Sex Offenses are on the rise in many communities. These are very serious charges and require immediate attention to preserve evidence and limit the devastating consequences a defendant may face.
Sec. 22.011. SEXUAL ASSAULT.
A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means,
without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual
organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor.
A sexual assault is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person’s emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or
(11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
(1) “Child” means a person younger than 17 years of age.
(2) “Spouse” means a person who is legally married to another.
(3) “Health care services provider” means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code;
(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under
Chapter 301, Occupations Code.
(4) “Mental health services provider” means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:
(A) licensed social worker as defined by Section 505.002, Occupations Code;
(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;
(C) licensed professional counselor as defined by Section 503.002, Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002, Occupations
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section 501.003,
Occupations Code; or
(G) special officer for mental health assignment certified under Section 1701.404,
(5) “Employee of a facility” means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.
It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.
It is an affirmative defense to prosecution under Subsection (a)(2):
(1) that the actor was the spouse of the child at the time of the offense; or
(2) that: (A) the actor was not more than three years older than the victim and at the
time of the offense:
(i) was not required under Chapter 62, Code of Criminal Procedure, to
register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(B) the victim:
(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or
purporting to marry or with whom the actor was prohibited from living under
the appearance of being married under Section 25.01.
An offense under this section is a felony of the second degree, except that an offense under this section is a felony of the first degree if the victim was a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
Aggravated Sexual Assault
Sec. 22.021. AGGRAVATED SEXUAL ASSAULT.
A person commits an offense if the person:
(1)(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means,
without that person’s consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the
actor, without that person’s consent; or
(iii) causes the sexual organ of another person, without that person’s consent, to contact
or penetrate the mouth, anus, or sexual organ of another person, including the actor; or
(1) (B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or
sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another
person, including the actor; or
(v) causes the mouth of a child to contact the anus or sexual organ of another person,
including the actor; and
(2) (A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another
person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that any person will become the victim of
an offense under Section 20A.02(a)(3), (4), (7), or (8) or that death, serious bodily
injury, or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause any
person to become the victim of an offense under Section 20A.02(a)(3), (4), (7), or (8)
or to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1)
directed toward the same victim and occurring during the course of the same criminal
(vi) administers or provides flunitrazepam, otherwise known as rohypnol, gamma
hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating
the commission of the offense;
(2) (B) the victim is younger than 14 years of age; or
(2) (C) the victim is an elderly individual or a disabled individual.
(1) “Child” has the meaning assigned by Section 22.011(c).
(2) “Elderly individual” and “disabled individual” have the meanings assigned by Section 22.04(c).
An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).
Defenses: The defense provided by Section 22.011(d) applies to this section.
An offense under this section is a felony of the first degree.
The minimum term of imprisonment for an offense under this section is increased to 25 years if:
(1)the victim of the offense is younger than six years of age at the time the offense is
(2)the victim of the offense is younger than 14 years of age at the time the offense is
committed and the actor commits the offense in a manner described by Subsection (a)(2)(A).
Online Solicitation of a Minor
Online Solicitation of a Minor charges are becoming more wide-spread and common in many Texas Counties; as state, regional and local Internet Crimes Against Children (ICAC) affiliates are established and federally funded through the Justice Department; Office of Juvenile Justice and Delinquency Prevention.
If you have been arrested for Online Solicitation of a Minor, you need an experienced team that can aggressively defend you and protect your rights. Gilbert G. Garcia represents clients charged with Online Solicitation of a Minor in Montgomery, Harris, Galveston, Ft. Bend and Walker Counties. Mr. Garcia has built a team approach and has developed specific strategies to fight Online Solicitation of a Minor cases for those charged. To fight the charge of Online Solicitation of a Minor, one must expect that it could take well over a year to resolve and will likely involve significant legal action.
Online Solicitation of a Minor: Texas Penal Code Section 33.021
The offense of Online Solicitation of a Minor falls under the Texas Penal Code Offenses, Chapter 33 – Computer Crimes.
Under Sec 33.021(c), the State is required to prove the elements of the crime of Online Solicitation of a Minor beyond a reasonable doubt. The State has the burden to prove the following:
- That the communications occurred over the Internet; by electronic mail or text message or other electronic message service or system, or through a commercial online service; AND
- That the defendant knowingly solicited a minor to meet, with the intent that the minor would engage in sexual contact, sexual intercourse or deviate sexual intercourse.
Further, the Statute mandates that the Defendant cannot rely on the following defenses:
- That the meeting did not occur;
- That the Defendant did not intend for the meeting to occur; or
- That the Defendant was engaged in a fantasy.
- The Statute does allow the Defendant to use the following defenses:
- That the defendant was married to the minor; or
- That the defendant was not more than three years older than the minor and the minor consented to the conduct.
Most of the recent arrests being made under this statute are the fruits of questionable sting operations that utilize an undercover officer posting as a child. In such cases, no actual child is involved, no actual child is solicited or harmed in any way. Law enforcement officers have become very savvy at this type of operation, creating an elaborate “persona” and placing ads on adult online dating sites. Mr. Garcia has found that many Defendants have a similar situation that led to the charge of Online Solicitation of a Minor. Most Defendants are actually on adult sites, such as Craigslist or other online dating sites and looking for adult companionship. The defendant will engage in online communications which often lead to sexual responses. The Defendant actually believes that they are communicating with an adult, as originally represented in the online ad. At some point during the conversation, the undercover officer states that s/he is under the age of 17 and ask the Defendant if s/he is still interested. Even if the Defendant believes the person is the actual age of the original representation or even if the Defendant never actually meets the alleged “minor”, the Defendant usually ends up being arrested for Online Solicitation of a Minor. In many cases, the law enforcement officer is the one that actually solicits for sex, with the defendant simply agreeing to the offer. When charged with Online Solicitation of a Minor, a defendant should understand the severity of the charge, the possible defenses, the penalty ranges, and the long-term consequences.
Online solicitation of a minor is a very frustrating charge for many defendants because it does not require a completed “act” with a minor. A defendant is essentially charged for the simple act of communicating in a certain way with a minor.
For Online Solicitation of a Minor, the method of contact must involve some type of online or electronic means. When this charge first evolved, most states restricted the application to conversations through the Internet, like those in chat rooms. However, as technology expanded, so have the online solicitation laws. Some laws, like in Texas, now include conversations through any electronic messaging services, emails, or text messages. As long as the method is electronic and the conversation includes a “meet in order to engage in sexual activity,” then a defendant can be charged with Online Solicitation of a Minor.
The Range of Punishment
In Texas, Online Solicitation of a Minor under subsection “C” is a 2nd Degree Felony.
For a defendant in Texas, a 2nd Degree Felony can result in a prison sentence which can range from two (2) to twenty years (20) in prison and a fine of up to $10,000. In most cases, a Guilty conviction or even a probation sentence will required the Defendant to register as a Sex Offender. Although a probation sentence can allow a defendant to remain free, the restrictions of probation tend to be more intense for Online Solicitation of a Minor because it is considered to be a case that requires sex offender registration. The court can order a defendant to submit to maintenance polygraphs, complete individual or group sex offender counseling, to submit to a sex offender evaluation, and to refrain from being around any children while on probation. The court usually requires a defendant to pay for these programs, which can cost up to $500.00 or more per month.
The long-term consequences can be even more devastating. Because Online Solicitation of a Minor is considered a sexually related offense, a defendant can be required to register as a sex offender. If a defendant fails to register as a sex offender, then s/he can be charged with a new felony offense of failure to register as a sex offender. Once a defendant has a sexually related offense on his/her record, some states will significantly increase the punishment for a second offense if a defendant is ever charged with another sexually related offense. Beyond the court system, Online Solicitation of a Minor will also affect employment, housing and volunteer opportunities, voter eligibility, gun rights, admission to school and access to credit and/or student loans. With an ever-expanding wealth of data available on the internet, more employers are performing background checks and will likely not hire certain candidates with criminal records. Applicants with sexually related offenses are generally the first to get cut.
Online Solicitation of a Minor Defenses
Mr. Garcia has formulated a three-pronged strategy in developing a defense for cases involving Online Solicitation of a Minor:
- Exhaust all avenues to gather discovery items, including a 37 item Motion for Discovery and numerous Open Records Request throughout the State of Texas to gather all pertinent evidence.
- Utilize contested motions hearings including Motions to Quash Indictment for Lack of Specificity and Motions to Suppress. Mr. Garcia realizes that while the criminal case is pending trial, every effort must be made to preserve the record so that the Defendant has a strong case on appeal. Our team works collaboratively with local and regional Appellate lawyers to preserve such evidence, raising all necessary points and filings.
- Writs of Habeas Corpus to challenge the constitutionality of portions of the remaining Texas laws.
Mr. Garcia realizes that in many cases local law enforcement and the District Attorney use such “stings” to gain media attention in an effort to taint the potential jury pool and “convict” the defendant in public prior to the Jury Trial. Strategies like an Application for Gag Order can help the Defendant in such situations.
One defensive angle is to prove that the defendant did not believe that the person on the other end of the sting was an adult. Some juries have even engaged in “jury nullification,” by finding a defendant not guilty if they believed that the defendant did not have a reason to believe that the person on the other end of the communication was underage. Each case must be evaluated to determine the best course of action. If you or a loved one has been charged with Online Solicitation of a Minor, contact us TODAY.
The Appeal Process for Online Solicitation of a Minor
During every step of the pretrial phase, it is vital to preserve evidence and make the proper appeal points along the way. For Online Solicitation of a Minor case, it is important to have a Defense team that can work the pretrial and trial phases of the case parallel to the appeal portion of the case. In some cases, a lower court Jury Trial may not produce the most favorable outcome for a Defendant charged with Online Solicitation of a Minor. If you represent a Defendant charged with Online Solicitation of a Minor case or if you have a loved one that recently experienced a “Guilty” verdict, then I urge you contact an Appellate lawyer right away! An Appellate lawyer can provide you with more information about the Appeal process and help you better understand all available remedies.
Know & preserve your Appeal Rights!!
If you wish to seek an Appeal based on a constitutional issue and appeal the underlying conviction, then your case needs to be appealed within 30 days of the date that the lower Trial Court rendered the Judgment. This type of appeal must be based on the evidence presented at trial. All points of error raised on direct appeal must have been “preserved” during trial or before trial by the trial attorney. Without the experienced of an appellate attorney during all phases of the trial, you may lose the right to directly appeal errors made by the trial court. Even some constitutional issues require preservation before or during trial and may be lost if not properly objected to or raised. Having an experienced appellate attorney is essential to ensuring that all possible errors and constitutional issues can be heard by the appellate courts.
If the 30-day window has lapsed, you may have other remedies available to consider such as a Writ of Habeas Corpus. A Writ allows the Defendant to bring in new or different evidence that may not have been presented at trial, may have been omitted at trial or may have not come to light until after the trial. Many family members are unaware of the 30-day timeframe to Appeal a conviction, and therefore a Writ can be a powerful tool to consider as an available option since no time limit is placed on its filing.
Depending on the lower court’s ruling, a Defendant can file an 11.07 Writ if s/he was found “Guilty” and sentenced to prison by the lower trial court or an 11.072 Writ if the Defendant was placed on probation by the lower trial court.
Appealing your case based on unconstitutional challenges. There are two ways to attack the constitutionality of a statute:
- Motion to Quash
- Writ of Habeas Corpus
The denial of a Motion to Quash is not appealable before trial, so if you challenge the constitutionality of the statue with a Motion to Quash, you will have to try the case before appealing it. However, the facial challenge (as opposed to “as applied”) on the grounds of unconstitutionality of a statute can be asserted with a pretrial Writ of Habeas Corpus, and the denial of such a Writ can be appealed before trial. See Ex Parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010).
At The Gilbert G. Garcia Law Firm, every effort is made to preserve all issues during the pretrial phase of the case so that all Appeal points are preserved and valid if or when the case reaches the Court of Criminal Appeals and/or the Texas Supreme Court. The team of experts that The Gilbert G. Garcia Law Firm utilizes includes an Appellate lawyer, Corey Young, from Maginnis, Pullan & Young.
Constitutional Challenges to The Texas Online Solicitation of a Minor
The Court of Criminal Appeals of Texas called into question the constitutionality of Section (b) of the state’s Online Solicitation of a Minor law. Other portions of the law are being closely examined by defense attorneys and several other appeals are working their way through the Texas courts at this time, which could bring about even more changes in the law. Appellate lawyer, Corey Young, with Maginnis, Pullan & Young, has worked on several Online Solicitation of a Minor cases and is well versed in the appeal points, the nuances of the law and the potential issues that the current law may face with other pending appeals.
The case that was recently called into question concerned a Texas man over the age of 17 who was engaging in explicit communications with an individual that he believed to be under the age of 17. The man apparently did not want to meet the person he was communicating with, and was only doing this for purposes of arousal. At trial, the man alleged that the statute that he was charged under was overbroad and vague, and therefore his charges should be thrown out. The trial courts did not agree with the man’s assessment, and the Court of Criminal Appeals of Texas decided to review the constitutionality of the statute as it was a matter of first impression. This particular section of the law in question had been in effect since 2005. In its review, the Court of Criminal Appeals of Texas was specifically concerned with the section of the law that dealt with the actual sexually explicit communication between the suspect and the minor.
The Court of Criminal Appeals of Texas concluded that it was necessary to examine the connection between the prohibited activity and the language used in the law to prohibit this activity. Since it dealt with an issue of free speech, the content of the law would have to be very narrowly drafted in order to withstand this scrutiny. In its review, the Court of Criminal Appeals of Texas agreed that protecting minors from online solicitation is an important interest of the state. However, the law in question was determined to be unconstitutional due to the restrictions on free speech.
The Court of Criminal Appeals of Texas also examined the legislature’s reasons for enacting the law. The legislature passed the law in order to prevent online solicitation of minors at the time of the communication, not at a later point.
This ruling may prompt a review by the Texas Supreme Court, or changes to the law by the legislature. Those facing an Online Solicitation of a Minor case should speak to an experienced Appellate attorney as soon as possible.
Traditionally, a content-based speech restriction is presumptively invalid, and the State has the burden of showing that the statute meets strict scrutiny. In this case the Court of Criminal Appeals held that the State had failed to show that Section 33.021(b) survived strict scrutiny.
“Sexually explicit” communications are defined as anything that relates to sex. The State argued that coupling “sexually explicit” with “the intent to arouse or gratify” narrowed the statute sufficiently to satisfy the First Amendment. But the intent to arouse or gratify sexual desire is not forbidden thought, and sexually explicit communications are not forbidden speech; the court found that coupling the two did not render the restriction constitutional:
“Section 33.021(b) prohibits constitutionally protected speech when that speech is coupled with constitutionally protected thought. . . . [C]onsistent with the First Amendment, it is conduct designed to induce a minor to commit an illegal sex act with titillating talk that may be proscribed, not the titillating talk itself.”
Strict scrutiny is “traditionally” the test because now this is in doubt after U.S. v. Stevens (559 U.S. 460 (2010)), in which the Supreme Court did not mention strict scrutiny, rejected any sort of balancing test as “startling and dangerous,” and applied a categorical test: If the forbidden speech falls within a category of traditionally unprotected speech, the statute is valid; otherwise it is not. The result in this case would have been the same had the Texas Court of Criminal Appeals applied a strict categorical test, but it’s something to keep in mind for future challenges to Texas statutes regulating speech.
Online Solicitation of a Minor laws are currently being challenged in numerous states, alleging US Constitutional violations. Frequently being challenged by defendants on the basis that they violate a defendant’s right to free speech, the right to privacy and/or that the Statute is overbroad.
However, other portions of the law remain, as several appeals have yet to reach the Texas Supreme Court for a ruling.
If you or a loved one was convicted under this Section of the Penal Code, contact a lawyer TODAY!
Beware – Investigations & Stings Out of Control
Perverted-Justice is an organization which investigates, identifies, and publicizes the conduct of adults posing as minors who solicit online sexual conversations with minors. The activity of their website consists of volunteers who carry out sting operations posing as minors on chat sites and waiting for adults to approach them. After obtaining identifying information of adults posing as minors, who may offer their telephone numbers and other details so that meetings can be arranged, the organization passes the information on to law enforcement. Perverted-Justice’s methods are controversial, and a number of critics have labeled these actions harassment. The site additionally attracted media attention, as a result of their collaboration with Dateline NBC on a series of televised sting operations called To Catch a Predator.
“Dateline’s” Murphy, Texas sex sting concluded with a soon-to-be defendant committing suicide as the “sting” operation exploded. This same sex sting failed to net any actual convictions. The Collin County district attorney’s office declined to pursue more than 20 cases related to the “Predator” operation, citing problems with the evidence gathered. As a result of the suicide, in February of 2008, a U.S. District Judge Denny Chin ruled that the case could go forward on claims of intentional infliction of emotional distress and violation of civil rights.
Chin dismissed some causes of action but said in his ruling that the network “placed itself squarely in the middle of a police operation, pushing the police to engage in tactics that were unnecessary and unwise, solely to generate more dramatic footage for a television show.”
“A reasonable jury could find that by doing so, NBC created a substantial risk of suicide or other harm, and that it engaged in conduct so outrageous and extreme that no civilized society should tolerate it,” Chin wrote.