have not yet developed an acceptable level of impulse control.

While these behaviors are wrong, serious, and need to be addressed, sex offender registration is not the appropriate vehicle to do that. By allowing the exemption or deferral of registration in juvenile cases, Chapter 62 allows judges to evaluate each of these very different cases on their merits and apply the law in the most appropriate way for that case. It also allows juveniles to have a chance at rehabilitation before imposing drastic and long-lasting consequences on them that may devastate their lives before they ever really begin.

Conclusion

Sex offender registration is applied differently in adult cases than it is in juvenile cases. This is due to a few provisions in the law that apply specifically to juveniles. The biggest difference in the two systems is that, in juvenile cases, the judge has discretion over the issue of registration. The court can, if it chooses, defer that registration to see how the juvenile does in treatment. This allows courts to tailor a disposition and consequences to better suit a particular juvenile’s situation while still providing for the protection of the public.

This article is not intended to provide legal advice about any particular case. It is only intended to be a general overview of the sex offender registration law in juvenile cases. For legal advice, please consult an attorney about your case.

sexting laws texas

When Is “Sexting” a Crime in Texas?

By | Sex Crimes | No Comments

sexting laws texas“Sexting” has become a very popular activity amongst teenagers and young adults in the last several years. This generation sees it as just another ordinary part of life with cell phones. For parents, prosecutors, and law enforcement officers, however, sexting is a dangerous habit that has wide-ranging effects. While sexting has the potential to severely damage lives and reputations, the very nature of it makes it difficult for authorities to adequately address the problems it causes. This article will explore what sexting is, how common it is, the applicable laws, and the practical implications of applying those laws to common instances of sexting.

What Is Sexting?

Sexting is derived from the words “sex” and “texting.” It means the sending of nude or sexually explicit photos or sexually suggestive text messages by text, email, or instant messenger using a mobile device. Many times, the person depicted in the photographs has either consented to the photo being taken or has taken the pictures of themselves. Typically, the person in the photograph, either on their own initiative or at the request of another, takes the photo and then voluntarily sends it to a significant other or a person they are attracted to. The intent is generally for the picture to be kept private by the initial recipient.

The problem with sexting arises when the photograph is either posted on the internet, usually through a social media platform, or is shared with others through text or email. In many cases, this posting or sharing is not consented to by the person depicted in the picture.

How Common is Sexting?

A study done by Drexel University in 2015 found that over 80% of adults surveyed admitted to sexting within the last year. The study was presented during the American Psychological Association’s 2015 convention. According to GuardChild.com, 20% of all teenagers have sent or posted nude or semi-nude photos or videos of themselves and 39% of teenagers have sent sexually suggestive messages through either email, text, or instant messaging.

Criminal Laws Applicable to Texting in Texas

In the State of Texas, there are several laws which could be used to prosecute instances of sexting, especially if it involves a minor. These laws can range from a Class C misdemeanor to a first-degree felony.

Unlawful Disclosure or Promotion of Intimate Visual Material

Texas law makes it unlawful for a person to intentionally disclose photographs or videos of a person engaged in sexual conduct or with their intimate parts exposed without the consent of the person depicted if the person in the photo/video had a reasonable expectation that the material would remain private, the person depicted is harmed and the identity of the person in the photo/video is revealed through the disclosure. This is a Class A misdemeanor.

Sale, Distribution, or Display of Harmful Material to a Minor

A person who sells, distributes, or shows “harmful material” to a minor, knowing that the material is harmful and the person is a minor, or displays harmful material and is reckless about whether a minor is present who would be offended is guilty of this offense in Texas. This is a Class A misdemeanor unless the person uses a minor to commit the offense, and then it is a third-degree felony.

Sexual Performance by a Child

The offense of sexual performance of a child is committed when a person employs, authorizes, or induces a child under the age of 18 to engage in sexual conduct. In this context, “sexual conduct” includes the lewd exhibition of the genitals, anus or breast. This offense is a third-degree felony, but if the victim was under the age of 14 at the time of the offense, then it is enhanced to a second-degree felony.

