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Indecency with Child Archives | Fort Worth Criminal Defense Attorneys and Personal Injury Lawyers

False Report Child Abuse Texas

Penalties for Falsely Reporting Child Abuse or Neglect in Texas

By | Child Abuse

False Report Child Abuse TexasUnder Section 261.101 of the Texas Family Code, persons are required to report if they have cause to believe that a child’s physical or mental health or welfare is being or has been adversely affected by abuse or neglect. The report is to happen immediately (or within 48 hours if the reporting person is a professional). The law further grants “immunity” to the person who reports or assists in the investigation if that person had “good faith” when they made the report.

What is a “Good Faith” Report of Child Abuse or Neglect?

Put simply, a “good faith” report is an honest and sincere report. The law wants to encourage folks to report so that the State can investigate and ensure that children are not being abused or neglected. However, falsely (or without good faith) reporting child abuse to CPS or other agencies is not to be used as an act of retaliation or aggression toward others. A false report damages the child’s welfare in itself because the child will be subjected to an investigation where none should have been pursued. Unfortunately, we have seen this occur in the context of highly contested family law cases and in some criminal cases as well. More recently, there were allegations of a false report made to smear a political opponent.

What are the Legal Penalties for Falsely Reporting Child Abuse or Neglect in Texas?

Section 261.107 provides the civil and criminal penalties associated with falsely reporting child abuse in Texas. This section provides that “a person commits an offense if, with the intent to deceive, the person knowingly makes a report…that is false.”

Criminal Penalty for False Report

Knowingly making a false report of child abuse or neglect in Texas is a State Jail Felony offense. The punishment range for this offense is 180 days to 2 years in a State Jail Facility and a fine up to $10,000. Further, if a person has been previously convicted of this same offense, a second offense is a Third Degree Felony which subjects the person to a prison term of 2 years up to 10 years.

Attorney’s Fees Reimbursement for the False Report

As a monetary penalty in connection with the criminal case, the court shall order any person that is convicted of making a false report to pay the reasonable attorney’s fees incurred by the person against whom the report was originally made.

Civil Penalty for False Report

The Family Code further provides that any person who engages in false reporting is liable to the State of Texas to pay a civil penalty of $1,000. The Texas Attorney General is responsible for bringing the action to recover the civil penalty.

What Do I Do if Someone Has Made a False Report to CPS About Me?

First of all, contact an attorney. Depending on the posture of the investigation, you may need representation and advice to help get through the allegations, even if they are false. If, however, CPS has already ruled out the allegations and no criminal action has been pursue, you should first gather your evidence. We have been with people at the police station when they made reports that they had been targeted by false CPS allegations. It is our experience that the police agency will want you to bring proof that the report was false or made in bad faith. Simply because CPS closed out the investigation and determined that there was “No Reason to Believe” that the allegations were true does not necessarily mean that the reporting individual acted in bad faith. Collect your text messages, social media messages, witness statements, and other evidence before you go to the police station to claim that you were the victim of a knowing false report. Because the State wishes to encourage reporting, it is reluctant to punish a person who reports unless there is clear cut evidence that the report was made in bad faith.  Again, it is best to contact an attorney to help you through this.

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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United States Age of Consent Map

What is the Age of Consent in the United States?

By | Sex Crimes

Is There a Uniform Age of Consent for all 50 States in the United States?

No, there is not a uniform age of consent. The “Age of Consent” is the minimum age at which a person may consent to participation in sexual intercourse. A person younger than the legal age of consent cannot legally consent to sexual activity. The age of consent in the United States ranges from 16 to 18 years old depending on the state, meaning that a person 15 years of age or younger cannot legally consent to sexual contact. Each state enacts its owns laws which set the age of consent.  If someone engages in sexual activity with a person younger than the age of consent in that state, the person could be charged with Statutory Rape or other offenses depending on the nature of the contact.

What follows is a map depicting the age of consent for all 50 states and a chart outlining the same.

*Note: This chart was current as of 2016, but could be subject to change over the years. Please do not rely on this chart to make any decisions that could impact your life. Check your own state’s age of consent laws to make sure you are fully informed, because ignorance of the law will not be a defense for you if charged with a child sexual offense.

