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Resisting Arrest Unlawful Arrest Texas

May a Person Resist an Unlawful Arrest in Texas?

By | Criminal Defense

Resisting Arrest: How is it defined under Texas law?

Resisting Arrest Unlawful Arrest TexasIn general, resisting arrest occurs when a person attempts to interfere with a peace officer’s duties. Section 38.03 of the Texas Penal Code defines resisting arrest as: a person who intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from:

  • Effectuating an arrest;
  • Carrying out a search; or
  • Transporting a person accused of a crime.

Resisting arrest requires the person to have used force against the arrest, but it does not require the officer to be acting lawfully in making the arrest. To be guilty of resisting arrest, the force need not only be directed at or toward the officer but is also met with any force exerted in opposition to, but away from the officer, such as a simple pulling away. Thus, even small uses of force can give rise to a charge of resisting arrest. However, non-threatening statements of disagreement with the officer’s actions usually are not enough to qualify as resisting arrest.

Some examples of resisting arrest include:

  • Preventing a cop from handcuffing you;
  • Struggling against an officer who is trying to arrest you; and
  • Engaging in violent action against the officer, like punching, kicking or inflicting harm with a weapon

Can You Resist an Unlawful Arrest in Texas?

One of the most important cases on this point is Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

What Ford provides, in short, is that you may not resist an arrest—whether lawful or unlawful. Historically, American citizens were legally entitled to use reasonable force to resist an unlawful arrest. Several states have now eliminated – either by statute or by judicial decision – the common law right to resist an unlawful arrest. Section 38.03 of the Texas Penal Code eliminated this right. Furthermore, subsection (b) of Section 38.03 specifically states it is no defense to prosecution that the arrest or search was unlawful.

In Ford, the Court held “the elimination of the common law right to resist arrest reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned.” The Court reasoned that the line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts. Furthermore, the Court has concluded that by limiting the common law right to resist an unlawful arrest, the Legislature has not limited the remedies available to the person arrested, and thus, there is not a violation of the person’s constitutional rights.

Potential Consequences

Regardless of whether a person is guilty of the underlying charge that prompted the attempted apprehension, resisting arrest is a serious charge in Texas (many time more serious than the underlying offense). A person can face a significant fine and jail time.

Typically, resisting arrest, search, or transportation is prosecuted as a Class A Misdemeanor. An individual convicted of a Class A Misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000.

However, the charge may be enhanced to a felony of the 3rd degree if you use a deadly weapon, such as a gun or a knife, to resist the arrest or search. An individual convicted of a felony of the 3rd degree may be sentenced to 2-10 years in the Texas Department of Corrections and a fine up to $10,000.

Our advice is to comply with the officer’s demands calmly and politely and let us work out the legality of the arrest later.

Time Requirements for Juvenile Certification Texas

On the Clock: Time Limits to Try a Juvenile as an Adult

By | Juvenile

Time Requirements on the State’s Power to Certify a Juvenile as an Adult

Time Requirements for Juvenile Certification TexasTexas Family Code Section 54.02 gives the juvenile court the power to transfer its exclusive jurisdiction over a juvenile case to a district court. This transfer of jurisdiction allows the State to treat a juvenile as an adult for purposes of prosecution. Section 54.02 actually lays out two different processes for transferring juvenile cases to adult court. The first process is used in cases where the juvenile is under the age of 18 at the time of certification. The second, which is laid out in Section 54.02(j), is for those cases in which a person has turned 18 prior to the filing of the case in juvenile court. The Texas Court of Criminal Appeals recently upheld the time requirements placed on the power of the State to pursue post-18 certifications in Moore v. State (Case Opinion – 2017).

Section 54.02(j)’s Time Limits

Section 54.02(j) allows a juvenile court to transfer its jurisdiction to an appropriate district court for criminal proceedings if the person accused is 18 years of age or older at the time the petition is filed but was a juvenile at the time the offense was committed. During the transfer hearing, the State must prove by a preponderance of the evidence that “for a reason beyond the control of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person or after due diligence of the State, it was not practicable to proceed in juvenile court before the 18th birthday of the person because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the 18th birthday of the person or the person could not be found.”

This section of the Family Code imposes on the prosecutors a duty to pursue cases in juvenile court whenever possible. In order to retain the power to prosecute cases after a person has aged out of the juvenile system, the State must show that the delay in prosecution was beyond its control. If it is unable to prove this, then the only choice available for a juvenile court in these situations is to dismiss the case.