Possession or Promotion of Child Pornography

A person commits the offense of possession or promotion of child pornography if he intentionally or knowingly promotes or possesses with the intent to promote material that depicts a child engaged in sexual conduct knowing that the material depicts a child. This is a third-degree felony, but it can be enhanced to a second or first-degree felony.

The Sexting Law – Electronic Transmission of Certain Visual Material Depicting Minor

This is Texas’ “sexting” statute. Under it, a person under the age of 18 commits an offense if he intentionally or knowingly possesses or promotes to another minor visual material that depicts a minor engaged in sexual conduct by electronic means if he produced the material or knows that another minor produced it. This is a Class C misdemeanor, but it can be enhanced to either a Class B or Class A misdemeanor in certain situations.

Practical Implications

An instance of sexting in Texas can be prosecuted under any of the above laws. However, there are problems with each of these statutes that makes it difficult to prosecute sexting cases under them. These problems are what led the Texas legislature to create the sexting law several years ago.

Problems with the Sexting Law

However, there are two major problems with this law. First, the sexting statute only applies to persons under the age of 18. This means that an 18-year-old high school student who shares sexting photos with others in his high school cannot be prosecuted under this law. The second problem with it is that it creates a defense to prosecution if the person in possession of the visual material destroys it. So, the law that makes sexting illegal also allows those who break the law to get away with it by destroying the evidence. Because of these problems, it is almost impossible to prosecute someone under this law.

Problems with Using the Other Laws to Prosecute Sexting

The main issue with using the other laws laid out above to prosecute sexting cases is that they were not created to address this specific behavior. So, it becomes a situation where prosecutors are having to shove a square peg into a round hole to make it work in many cases. For instance, the Unlawful Disclosure or Promotion of Intimate Visual Material law requires that the person in the pictures had a reasonable expectation that the photos would remain private. GuardChild.com found in their compilation of sexting statistics that 44% of teenagers believe it is common for sexually suggestive text messages to be shared with others, and 35-40% of them feel that it is common for nude or semi-nude photos to be shared with others beyond the intended recipient. These beliefs undermine the “reasonable expectation of privacy” prong of the law.

Similarly, the Possession or Promotion of Child Pornography statute is problematic when used in sexting cases because it does not include any protections from prosecution for the victim. This means that when a teen age girl takes a nude photo of herself and sends it to her boyfriend, who then shares it with other students, the girl who took the photo of herself is as guilty of promotion of child pornography as the boy who shared it with others. Most people would agree that the victim shouldn’t face charges for child pornography. Yet, prosecutors must either prosecute both of them or do nothing.

Sex Offender Registration for a Sexting Conviction

Another major practical ramification of sexting is that if a person is convicted or adjudicated for sexting under the possession or promotion of child pornography law, he will be required to register as a sex offender for life if the person is prosecuted in the adult system or for ten years past the end of his sentence if he is adjudicated as a juvenile. Depending on the facts of the case, this can be a very harsh consequence for a behavior that is so common in this modern world we live in. But it is important for anyone who engages in sexting, and their parents, to realize that sex offender registration for life is a very real possibility if prosecuted.

Conclusion

While many parents may not know that sexting even exists, the fact remains that it is much more common than we would like to think. It can have devastating consequences for the person depicted in the photos, and for anyone who shares or possesses these photos. Many teenagers engage in this behavior without realizing what the ramifications can be.

This is one area where the law hasn’t caught up to technology yet. So, the job of protecting our children from the harms associated with sexting still falls primarily to parents. It is important for parents to educate themselves about the practice and then talk to their teenagers and pre-teens about the dangers of sexting.

 

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Sexsomnia Sleep Sex

“Sexsomnia” or “Sleep Sex” May Be a Defense to Sex Crime Allegations

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Is Sleep Sex a Real Thing and How Can it Apply to Sexual Allegations?

