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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.

Texas Sex Offender Registration

Which Crimes Require Sex Offender Registration in Texas?

By | Sex Crimes

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.

Juvenile Sex Crime Diversion Tarrant County

Project SAFeR: Juvenile Sex Crime Diversion Program in Fort Worth

By | Juvenile

Treatment without Labels: An Effective Program for Juveniles Charged with a Sex Crime in Tarrant County

Juvenile Sex Crime Diversion Tarrant CountyImagine this: You receive a call out of the blue from a detective telling you that he is investigating your 11-year-old son for sexually touching your 6-year-old niece. How do you protect your young son who is being charged with Aggravated Sexual Assault of a Child? How do you choose between helping your son and helping your niece? Is there any way to get them both help without prosecuting your son? Will your son be labeled a sex offender for the rest of his life? Is there any way for your extended family to work this out?

While this may seem far-fetched, it happens more than you think. Fortunately, there is now a program in Tarrant County that can help without destroying the life of either child involved. It is called Project SAFeR.

What is Project SAFeR?

Project SAFeR (which stands for Safety and Family Resiliency) is a program in Tarrant County designed to help youth with problematic sexual behaviors who are between the ages of 7-12. There are three components to the program: legal, supervision, and counseling. The program, which started in July 2015, was created through a collaborative effort of Lena Pope Home, Alliance for Children, Tarrant County District Attorney’s Office, Child Protective Services (CPS), Tarrant County Juvenile Services, and local law enforcement. The purpose of the program is to help the victim, young juvenile, and their families deal with the problem in an effective way so that both children may go on to lead productive lives.

What is Problematic Sexual Behavior?

Problematic sexual behavior is that which is goes beyond what is normal sexual development for a child’s age. It usually involves children who are quite a bit different in age or who are not considered equals due to maturity, size, or other factors. A child with problematic sexual behaviors will act out on another child who is not a willing participant, either through the use of force, threats, bribery, or some other type of coercion or persuasion. Problematic sexual behaviors interfere with normal, nonsexual, childhood interests and behaviors, and usually continue even after a child’s behavior has been discovered and reprimanded.

The Legal Component of Project SAFeR

Because kids under the age of 10 cannot be prosecuted for their actions in Texas, children between the ages of 7-9 who have problematic sexual behaviors, can be referred to the counseling program but will not be required to participate in the diversion or supervision components. For these children, a parent can contact Lena Pope Home in Fort Worth at 817-255-2500 for help (see below for more specifics on the counseling component).

For children between the ages of 10-12, law enforcement and/or CPS will likely be involved to some extent. Many times, these cases will be referred to Tarrant County Juvenile Services and the Tarrant County District Attorney’s Office Juvenile Unit.

In order to be eligible to participate in the legal, or diversion, component of Project SAFeR, the charged juvenile must be between the ages of 10-12. If a juvenile is older than 12, he will be ineligible for the diversion program. Other eligibility requirements for the program are:

  • A multi-disciplinary team must decide that the case is appropriate for inclusion in the program based on the totality of the circumstances. This team screens cases for the program while they are still being investigated by CPS and law enforcement.
  • The victim’s family must agree to the charged juvenile being in the program. If the victim’s family does not agree, this alone will make the juvenile ineligible.
  • A risk assessment, which will be completed by the counselors involved in the program, must show the charged juvenile to be at a low risk to reoffend.

If all of these requirements are met, a juvenile’s case will be filed with the court by the prosecutor. The child will appear before a juvenile court judge and must admit to committing the offense. The judge will make a finding that there is enough evidence to find the juvenile guilty of the offense, but the judge will instead withhold judgement on the issue of delinquency and order the child into Project SAFeR.

If the juvenile successfully completes the supervision and counseling components of the program, the prosecutor will dismiss the case. If, however, the child is kicked out of the program, then he will return to court and will be found delinquent at that time and then will proceed to the disposition, or punishment, stage of the case. A juvenile who successfully completes Project SAFeR will, as a condition of the program, be eligible to have his record sealed upon his 16th birthday.

The Supervision Component of Project SAFeR

The supervision component of Project SAFeR is provided by Tarrant County Juvenile Services. If the child is allowed into the program, he will be assigned a juvenile probation officer who is a part of the Juvenile Offender Unit. The term of supervision will be up to 6 months in length. During that time, the juvenile must complete the counseling component of the program as well as go to school, not commit any new offenses, and obey his parents/guardians. The probation officer will check in on the juvenile, as well as check with his counselor and parents, on a regular basis while in the program.

The Sexual Counseling Component of Project SAFeR

The counseling piece of the program is provided by Lena Pope Home at their Fort Worth location. Both the child charged and at least one caregiver will be required to attend all counseling sessions while in the program. The counseling is once a week (on Monday nights) for 18 weeks.

The juvenile will attend a child’s group at the same time that his caregiver is attending a parents’ group each week. The two groups will be learning the similar material at the same time. So, for instance, during the week that the juvenile is learning the sexual behavior rules, his parent will be learning how to enforce those sexual behavior rules in the home. In addition to learning about sexual behavior rules and appropriate relationships, those in the program will also learn communication skills and stress relief strategies. Both the juvenile and parent must demonstrate that they have learned and are implementing the information taught in order to successfully complete the program. The counseling is provided free of charge to those in the program.

Outcomes and Benefits of Project SAFer

While this program has only been in existence in Tarrant County for a little over a year, it has been implemented in other parts of the country for many years. The program in Omaha, Nebraska, recently completed a 10-year follow-up study on those juveniles who completed their program. They found that of those who successfully completed the program, less than 2% committed a new sexual offense. This is a much lower reoffending rate than traditional sex offending treatment programs.

The majority of those who have been accepted into the Tarrant County Project SAFeR program have graduated. Many of those parents have indicated that the information they learned in the program not only helped them handle their children’s sexual behavior problems, but it also taught them to be better parents in general. The techniques and strategies taught in the counseling component have also been instrumental in helping parents to communicate better and have better relationships with their children. It has brought these families closer together.

Project SAFeR is taking a whole new approach to treating children with problematic sexual behaviors. It starts with NOT labeling or treating them as sex offenders. It approaches the problem from a family-focused point of view and treats it as a serious problem that the family can get through together, as opposed to treating the juvenile as if he is a sex offender who is doomed for the rest of his life. If your child is between the ages of 10-12 and is facing prosecution for a sex crime in Tarrant County, ask your attorney about whether Project SAFeR is the right approach for you and your family.

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. She was part of the multidisciplinary team that created a Project SAFeR.

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.

Sexting Message Texas

“Attempted Sexting” Lands 24 Year-Old on Sex Offender Registry

By | Sex Crimes

Attempted Transfer of Explicit Video of Self to a Minor (Sexting) Amounts to a ‘Sexual Act’ Resulting in Registration on the Sex Offender Registry

Sexting Message TexasUnited States v. Schofield – (5th Circuit Court of Appeals, 2015)

Should a person be ordered to register as a sex offender for sending explicit video to a minor (sexting), but never physically touching the victim? The Fifth Circuit Court of Appeals says yes.

In November 2013, twenty-four year old Nick Schofield began sending text messages to a fifteen-year-old girl. They sent text messages for four months, when an undercover federal agent assumed the girl’s side of the conversation. Believing he was still communicating with the girl, Schofield sent the undercover agent sexually explicit photos and videos of himself. A grand jury indicted Schofield on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor, violations of 18 U.S.C. § 1470. In his plea agreement, Schofield pleaded guilty to one count of attempted transfer of obscene material to a minor, and the other counts were dismissed at sentencing.

The district court sentenced Schofield to two years imprisonment and ordered him to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). The purpose of SORNA is to establish a national sex offender registry, “to protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Under SORNA, a convicted sex offender must register his current address and employer’s address.

At trial, Schofield objected to the registration requirement of his sentencing. Schofield appealed to the Fifth Circuit Court of Appeals, contending (1) that the crime of attempted transfer of obscene material to a minor was not a sex act under SORNA and (2) that the statutory definition of a sex offense as a “criminal offense against a minor” was an unconstitutionally vague, all-encompassing residual clause.

First, the Court stated the purpose of SORNA is to “cast a wide net to ensnare as many child offenders as possible.” United States v Dodge, 597 F.3d 1347. The wide net was meant to apply to as many offenses against children that make sense according to the plain language and plain meaning of the statute. The Court also quoted an Eleventh Circuit case dealing with similar facts and charges. The Eleventh Circuit held that the 18 U.S.C. § 1470 intended “[not] to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.” Id. In short, the Fifth Circuit Court of Appeals held that the crime of attempted transfer of obscene material to a minor, was in fact, a sex act under SORNA’s plain language, structure, legislative history, and purpose.

Second, the Court found that Schofield’s conduct in sending the explicit video to a fifteen-year-old girl falls within the SORNA residual clause, noting, “the key is conduct that contains a sexual component toward a minor.” Because Schofield’s conduct “engaged with” a young girl in a sexual manner, the Court held that his conduct includes a sexual component toward a minor, falling under SORNA’s residual clause. The Court reiterated, “Judges do not need a statute to spell out every instance of conduct that is a sexual offense against a minor.” Id.

The Fifth Circuit Court of Appeals held that the language of SORNA’s residual clause was intentionally vague, with the purpose of including as many criminal offenses as possible. Even though the Defendant did not have physical contact with the girl, he was deemed by the Court to have behaved in a sexual manner, which amounted to a sexual act requiring registry on the sex offender registry. If you or a loved one is facing a sexual or computer crimes charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249.

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.

Coaching child victim

Coaching a Child Victim

By | Sex Crimes

Coaching child victimTexas courts have routinely held that an expert witness, such as a child psychologist, may not offer an opinion about the truth of a certain child victim’s specific allegations or about the truth of child victim allegations in general. But they haven’t shut that door completely.

A couple of weeks ago, the 7th District Court of Appeals (Amarillo) reaffirmed the legal principle that:

Expert testimony that a child did not exhibit indications of coaching or manipulation [does] not to constitute an opinion on the child’s truthfulness.

In Cantu v. State, one of the defense theories was that the child victim had been coached by her mother to make false allegations against Appellant. To counter this theory, the State brought an experienced child interviewer from the Advocacy Center to testify that in her expert opinion, the child victim in this case did not exhibit any “red flags” that would indicate that she had been coached or manipulated. The State was careful not to elicit testimony that the victim was being truthful and thus, the conviction was affirmed on appeal.

To me, this is still an area ripe for objections at trial and a special inclusion in the jury charge. You may get a judge that will exclude it. Okay, probably not, but it’s worth a shot. While most lawyers can see the technical difference between an opinion on truthfulness and an opinion on coaching, many jurors will not.

Jessica’s Law: Continuous Sexual Abuse of a Child

By | Sex Crimes

A Review of Jessica’s Law in Texas | Sex Crimes Defense Attorneys

The 80th Texas legislature enacted the “Jessica Lunsford Act” (H.B. 8) to create a criminal offense of Continuous Sexual Abuse of a Child (Texas Penal Code 21.02).  The chart below details the particulars of the offense of Continuous Sexual Abuse of a Child under Section 21.02.

The elements of Jessica’s Law:

  • The sexual abuse may be committed against 1 or more victims. (Texas Penal Code 21.02 (b)(1))
  • The complaining witness must be a child younger than the age of 14. (Texas Penal Code 21.02(b)(2))
  • This offense does not apply to juvenile offenders. (Texas Penal Code 21.02(b)(2))
  • A jury is not required to agree unanimously on which specific acts of sexual abuse the defendant committed or the exact date when those acts were committed. (Texas Penal Code 21.02(d))
  • The jury must agree unanimously that the defendant committed 2 or more acts of sexual abuse during a duration of 30 days or more. (Texas Penal Code 21.02(d))
  • An affirmative defense does exist for the offense. If the defendant was not more than 5 years older than the complaining witness; did not use duress, force, or threat; and was not a registered sex offender, then the defendant may raise these points as an affirmative defense. (Texas Penal Code 21.02(g))

Punishment:

  • For a first time offense, regardless of prior criminal history, the range of punishment is 25 to 99 years or life in prison. (Texas Penal Code 22.02(h))
  • Any subsequent offense will result in life in prison without parole (Texas Penal Code 12.42(c)(4))
  • Even for a first time offense, there is no deferred adjudication community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 5(d) (3)), no judge-ordered community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 3(e)(1)), or no jury-recommended community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 4(d)(1)).
  • Essentially, probation in any form or fashion is not an option under Jessica’s Law.
  • Additionally, a defendant convicted under this law has no eligibility for parole. (Texas Government Code Section 508.145 (a)).

Aside from a capital murder charge, the offense of Continuous Sexual Abuse of a Child is now considered the highest level of offense a person in Texas can be charged with. We’ve had several years to watch juries handle these types of cases and we’ve seen that juries tend to punish severely when presented with continuous sexual abuse of a child.

If you or a loved one is facing a serious criminal charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249. We offer free consultations.

Leonard v. State

CCA Reverses Course on Polygraph Admissibility

By | Sex Crimes

Leonard v. StateAlthough polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this “opinion is troubling,” as Sarah puts it.  I agree.