United States Age of Consent Map

United States Age of Consent Map

United States Age of Consent Chart

STATE LEGAL AGE OF CONSENT
Alabama 16
Alaska 16
Arizona 18
Arkansas 16
California 18
Colorado 17
Connecticut 16
D.C. 16
Delaware 18
Florida 18
Georgia 16
Hawaii 16
Idaho 18
Illinois 17
Indiana 16
Iowa 16
Kansas 16
Kentucky 16
Louisiana 17
Maine 16
Maryland 16
Massachusetts 16
Michigan 16
Minnesota 16
Mississippi 16
Missouri 17
Montana 16
Nebraska 17
Nevada 16
New Hampshire 16
New Jersey 16
New Mexico 17
New York 17
North Carolina 16
North Dakota 18
Ohio 16
Oklahoma 16
Oregon 18
Pennsylvania 16
Rhode Island 16
South Carolina 16
South Dakota 16
Tennessee 18
Texas 17
Utah 18
Vermont 16
Virginia 18
Washington 16
West Virginia 16
Wisconsin 18
Wyoming 18

 

“Romeo and Juliet Law” in Texas | An Exception to the Age of Consent in Texas

As mentioned in the chart above, the age of consent in Texas is 17. Texas, as well as many other states, has created a so-called “Romeo and Juliet” law, an exception to the statutory rape and age of consent law. Romeo and Juliet laws are targeted toward teenagers and young adults who engage in sexual relations with someone under the age of consent (17 in Texas), but who are still close in age to the sexual partner. The Romeo and Juliet provision creates a close in age exemption and keeps these would-be offenders from being classified as sex offenders.

Under Texas law, if a person over the age of 17 has consensual sexual intercourse with someone under the age of 17, but there is also no more than a three-year age difference between the two partners, the Texas Romeo and Juliet law will not allow the older person to be charged with statutory rape or be classified as a sex offender.

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Statutory Rape Texas

The Statutory Rape Dilemma in Texas

By | Sex Crimes

Statutory Rape TexasOf the various types of criminal cases we defend in Fort Worth, Texas, Statutory Rape can be one of the more frustrating. First, a word of clarification; the term “Statutory Rape” does not actually appear in the Texas Penal Code. What I refer to as Statutory Rape is actually Sexual Assault of a person under 17 years of age (and over 14 years of age) under Section 22.011(a)(2). To understand what I mean about our frustration, consider this example (based on a true story).

The Story of Sam | A Common Statutory Rape Example

A 22 year-old attractive young man, let’s call him Sam, is filling up his car (a BMW) at a gas station when an attractive young woman (Nadia) approaches him and tells him how she admires his car. Nadia then tells Sam that she thinks he is cute and gives Sam her phone number. Nadia is younger than Sam, but he’s not exactly sure how much younger. She is fully developed and is dressed in mature clothing. Over the next few days Nadia and Sam send each other text messages. The messages are flirty at first and then Nadia turns the conversation toward sexual things. Sam is a bit surprised by how forward Nadia is, but he welcomes the banter. Sam then asks Nadia how old she is because he’s always heard the old adage “16’ll get ya 20.” Nadia tells Sam that she is 18 and says that she’ll show him an ID indicating the same when they get together. She then asks Sam to come pick her up in his BMW and take her to a park near her house. Sam agrees.

At the park, Nadia shows Sam her Texas ID, which says that she is indeed 18 years old. Sam and Nadia then engage in consensual sex, after which Sam takes Nadia home. Sometime during the next few days, Nadia’s mother gets ahold of her cell phone and notices the messages between her and Sam. When she confronts Nadia, Nadia admits that she and Sam had sex. Nadia’s mother is furious and calls the police to report Sam for child sexual assault. The police conduct a quick investigation wherein Sam admits to having sex with Nadia. After all, he thought he was doing nothing wrong since she was 18. The police then arrest Sam for statutory rape for having consensual sex with a 16 year-old. Nadia is only 16.