Sexsomnia Sleep SexYou may have heard of sleepwalking, or sleeptalking, but what about sleep sex? The idea of sleep sex or “sexsomnia” is typically worth a few laughs when you first hear about it, but it is a very real disorder within the parasomnia umbrella of disorders (classified by the DSM-V).  Google it (with caution, of course).  You’ll find many articles discussing real people that suffer from sexsomnia.

What is “Sexsomnia?”

Also called “sleep sex,” sexsomnia is a type of parasomnia, where the brain is caught in transition between sleeping and waking states. As with other parasomnias — including sleepwalking, sleep talking, and, sleep driving — someone who is sleep sexing can seem fully awake and aware, even as he or she is masturbating, or fondling, initiating intercourse with, or even sexually assaulting a bed partner. But he or she truly is asleep.

See Web MD.  There have been several sleep studies and scholarly articles on sleep sex as experts learn more about sexsomnia.

How Does Sleep Sex Apply to a Sex Crime Allegation?

As you can imagine, some criminal defense attorneys have used sexsomnia as a defense to sexual assault allegations. Prosecutors are even being trained on how to overcome the sleep sex defense. But sexsomnia does not apply to every case. The factual allegations often do not support sexsomnia as a viable defense to sexual crimes cases.  But sometimes they do.  An article published in the Journal of Clinical Sleep Medicine in 2014 explored 9 criminal cases in which sexsomnia was used as a defense to sexual allegations.  The jury found the defendant not guilty in 7 of the 9 cases.

To establish a viable sexsomnia defense, the defense should be prepared to present witnesses that can establish a pattern of unusual sleep behaviors for the accused.  Further, the defense should look for other things that are known “triggers” for sleep sex, like alcohol use, sleep deprivation, emotional stress, and certain medications. This is a starting point to consider pursuing such a defense and should be coupled with all other typical defense investigatory avenues.

While a sexsomnia defense may cause the jury to chuckle as they think about a person having sex while the person is asleep, it can carry the day if the facts support the defense.  It should not be used as a gimmick.  With the right experts and the right witnesses, a sleep sex defense might just be the truth that sets a person free.

Pretext Phone Calls Texas

Pretext Phone Calls in Sexual Assault Investigations

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Pretext Phone Calls TexasDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault cases, especially where the victim knows the suspect, recorded phone calls between the victim and the suspect are often used in the investigation of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Texas Sex Offender Registration

Which Crimes Require Sex Offender Registration in Texas?

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Texas Sex Offender RegistrationIt’s no secret that there are certain offenses that require individuals to register themselves on the sex offender registry. However, what are those offenses? How long is a person required to register?

What Offenses Require Sex Offender Registration in Texas?

In Texas there are over 20 offenses that require registration as a sex offender. Additionally, registration could be required as a condition of parole, release to mandatory supervision, or community supervision. Further, even if a person was convicted for a crime outside of Texas you might be required to register as a sex offender if the elements of that offense are substantially similar to an offense under Texas law that requires registration.

Under the Texas Code of Criminal Procedure these are called “reportable convictions or adjudications.” Article 62.001(5) of the Code defines these to be a conviction or adjudication, which includes deferred adjudication, that is based on various offenses outlined in the section.

How Long Does a Person’s Duty to Register as a Sex Offender Last?

Many of the offenses requiring registration as a sex offender have a lifetime registration requirement but some have a “10-year” requirement. The 10-year requirement depends not only on the alleged offense but also on how the case is disposed. If the duty was based on an adjudication of delinquent conduct (defined by Tex. Fam. Code §51.03) then the duty to register ends on the 10th anniversary of the date on which the disposition was made or the date of completion of the terms of the disposition, whichever is later. If the duty is based on a conviction or deferred adjudication, then the duty to register ends on the 10th anniversary of the date the person is released from a penal institution, or is discharged from community supervision, or the court dismisses the criminal proceedings, whichever date is later.

Additionally, there is a 10-year requirement for persons, who would otherwise be subject to lifetime registration requirements, who were a juvenile at the time and their case was transferred to a criminal district court pursuant to Section 54.02 of the Texas Family Code. Tex. Code Crim. Proc. Art. 62.101(b). Under this requirement the duty to register ends 10th anniversary of the date the person is released from a penal institution, completed probation, or the date the court dismisses the charges against them, whichever date is later. Id.