The Issue in Moore v. State

In Moore, the accused was charged with Aggravated Sexual Assault of a Child. He was alleged to have committed the offense when he was 16 years of age. Due to a heavy caseload and an error in one of the police reports, the detective did not send the case to the District Attorney’s Office until after Moore had turned 18. The prosecutor filed a certification petition in the case over a year later when Moore was 19 years old. The juvenile court transferred the case to district court.

Moore pled in adult court and received 5 years’ probation on a deferred adjudication. He then appealed the case claiming that the juvenile court lacked the jurisdiction to transfer the case because the State did not prove that the delay in filing the case was beyond its control. The State first claimed that law enforcement should not be considered “the State” under Section 54.02(j). The State then argued that the court should consider whether the reasons for the delay were unconstitutional. According to this argument, if the reasons for the delay were not in violation of Moore’s constitutional rights, then the State should be allowed to proceed with the certification regardless of who was to blame for the postponement in filing charges.

The Court’s Ruling

After considering the arguments of both sides, the ruling of the Court of Appeals, and the case law presented by the parties, the Court of Criminal Appeals ruled on the case. First, the Court held that the term “the State” includes law enforcement and prosecutors collectively. The Court pointed out that the law consistently includes law enforcement in its use of this term.

The Court then dismissed the State’s notion that the requirements of Section 54.02(j) be treated like a claim of speedy trial, due process, or statute of limitations. The Court explained that the reason for the requirements in Section 54.02(j) is to limit the power of the State to prosecute a person as an adult for something that happened when he was a juvenile. In order for an exception to be made to this general rule, the State must prove that it was not at fault for the delay in prosecution.

Conclusion

The Court of Criminal Appeals’ decision in Moore is consistent with the Texas Supreme Court’s rulings in other cases involving juvenile certifications. The courts are clear that juvenile cases should be handled in juvenile court when possible. This means that detectives and prosecutors working juvenile cases must be diligent in giving these cases the proper priority so that an accused juvenile does not age out of the system before his case can be heard by the juvenile court. In any case in which prosecution is delayed until after a person’s 18th birthday, the State will be required to prove that the reason for this lag time was beyond its control. And if the State is unable to meet this requirement, then the courts will prevent further prosecution in these cases.

Fire as Deadly Weapon in Arson Case

Is Fire a Deadly Weapon in an Arson Case?

By | Arson, Deadly Weapon

Defendant’s Arson Charge was Enhanced when Fire was Alleged as a “Deadly Weapon.”


Pruett v. State (2nd Court of Appeals – Fort Worth, 2016)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion here.

Fire as Deadly Weapon in Arson CaseJeffery Pruett inherited a one-third shared interest in the family home with his two siblings after the death of their elderly parents. The adult siblings had a long history of quarreling over Pruett’s living arrangements, as he moved in and out of the residence prior to the deaths of their parents. Fed up, Pruett moved into a motor home, and was often seen by the neighbors driving around the neighborhood. Meanwhile, Pruett’s siblings listed the home for sale with the intention of dividing the proceeds equally between the three siblings.

On December 19, 2012, a neighbor spotted Pruett parking his motor home in front of the residence. Pruett exited the vehicle, went into the backyard of the residence, and then got back into the vehicle and drove away. Moments later, the neighbor saw smoke coming from the back of the house. The neighbor ran to the backyard, saw flames shooting out of the residence, and called the Fort Worth fire department. Neighbors were successful in using a garden hose to extinguish a large portion of the fire. When the fire department arrived, they confirmed that there was no one inside the home and put out the remaining flames. After an investigation, the arson investigator concluded that the fire had been intentionally started with a flammable ignition source.

Pruett’s Case Goes to Trial

At trial, the fire department’s battalion chief testified that had the flames not been put out, the fire would have consumed the home. Further, the arson investigator testified that the fire was “very dangerous,” putting neighbors, fire fighters, and anyone inside the home in immediate danger of death or serious injury. Considering his use of fire to be a deadly weapon, the trial court convicted Pruett of arson, sentencing him to twenty years imprisonment. Pruett appealed to the Second Court of Appeals, arguing that the court lacked sufficient evidence to support the finding of fire as a deadly weapon. Fire as a deadly weapon carries a heavier penalty in Texas.

What does Texas Law say about fire as deadly weapon?

Fire is not considered a deadly weapon in the Texas Penal Code, however, a Court can find that fire was used as a deadly weapon if the surrounding circumstances meet a three-pronged test. Mims v. State, 335 S.W. 3d 247, 249-50. In order for fire to be deemed a deadly weapon, the evidence must prove

  1. the object meets the definition of a deadly weapon;
  2. the deadly weapon was used…during the transaction on which the felony conviction was based; and
  3. other people were put in actual danger.”