Statutory Rape is a Strict-Liability Offense

Statutory rape (Sexual Assault under Texas Penal Code Section 22.011(a)(2)) is a strict liability offense in Texas. What does this mean? It means that a person is guilty if:

  1. The person is older than 18 years of age; and
  2. The person intentionally or knowingly has sex with someone younger than 17 years of age.

*There is an exception to the law is the actors are less than 3 years apart in age, meaning that if the minor is 16 and the partner is 19 (but not more than 3 years older) then he will not be charged.

Other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas, hence strict liability. There is no Consent defense; consent is irrelevant for this offense. There is not Mistake of Fact defense when the minor lies about her age and no Mistake of Law defense for when the actors don’t know what the age of consent is in Texas. That is why we call this one of the more frustrating offenses in the Texas Penal Code.

Let’s take Sam’s case. Sam genuinely had no idea that Nadia was only 16. In fact, short of asking for her birth certificate, he showed due diligence in finding out her age before they had sex. He asked about her age and even saw her identification, which we now know was a fake ID. How can the state punish Sam when he tried to do everything right (fornication arguments aside)?

We often encounter this scenario or one like it. Our Fort Worth sexual assault defense attorneys have been able to get charges reduced under these circumstances. Many times, if we are hired before the grand jury considers the case, we will request to make a presentation to the grand jury and highlight these facts, urging the grand jury to no-bill the case and dismiss it. When we are negotiating with prosecutors on these types of cases, we do everything we can to get the charge amended to a different offense that doesn’t require sex offender registration (e.g. Injury to a Child). We have had considerable success in doing this, but it can be fact dependent (and personality dependent).

Sex Offender Registration for Consensual Sex with a Minor

Make no mistake; a conviction for statutory rape requires the offender to register as a sex offender in Texas. In fact, Statutory Rape is a lifetime registration offense. So although it may seem like a minor offense based on an age technicality, it is terribly serious. Further, even if your attorney is able to get your case reduced to a non-sex offense and you do not have to register as a sex offender, the court might still require you to undergo sex offender caseload on probation. You should fight this requirement as the sex offender caseload can be extremely difficult (and frustrating), especially when you never had the intent to commit a crime in the first place.

Free Consultation with a Fort Worth Statutory Rape Defense Attorney

If you are under investigation or have been charged with a Statutory Rape offense, contact our team of Tarrant County criminal defense attorneys. Our attorneys have the knowledge and experience to defend your future and your name with care and compassion. Contact us today at (817) 993-9249.

Sex Offender Passport Law

New Law Requires Certain Sex Offenders to Have Identifying Mark on Their Passports

By | Sex Crimes

Sex Offender Passport LawOn February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan’s Law?

The new law provides two categories of “covered” sexual offenders that will have to have this mark on their passport:

  1. Sex offenders convicted of a sex offense against a minor; and
  2. Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

  • Determine if individuals traveling abroad are listed on the National Sex Offender Registry
  • Review lists of individuals who have provided advanced notice of international travel, and
  • Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.

Conclusion

Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers.  Interested parties should be diligent to stay informed as the implementation of this law is rolled out.

Fort Worth Child Abuse Attorneys

Outcry Witness Statements Upheld by Fort Worth Court

By | Sex Crimes

Hearsay Statements Admitted in Child Sexual Assault Trial. Affirmed on Appeal by Fort Worth Court.

Fort Worth Child Abuse AttorneysGonzales v. State – 2nd Court of Appeals (Fort Worth) 2015

Pablo Gonzales, Jr. was convicted on one count of aggravated sexual assault of a child and three counts of indecency with a child. He was sentenced to life in prison by the jury for the sexual assault case and twenty years imprisonment in each of the indecency cases.

The defendant lived in a house where drug use was rampant and people would come in, often leaving their children for him to watch.  One of the witnesses against him, given the pseudonym T.P., was the mother of two of the girls that claimed to be sexually abused by defendant. Generally, hearsay testimony, testimony from one person about what another person says, cannot be admitted into evidence against a defendant. Here, the trial court applied an exception to the hearsay rule for an “outcry witness.” An outcry witness is the first person a child tells about abuse that the child received and this testimony by the outcry witness can be admitted.

The defendant in this case argued that the outcry witness testimony should not be allowed into court because T.P. admitted that her memory was fuzzy as a result of her drug use. Defendant also argued that T.P.’s testimony satisfied few, if any, of the nonexclusive factors the court considers in determining the reliability of an outcry.

When Can an Outcry Witness Statement by Admitted Over Defense Objection?

Article 38.072 of the code of criminal procedure provides a mechanism that requires the trial court to determine on a case-by-case basis if outcry witness testimony reaches the level of reliability required to be admissible as an exception to the hearsay rule.

Indicia of reliability that the trial court may consider [under article 38.072] include (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child’s statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense.

The defendant claimed that the outcry lacked reliability, specifically because of T.P.’s drug use and generally because it was short, lacked detail, and was uncorroborated. The 2nd Court of Appeals (Fort Worth) agreed that the statement was short, but pointed out that it was also very clear, specific, and unequivocal. A trial court’s decision to admit evidence will not be disturbed on appeal absent a clear abuse of discretion. A trial court has only abused its discretion if its decision falls outside the zone of reasonable disagreement.

The 2nd Court of Appeals went on explain that even if they concluded that the trial court abused its discretion in admitting the testimony, such error would not rise to the level of constitutional error and should only be reversed if the error affected the Defendant’s substantial rights. The Court noted the victim testified at trial, and her testimony both corroborated T.P.’s testimony regarding the outcry and provided greater detail.  For this reason, the Court held that even if the trial court abused its discretion by admitting the outcry witness testimony, the error would be harmless.

Even if someone admits to their memory not being completely accurate due to prominent drug use, their outcry testimony can still be brought into court if the person who made the statements to them originally, corroborates them. This may make it extremely hard to overturn a conviction with the Court of Appeals because even if outcry testimony may be weak or lacks reliability, the Court will likely not overrule the case so long as others corroborate the testimony. This may also make it extremely hard to keep out any outcry statements.

Fort Worth Jury Trial

Appeals Court Reverses Conviction in 11 Person Jury Trial

By | Jury Trial

12 Persons Required to Serve on Texas Felony Jury Trial – Fort Worth Trial Lawyers

Fort Worth Jury Trial LawyersA felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.

Stillwell v. State – Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015

Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.

During the conversation between the judge and the juror, the juror repeatedly said “I understand a little bit” or “I don’t understand.” Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.

The prosecution and defense disagreed, however, as to the legal basis for the juror’s removal. The state urged that juror be deemed “disabled” under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant’s consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state’s recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.

The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys‘ duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.

But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.

Fort Worth Criminal Trial Lawyers

If you or a loved one have a criminal case in Fort Worth, you need to seek the best criminal defense lawyer to represent you and protect your rights at trial. Call our attorneys today for a Free Consultation of your case.

Single Act, Single Offense – Indecency with a Child by Exposure

By | Sex Crimes

If a person commits indecency with a child by exposure, and there were three children present during the act, can he be convicted for three offenses?  In other words, is the allowable unit of prosecution the identity of the child or the act itself?

The 13th District Court of Appeals (Corpus Christie), as it explained in its unpublished opinion in Harris v. State, No. 13-08-537-CR (April 15, 2010), believes that an offense is committed for every child that is present at the time of the exposure – three children equals three counts.  Hence, double jeopardy does not bar multiple prosecutions for the same act.

Appellant (Harris) challenged this holding to the Texas Court of Criminal Appeals, contending that the offense of indecency by exposure is a “non-victim-based crime for which double jeopardy bars multiple prosecutions.” The CCA agreed, holding that

the offense of indecency with a child by exposure is complete once the defendant unlawfully exposes himself in the required circumstances…[T]he child does not even have to be aware of the exposure…The offense is based on the defendant’s actions and mental state, not the other person’s comprehension.

Reversing the court of appeals, the CCA explained, “the act of exposure is the gravamen of the indecent exposure.” Appellant’s conviction for three offenses violated double jeopardy. “Appellant committed only one offense under Section 21.11(a)(2)(A) when he exposed himself to three children at the same time.”

See Judge Hervey’s majority opinion in Harris v. State.

Presiding Judge Keller Dissented. She “would hold that each victim of indecency with a child is a separate unit of prosecution.”