Below is a chart that lists offenses requiring registration and the applicable time period the law requires a person to register.

Sex Offender Registration Requirements in Texas

LENGTH OF REGISTRATION SEXUAL OFFENSES

Lifetime Registration

See Tex. Code of Crim. Proc. Art. 62.101(a), 62.001(5), (6)

  • Continuous sexual abuse of a young child or children. TPC 21.02
  • Indecency with a young child under. TPC 21.11(a)(1)
  • Sexual assault. TPC 22.011
  • Aggravated sexual assault. TPC 22.021
  • Aggravated kidnapping under TPC 20.02(a)(4) with intent to violate or abuse the victim sexually
  • Burglary under TPC 30.02(d) if offense was committed with the intent to commit one of the above listed felonies
  • Sexual performance by a child. TPC 43.25
  • An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense’s elements are substantially similar to the above felonies.
  • Trafficking of a person under TPC 20A.02(a)(3), (4), (7), or (8)
  • Prohibited sexual conduct. TPC 25.02
  • Compelling prostitution under 43.05(a)(2)
  • Possession or promotion of child porn. TPC 43.26
  • Indecency with a young child under TPC 21.11(a)(2) if the person received another conviction or adjudication that requires registration
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was an affirmative finding that the victim or intended victim was younger than 17 and the person receives or has received another conviction or adjudication that requires registration. TPC 20.02, 20.03, 20.04
  • Obscenity under TPC 43.23(h)

10-Year Registration

 

See Tex. Code of Crim. Proc. Art. 62.101(c), 62.001(5)

  • Indecency with a young child in a manner not listed under lifetime registration. TPC 21.11
  • Unlawful restraint, Kidnapping, or Aggravated kidnapping if there was a finding that the victim or intended victim was younger than 17. TPC 20.02, 20.03, 20.04
  • An attempt, conspiracy, or solicitation to commit one of the above listed offenses in this chart
  • Online solicitation of a minor. TPC 33.021
  • Prostitution under TPC 43.02(c)(3)
  • Second indecent exposure under TPC 21.08 or an offense with substantially similar elements under the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice but not if the second resulted in deferred adjudication.
  • An offense of the laws of another state, federal law, the laws of a foreign country or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of the offenses described above, but not if the offense resulted in deferred adjudication.

What Exactly Does the Duty to Register Require?

A person required to register must register with the municipality or county where they reside or intent to reside for more than seven days. Among other things the registration must contain the type of offense the person was convicted of, the age of the victim, and a recent color photograph of the person. Tex. Code Crim. Proc. Art. 62.051. If the person spends more than 48 hours in a different municipality or county three or more times in a month they must provide the local authority with certain information. Art. 62.059. In addition to registering, the person must comply with a request for a specimen of their DNA. Tex. Code Crim. Proc. Art. 62.061; Government Code §411.1473. Also, if the Department of Public Safety has assigned a person a numeric risk level of 3, public notice must be given of where that person intends to live. Art. 62.056. Further, there are restrictions on type of employment for certain registrants. Art. 62.063.*

As you can see there are many consequences that come with a conviction, deferred adjudication or adjudication for delinquent conduct for one of the above listed offenses and there are additional requirements that could be imposed depending on the particular alleged offense. These very specific requirements provided under the Texas Code of Criminal Procedure must be followed so that a person does not violate the registration requirements and face additional criminal consequences ranging from a state jail felony to a first degree felony. Art. 62.102. If it has been alleged that you committed one of these offenses, it can be extremely overwhelming but also important to understand what lies ahead for you. Contact our criminal defense attorneys today to ensure that you fully comprehend what is being alleged, what consequences could be attached, and what your options are in your specific situation. Additionally, contact us if you are currently required to register and have questions about what duties are required of you.

*Note this blog does not provide all requirements and additional requirements for certain offenses. To find all requirements see Article 62 of the Texas Code of Criminal Procedure.