Brister v. State, 449 S.W.3d 490,494 (Tex. Crim. App. 2014).

The Second Court of Appeals Weighs In – The Court must determine whether the fire set by Pruett was capable of causing death or serious bodily injury.

Did the fire meet the statutory definition of a deadly weapon?

Under Texas law, a deadly weapon can be “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(West Supp. 2015). To determine whether the object was “capable” of causing death or serious bodily injury, such “capability” must be evaluated based on what actually happened, not conjecture about what might have happened if the facts had been different than they were.” Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997).

Here, the Court says the neighbor had put out most of the fire with the garden hose by the time the fire department arrived on the scene. Further, the neighbor who called the fire department was not placed in danger. Even though the arson investigator testified that the firefighters were placed in danger, such danger is part of the job. Since there was no one else in the home at the time of the fire, there is no evidence that the firefighters were put in actual danger of death or seriously bodily injury. The Court concludes, “the facts—viewed…in light of what did happen [not what could have happened]—do not support [fire as a deadly weapon] in this case.” The Second Court of Appeals orders the deadly weapons finding to be deleted from Pruett’s judgment.

CASE UPDATE (1/25/17) – CCA Reverses the COA Decision

In reversing the Court of Appeals, the CCA held:

“An arsonist is not the same as an intoxicated driver, and the degree of danger and harm that each offender is capable of causing is materially different. In the case at bar, the deadly nature of the fire is not difficult to appreciate. Fire is inherently dangerous in a way that cars are not and it is capable of inflicting serious bodily harm, especially when it is intentionally started in a residential neighborhood. This fire was dangerous because it was left unattended and because appellant used an accelerant. As a result, the fire endangered not only the lives of the firefighters who responded to the call but also the lives of neighbors who could have been killed or seriously injured if the fire continued to spread. The fire also posed a danger from both the heat effects and the emissions of toxic chemicals. In this case, the State adequately demonstrated that the fire that appellant started was capable of causing death or serious bodily injury…When evidence at trial demonstrates that someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly-weapon finding may appropriately attach to the arson conviction when the fire is capable of causing death or serious bodily injury. That is what happened in this case. “

Juvenile Probation Tarrant County

An Introduction to Juvenile Probation in Tarrant County

By | Juvenile

Juvenile Probation Tarrant CountyMany people have the perception that the juvenile system is simply a slap on the wrist for kids, regardless of the offense. The reason for this belief is the fact that most kids in the juvenile system get probation. But, probation is not always that simple or easy. This is an introduction to juvenile probation in Tarrant County. This article will cover the reasons behind the tendency towards probation, the length and parameters of probation and what it can include.

The Reasons Behind a Probation Heavy System

According to Section 51.01 of the Texas Family Code, the purposes of the juvenile justice system are to protect the public, promote the concept of punishment for criminal acts, to remove the taint of criminality from children, and to provide treatment, training, and rehabilitation that emphasizes accountability for the parent and child for the child’s conduct. This section goes on to state that a child should be removed from his parents only when it is necessary for the welfare of the child or the interest of the public safety. Section 51.01 forms the foundation for which the entire juvenile justice system is based on.
Because of this mandate in Section 51.01 that children should only be removed when necessary, probation with the child remaining in the home is the primary mode of punishment and rehabilitation used by the Tarrant County Juvenile Services Department. The system is not geared towards ripping a kid away from his family, but is built to address and correct the behavior by working with the child and the family together.

The Length and Parameters of Juvenile Probation

In the adult system, a person is only eligible for probation on their first felony offense. In the juvenile system, however, probation is the preferred outcome on cases due to the Family Code’s preference for keeping children in the care of their parents. Under the provisions of the Family Code, a juvenile is eligible for probation on any offense, up to and including murder. For misdemeanor offenses, probation is the only option available.

The maximum length of probation, regardless of offense, is generally up to a child’s 18th birthday. In circumstances involving the most serious offenses or habitual offenders, the prosecutor may seek a determinate sentence which extends the possible punishment. On determinate sentence cases, probation can last for a maximum of ten years. In Tarrant County, prosecutors generally only seek determinate sentences in the most serious of cases.

What Juvenile Probation Can Include

Juvenile probation in Tarrant County can include a wide variety of conditions and requirements, depending on the case and the unique needs of the child and family. Some of the more common conditions of probation are discussed here.

Downtown Fort Worth Atelier Building

BHW Completes Full Renovation of Fort Worth’s Historic Atelier Building

By | Criminal Defense

Downtown Fort Worth Atelier BuildingBarnett Howard & Williams PLLC recently completed a full renovation of the historic Atelier Building (1905) in downtown Fort Worth. The Atelier Building is one of the oldest buildings in downtown Fort Worth, Texas that stills stands today. Built in 1905, the Atelier Building housed several different businesses over its 112-year history, including architects, banks, and a restaurant at one time. Located on 8th street between Houston and Throckmorton, the Atelier Building is marked by its dual terra-cotta fireplaces and marble facade.

The Atelier Building was last renovated in 1980 when architect Cameron Alread purchased the building. The building housed Mr. Alread’s architect firm for 36 years, until he sold the building to the law firm of Barnett Howard & Williams PLLC. Over the last six months, the law firm completely renovated the building from floor to ceiling. “One of our goals in this renovation was to bring out the history of the building,” said owner Luke Williams. If you take a look inside the building you will see exactly what he means. Plaster walls were removed to expose the original brick on the walls – bricks that have been around longer than most building in downtown. The foyer is graced by an enlarged photograph that was taken outside the building sometime during the 1930’s, back when 8th street was a brick road.

Office manager, Sue Holdridge has noticed a warm reception from the people of downtown. “Folks on the sidewalk continue to stop by and tell us how much they have enjoyed watching the transformation of the building and how much character it brings to this block of downtown.”

Barnett Howard & Williams PLLC moved its practice to Fort Worth in 2013, and maintained an office in Sundance Square until December 2016, when the Atelier Building renovation was complete. The firm gives all the credit for the renovation to Eric Hill at Hill Design & Build in Keller. He was the primary designer and architect for the project.

Juvenile Sex Offender Registration Texas

Juvenile Sex Offender Registration in Texas

By | Juvenile, Sex Crimes

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

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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Juvenile Trial Adult Trial Texas

Key Differences Between Juvenile and Adult Criminal Trials in Texas

By | Criminal Defense, Juvenile

Juvenile Trial Adult Trial TexasThe juvenile justice system is a hybrid system. Juvenile proceedings are technically civil in nature, but they incorporate many elements from the criminal system. The reason for this separate system is to teach children that they will be held responsible for their actions without labeling them as criminals. The differences between adult and juvenile trials is a direct result of this difference in systems.

Terminology

One of the most noticeable distinctions between adult and juvenile trials is in terminology. Juveniles accused of crimes are called respondents, not defendants. Juries do not decide whether a respondent is guilty. Instead, they decide whether it is true or not true that he engaged in delinquent conduct.

Participants

In Tarrant County, the participants that you will see sitting in the courtroom during a juvenile trial are not the same as in an adult case. In addition to the judge, prosecutor, defense attorney, juvenile, court reporter, and jury, there are a couple other participants in juvenile cases. A parent or guardian of the respondent is required to be present during all proceedings. The Tarrant County juvenile judge also requires an intake probation officer to be present anytime the juvenile is in court.

Procedures

For the most part, the procedures in an adult trial and a juvenile trial in Tarrant County are similar. The same rules of evidence apply. A juvenile respondent has the same rights during a trial as an adult defendant has. The trials in the two systems follow the same general order, as well.

There are a few significant differences, however. First, and probably most important, is the contrast in who makes punishment decisions in the trials. In adult cases, a defendant can choose whether a judge or jury determines punishment. However, in juvenile cases, a respondent only has this choice in determinate sentence cases. In all other cases, a judge will determine the punishment, if any.

Another difference is the judge’s charge to the jury. The jury charge in a juvenile case is a civil charge with criminal language included in it. It is typically longer than a standard criminal charge in an adult case. The jury’s verdict form is also a bit different. In adult cases, the verdict form asks the jury to write guilty or not guilty. In juvenile trials, as mentioned earlier, the jury determines true or not true that the respondent engaged in delinquent conduct.

Disposition/Punishment Phase

In adult criminal trials, if a defendant is found guilty, the case moves into the punishment phase. In juvenile cases, that next phase is called the dispositional hearing. This is another area in which a juvenile trial differs from adult trials in Tarrant County.

If the jury is assessing punishment in an adult case, it generally happens almost immediately after a verdict of guilty is returned. If the defendant chooses the judge to assess punishment, the hearing is usually scheduled for a later date.

In the juvenile justice system, most of the time, the respondent does not get to choose who determines disposition. The judge will make the vast majority of these disposition decisions. This means that the dispositional hearing will usually be held a few weeks after the trial. Unlike in adult cases, a social history report on the respondent must be prepared by the intake probation officer prior to the dispositional hearing taking place. This report will be considered by the judge in assessing the appropriate disposition.

Practical Differences

The last big discrepancy between adult and juvenile cases has to do with the practical effect that these cases have on the person accused. The juvenile system emphasizes rehabilitation instead of punishment. Therefore, juvenile dispositions do not have the same long-term ramifications that adult punishments have. Typically, they are limited in length due to the age limits imposed by the system. In Tarrant County, the juvenile judge will consider probation in each case in which it is appropriate to consider.

There are a lot of differences between adult and juvenile trials. The main reason for this is because these trials are part of two separate and distinct systems. The juvenile system is a hybrid, combining parts of the civil and criminal systems into one. While there are many similarities between the two, this article highlights the main distinctions between the two.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings.

Sexsomnia Sleep Sex

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

By | Sex Crimes

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.

Juvenile DPP Tarrant County

Deferring Prosecution for Juvenile Cases in Tarrant County

By | Juvenile

Juvenile DPP Tarrant CountyAre there any options for my child short of going to court? Many parents ask this question after finding out that their child has been referred to the juvenile system. For a lot of kids who are in trouble for the first time, there is a great option available: Deferred Prosecution Program (DPP). In Tarrant County, DPP is used quite often. This article will answer all of your questions about DPP.

What is Tarrant County’s Juvenile DPP?

DPP is a form of informal probation. The juvenile is supervised by a probation officer and has conditions of supervision to abide by during the period of DPP. But unlike formal probation, DPP does not require court action.

How long does the Juvenile Deferred Prosecution Program last?

DPP can, initially, be up to 6 months in length. Most of the time in Tarrant County, a juvenile will receive a 6-month term. Under the provisions of the Texas Family Code, DPP can be extended for an additional 6 months if necessary. However, DPP cannot last longer than 12 months total.

What types of cases are eligible for DPP in Tarrant County?

DPP can be offered in any case, regardless of the offense. Whether DPP is appropriate for a given juvenile depends more on the kid’s prior history with the legal system and the facts of the case than it does with what the offense is. However, a child has a better chance of receiving DPP in a misdemeanor or a minor felony case than for a serious felony.

At what point in the process can DPP be offered to a juvenile?

In Tarrant County, there are four points in the process where DPP can be offered to a juvenile. The first of these is by the intake probation officer during the intake process. Many times, if the case is appropriate for DPP, the probation officer will offer it during the intake appointment. This is one of many reasons why it is important for the family to attend the intake appointment with the probation officer. If DPP is accepted, then the juvenile will begin supervision and the case will not be referred to the prosecutor.

The second point where DPP can be offered is after the case is referred to the District Attorney. Once the prosecutor has reviewed the case, she can decide to offer DPP. If it is accepted at this point, the case is sent back to the juvenile probation department and supervision will begin. The prosecutor can also offer DPP after the case is filed and before it goes to court. If this happens, then the charges are dismissed and DPP supervision begins.

The last opportunity for a DPP offer is in court. In Tarrant County, this is rare, and only happens if the probation officer and prosecutor both refuse to offer DPP. At court, prior to any evidence being heard, the juvenile and his attorney can ask the judge to give DPP. The judge has discretion to grant the DPP or not.

Are charges still filed in a juvenile DPP case?

Typically, charges are not filed in a DPP case. If the DPP is agreed upon after charges have been filed, the charges are, at that point, dismissed.

What are the typical conditions of supervision?

The conditions of supervision on DPP are generally the same as for probation. These include go to school, don’t commit crimes, and obey the curfew set by the parents. In some cases, the conditions may also include appropriate counseling or restitution.

What happens if the juvenile is not successful in completing DPP?

If a juvenile who is on DPP violates the terms of his supervision, the case could be reopened and reviewed. If the original DPP was given by the probation officer, then the case will be sent to the prosecutor upon violation. At that point, the charges can be filed or the prosecutor can offer a second term of DPP. If the original DPP was given by the prosecutor, then upon violation the charges can be filed and the case can go to court. The judge can give a second term of DPP at this point if he chooses.

What happens if DPP is successful?

If the juvenile is successful on DPP, then the case is closed out with no adjudication on the juvenile’s record. The juvenile may be able to his record sealed after a period of time.

DPP is a wonderful option that is available to juveniles who have never been in trouble before or who are referred for minor offenses. It is up to 6 months of informal probation. If the child is successful on DPP, then the case will be closed and no charges will ever be filed. DPP is an alternative to going to court and being on formal probation. For many kids, this will be a great opportunity to handle their case in a very favorable manner. If DPP is offered, it is worth considering and discussing it with your attorney.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings.