Information Related to Sex Crimes Offenses – Online Solicitation of a Minor, Aggravated Sexual Assault, Indecency with Child, Indecent Exposure, Prostitution – in Houston and surrounding Texas counties.
Call the Texas Sex Crimes lawyers at (832)-328-0600 for answers to your questions not found below.
Contents:
FAQ – Sexual Abuse of a Child
When an Alleged Victim of a Sex Crime is a Child
Punishment Issues in Child Abuse Cases
Texas “Online Solicitation of Minor” Statute Now A Voided Law
What is a 3g offense?
This refers to a section of the criminal code. Taking into account the latest amendments by House Bill 8, all sexual assaults, indecency with a child and sexual performance by a child are 3g offenses. A judge cannot grant probation for these offenses; only a jury can recommend it if a “guilty” verdict has been rendered.
Can I receive deferred adjudication for a 3g offense?
Yes, but only the judge can grant it, not a jury, and then only if you have never had a probation for any type of sex offense in the past.
What is the minimum term of deferred adjudication for a 3g offense?
The minimum term of deferred adjudication for any 3g sexual offense is five years.
Will I be required to attend sex offender counseling sessions on probation?
Yes, if the victim is a child under the age of 14, then the judge MUST require sex offender counseling as a condition of probation.
I’ve heard about the “New Super Aggravated Offenses”. What are they?
With regard to child abuse offenses, the 80th Legislature added a new section to the Penal Code defining a new offense of Continuous Sexual Abuse of Young Child or Children. The statute prpovides that this offense is committed if the defendant commits two or more acts of abuse during a minimum of 30 days. You can be charged with this offense regardless of whether the abuse is committed against one or more victims and if you are at least 17 years and the child is younger than 14 years. §21,02 Penal Code.
There is an affirmative defense to prosecution under §21.02: We have the burden of proof, by a preponderance of the evidence, that the defendant was not more than five years older than the victim or the youngest victim (if more than one); did not use duress and was not at the time required to register as a sex offender under Chapter 62, C.C.P.This is a First Degree Felony and carries a minimum 25 year penalty.
What is “Aggravated, Aggravated Sexual Assault”?
The 80th Legislature established greater penalties making an Aggravated Sexual Assault doubly so. This happens when the victim is younger than six years of age or when younger than fourteen and the defendant causes serious bodily injury or attempts to cause the death of the victim, or places the victim in fear of death, of serious bodily injury or kidnaping, uses or exhibits a deadly weapon or administers certain date rape drugs [set forth in the statute] with the intent to facilitate the commission of the offense.
My attorney mentioned the child’s outcry statement. What is that?
This is the complaint the child makes to adults or authorities regarding the alleged abuse. In child sexual abuse cases the “outcry statement” is a recognized exception to the normal exclusion of “hearsay” evidence. (Art. 38.072, TCCP). Thus, the prosecution may use as evidence of guilt statements made by the child victim younger than 14.
It depends. To be admissible, the following conditions must be met:
- The Complainant made the statement, not someone else.
- The statement describes the offense in some discernible way; it is not a general allegation of abuse.
- The statement is reliable based on time, content and circumstance.
- The statement is made to someone 18 years of age or older, not the defendant.
- The Complainant must be available to testify in some manner provided by law.
The burden of proof is on the State to prove each element of admissiblity in order for the outcry statement to be allowed in.
My lawyer also mentioned the outcry witness. What does that mean?
The outcry witness is the first adult to whom the child makes a particularized statement about the offfense; that is, the first adult to whom child tells the how, when and where of the offense. A general confirmation of abuse to an adult by the child does not make that adult the outcry witness.
The trial court judges have broad discretion in determining who is the outcry witness. Often [but not always] a judge will view family members as having received only general statements of abuse whereas subsequent statements to adults outside the family, such as school counselors, will cause the court to rule that the counselor as the outcry witness. A clear abuse of this discretion must be present in order to overturn such rulings.
Can there be more than one outcry witness?
Yes, where the child describes different conduct to each. There may be two outcry witnesses if they each testify about different events but there can be only one outcry witness as to a single event. Even statements made over several days can be admitted as part of one single outcry statement to the same witness.
What is the Reliability Hearing?
This is the hearing before the judge in which the outcry statement is determined to be admissible or is denied. The judge will consider the time, content and circumstances of the child’s statement. For the judge to admit such evidence without a hearing is an abuse of discretion. However, it must be shown that harm was done by the judge’s abuse of discretion to have the ruling overturned.
Is the child’s outcry statement substantive evidence of guilt?
Yes. The outcry statement of a child victim may, standing alone, be sufficient to support a “Guilty” jury verdict. It does not need to be corroborated or substantiated by the child’s testimony or by other independent evidence.
Who decides whether a child victim gets to testify at Trial and on what is that decision based?
In general, it is up the judge who will consider four factors: 1) the child’s ability to observe intelligently the events in question at the time of their occurrence; 2) the child’s ability to recall the events; 3) the child’s ability to narrate the events, to understand and answer questions about them; 4) the child’s ability to understand the moral responsibility to tell the truth.
Will inconsistencies and conflicts in a child victim’s testimony make him or her incompetent to testify?
No – but these are factors that a good attorney will make sure affect the “weight” to be given his or her testimony.
WHEN AN ALLEGED VICTIM OF A SEX CRIME IS A CHILD
When the alleged victim is a child, questions will arise concerning the child’s competence to offer evidence, his or her demeanor, credibility, the use of demonstrative evidnce and the child’s motive, bias, and interest in the outcome of the case. All these things must be addressed in the case where the alleged victim is a child.
Competence
In general, it is at the discretion of the judge of the trial court to determine whether a child witness is competent to testify. The trial court will consider four factors:
- the child’s ability to observe intelligently the events in question at the time of their occurrence;
- the child’s ability to recall the events;
- the child’s ability to narrate the events, to understand and answer questions about them;
- the child’s ability to understand the moral responsibility to tell the truth.
If a child victim’s testimony contains inconsistencies or conflicts, this will not necessarily rule him or her out from testifying. But the presence of such conflicts will be used to weight his or her testimony. The trial judge should examine the child outside the presence of the jury to see that he or she satisfies the general elements of witness competency. The court may order the testimony of a child to be taken by closed circuit equipment if the child is younger than 13, unavailable to testify in the presence of the Defendant or to protect the welfare of the particular child victim or if the child will be traumatized by the presence of the Defendant or if the emotional distress suffered by the child in the presence of the Defendant is more than just simple nervousness. This closed circuit TV testimony does not violate the Defendant’s Confrontation Clause rights but first the Court must make a finding as to its necessity.
Videotaped Interviews
In some instances, a pre-indictment videotaped interview of a child victim may be admissible in place of the child’s live testimony. First, the judge must make a ruling however that the child is “unavailable” to testify based on one of the above reasons (welfare of the child, etc.) Occasionally children will take the stand and refuse to testify about the alleged offense or will claim not be remember. In these instances, the judge can rule the child is “unavailable” and allow the videotaped testimony. Cross-Examination by way of written interrogatories can be done. The original interviewer presents them to the child and the answers are videotaped. The Defendant is not allowed to be present during this cross-examination but is allowed to view it as it is being conducted outside of the sight of the child.
In a recent case (Martinez v. State) an audio tape of the child complainant became admissible as a ‘prior consistent statement” after the defendant intimated, upon cross-examination, that this child complainant had been “coached” by the prosecutors and by leading questions thus giving the impression that the complainant provided a different story to the jury than she had when originally making her outcry to police. Thus we see that the child victim’s videotaped statement may become admissible as a prior consistent statement to rebut a claim of “recent fabrication” under Texas Rule of Evidence 801(d)(1)(B). In another case, the child complainant’s statements to her school counselor, a CPS investigator and a police investigator were all deemed admissible as “prior consistent statements” to rebut a claim of recent fabrication, where the victim testified on direct examination that the abuse occurred but then recanted on cross-examination. There is a substantial issue here as to whether videotaped child testimony violates the Defendant’s confrontation and cross-examination rights. The Houston sex crimes defense attorneys at The Haggard Law Firm hold that the child victim videotape statute violates our clients’ Sixth Amendment rights to cross-examination and confrontation by failing to guarantee a simultaneous and effective contemporaneous right to cross-examine the child victim and, further, that the videotape statute violates our clients’ due process rights. We fight wherever possible to not admit out-of-court videotaped interviews of child victims. We do not find that the opportunity to cross-examine a child witness by written interrogatories overcomes the inherent inequities.
Impeachment of the Child Witness
There have been cases where convicted defendants have received reversals of their convictions due to the trial court’s having excluded evidence that the child complainant had made several false allegations of sexual abuse against other men in the past. So this is a serious issue that must be dealt with at the trial court level. The difficulty is showing or proving that the child victim’s extraneous allegations of abuse by others are false; a simple denial of abuse by the alleged perpetrator of the extraneous abuse is not sufficient evidence to permit the impeachment of the child complainant.
Another issue we are greatly concerned with is that our clients be allowed their Sixth Amendment rights to present a complete defense. A common defense in many of our child sexual abuse cases is that the child was actually abused by someone else, not by our client. Now, in order for this alternative perpetrator evidence to be admissible we must show that our evidence is sufficient, on its own or in combination with other evidence of record, to show a nexus between the crime charged and the alternative perpetrator. We fight to be allowed to develop our theories, through direct evidence and cross-examination, that another individual abused the child victim and then coached the victim to lie that our client had done it – where this is the case.
Statements for Medical Treatment or Diagnosis
When a child victim makes statements to a non-medical professional, such as a counselor, in the expectation or hope that they will be relayed to a medical professional as pertinent to the victim’s treatment, such hearsay statements are admissible. All the therapist need do is state for the record that truth-telling was a vital component of the course of therapy, that the statement of the child as to who did it was pertinent to the treatment and that the child understood this. A child’s therapist can testify to the child’s statements made in therapy regarding the identify of the abuser if the information is necessary to the proper implementation of the therapy and if the child was informed of the importance of telling the therapist the truth.
Expert Witnesses
In Child Sexual Abuse and other Sexual Offense cases, expert testimony may be admissible if scientific or technical knowledge will help the Court to understand the evidence. For such evidence to be admissible however it must be both reliable and relevant. The Courts have distinguished between hard science (physics and chemistry) and soft science (psychology and sociology).
Three questions must be answered in the affirmative to allow the reliability of a “soft science” psychological expert’s testimony relating to his examination of a child sexual abuse victim:?
- Is the field of expertise a legitimate one;
- is the subject matter of the expert’s testimony within the scope of that field;
- does the expert’s testimony rely upon the principles involved in that field.
Syndrome Evidence
When the alleged crime is a child sexual abuse offense, the Prosecution will often offer expert witness testimony to describe a “syndrome” experienced by victims of the same type of offense. The purpose of this is that the jury will accept it as direct evidence of the charged act and conclude that the victim, who exhibits the same characteristics of the syndrome, was in fact the victim of the charged offense.
Syndrome evidence is a big problem for the defense. It establishes an aura of “truth” surrounding the allegations yet does not deal with the question of the identity of the perpetrator. We subject all “syndrome evidence” to all the rigors encountered in any other type of expert testimony.
Experts May Not Testify Regarding Truthfulness of Complainants
At no time, however, is any expert allowed to testify regarding the truth or falsity of the allegations or the truthfulness of the complainant. For example, in a recent case an expert witness was wrongfully allowed by the Court to imply the children were telling the truth by claiming she would not have agreed to be a witness in the case if she had seen evidence of deception.
What is Permitted
Expert testimony regarding the behavioral characteristics of sexually abused children, such as that they delay making an outcry and initially deny the abuse, is usually admissible. There is a long-standing Texas rule that expert testimony that an abused child will exhibit certain empirical traits is relevant and admissible under Rule 702, Texas Rules of Evidence. Such a field of expertise is legitimate and, if within the scope of his expertise, an expert’s unimpeached testimony will support a conclusion that his opinions are accepted by the relevant scientific community of psychologists.
However, if a State’s psychological expert testifies that the testimony of the child is “consistent with child abuse” or that there was grooming taking place we will object. The expert may testify only to what constitutes “grooming”. An examining physician may testify not that the child was abused but that the child’s physical condition was consistent with the abuse described.
In general trial courts have great discretion regarding expert witnesses. But unfortunately, there is a lack of consistency in the appellate courts which has created a guessing game for defense lawyers as to who may be qualified as an expert and what “scientific” evidence may be found to be relevant and reliable.
Extraneous Offenses
In extraneous offense is any crime or bad deed not described in the indictment of the subject case or an offense described in the indictment but which occurred outside of the statue of limitations. Under State v. Rogriguez, a Defendant is not entitled to notice of other incidents of the same type alleged in the indictment if they occurred within the statute of limitations: the problem for defense attorneys is to learn, how many offenses are alleged in the indictment – and when they were alleged to have occurred. Every instance of the same type is a separate crime and may be prosecuted in separate trials.
Extraneous offenses are important since they form a major component of the State’s case in sex offense prosecutions. Article 38.37 of the TX Code of Criminal Procedure provides that evidence of other crimes committed by the Defendant against the child victim of the subject case will be admitted to prove 4 things:
- the state of mind of the Defendant
- the state of mind of the child
- previous relationship between Defendant and child
- subsequent relationship between Defendant and child.
In a child sexual abuse case, esp. in an indecency by contact case, extraneous offenses most commonly become admissible on the issue of intent. If the specific intent cannot be inferred from the act itself, evidence of extraneous acts may be admitted to prove that intent. If we put on defensive testimony or evidence that the contact or exposure was accidental or innocent, the State can use evidence of extraneous acts to show the intentional nature of the charged offense.
While Rule 404 (b) does not allow the use of extraneous offenses to prove the character of a person, the State can use extraneous offenses to rebut defensive theories of retaliation or to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of accident. In other words, the State cannot use evidence of extraneous bad acts to how that you have bad character and therefore likely committed the charged offense – but they can use it for just about everything else.
Extraneous are generally admissible to rebut a “frame-up” defense – “I’m the victim of a conspiracy” but not admissible to rebut a “fabrication” defense – “It’s all a pack of lies.” When a Defendant begins by stating that he does not have the character flaws that would cause him to sexually abuse a child the State can introduce extraneous offense evidence to rebut the defensive theory presented. If a Defendant states that he could not have committed the alleged offense for lack of opportunity, the State can introduce extraneous evidence that the Defendant molested others under almost identical circumstances – in order to rebut the defensive lack of opportunity theory. If the State can show that Defendant has committed similar assaults against unrelated children, an affirmative defense allegation that the victim of the subject case fabricated her claim is less likely to be true. And by showing the victim’s allegations are “less likely” to be fabricated, the extraneous evidence rebuts the defensive claims and has logical relevance aside from character conformity.
The Court of Criminal Appeals has steadily broadened the circumstances where extraneous offenses may be admitted in a child abuse case. If evidence has relevance for a reason other than character conformity the extraneous evidence will likely be found to be relevant. The Houston Sex Crimes Defense Attorneys at The Haggard Law Firm will counteract this tendency by following any adverse relevancy ruling with a Rule 403 objection; as the relevancy window widens, the Rule 403 balancing act becomes even more important.
Election of the State
This is a very old rule recognized by Texas courts since 1870! What this rule refers to is the requirement that, where the State of Texas has pled one single offense yet the evidence shows more than one offense [of the same type of unlawful conduct described in the indictment], in these cases the State must elect or choose that one particular incident upon which it relies for conviction – upon request of the attorney for the Defendant.
There are several reasons why we request that the State make an election: this allows us to distinguish the offense relied upon for conviction from an extraneous offense admitted for limited purposes; it requires a jury to focus as a body on whether the State has proved a specific incident rather than convicting for being a criminal generally; it allows us to focus our defense on the one particular incident that the State will rely upon for its conviction. But Texas law does not require the State to elect unless we make a request. We file our Motion to Elect long before Trial asking the judge to order the State to distinguish, long before it rests its case in chief, the particular incident it will rely upon for conviction.
We are also entitled to an instruction charging the jury to consider only the elected act(s) in deciding guilt and limiting the jury’s consideration of the other unelected acts to the purposes for which they were admitted. This is extremely important for, unless the jury is instructed to reach a verdict on a particular alleged incident, the State’s election may be rendered ineffective and the jury may not be considering the incident for which the grand jury indicted the defendant. Failure to require election is however now only constitutional error, no longer certain reversible error.
Jury Instructions
As is true with all criminal offense litigation, our clients are entitled to give instructions to the jury that present all defensive issues and lesser included offenses raised by the evidence. The judge is obliged to instruct the jury on all theories that we raise regardless of their strength or credibility. In child abuse offenses there are several areas of special importance that we pay close attention to when in trial on these cases.
Minors Who Lie About Their Age
The fact that many minors convincingly lie about their age is no longer a valid defense. In Texas, the “mistake of fact” defense is no longer available regarding the age of the child in a sex abuse case with a minor. The burden is NOT on the State to prove that the Defendant knew the victim was underage. Johnson v. State, 967 s.w. 2D848 (Tex.Crim.App. 1998). There used to be an affirmative defense for a Defendant who in good faith reasonably believed the Complainant to be 18 years of age of older but this defense no longer exists.
PUNISHMENT ISSUES IN CHILD ABUSE CASES
There are certain sexual offenses for which judge-granted probation is not an option. There are also limitations on how frequently a judge can grant deferred adjudication for certain other sexual offenses.
But, once an offender has been granted probation, there are special terms that can be negotiated in sexual offender cases, such as child-safety zones or participation in sex offender treatment programs.
One important aspect of probation in sex offender crimes to consider is that the term of probation can be increased for sex offenders to more than the ten-year limit found in other types of community supervision. The thinking behind this is more that – by longer terms of probation sex offenders will be “managed” than that they will be “rehabilitated”. While the ability to custom tailor terms of probation for sex offenders makes it more attractive for prosecutors, there are collateral consequences of a conviction coupled with probation – such as invasive psychological testing – that the experienced sex crimes defense attorneys at The Haggard Law Firm will consider before recommending it to some of our clients.
3g Offenses
If your offense is a 3g offense, only the jury can recommend probation (if you are found guilty), unless the child is under 14 and the offense happened after Sept. 1, 2007; see below. 3g offenses are all sexual assaults, indecency with a child, and sexual performance by a child.
There are limits to even these: The 80th Legislature, in House Bill 8, limited the availability of jury-granted probation for child sex abuse offenses in the following manner: If the victim in a child sex abuse offense was younger than 14 at the time the offense was committed, the defendant is not eligible to receive probation from a jury that has found him guilty. [This applies only to offenses committed on or after September 1, 2007; if any element of the offense occurred before that date the entire offense is considered to have been committed before Sept. 1, 2007 and thus the above law does not apply.]
The Texas sex crimes lawyers at The Haggard Law Firm use our experience and knowledge of past practices of judges and juries in Houston and our other counties of practice in deciding whether to waive a jury trial in order to try to obtain deferred adjudication probation from the judge:
Deferred Adjudication
Although the judge may not grant regular probation but only a jury [if the child is not under 14, see above], the judge may under the statute grant deferred adjudication in these 3g offenses. This ability of the judge to grant deferred adjudication does not depend on the child’s age but it IS limited: If the defendant has had a previous probation for one of the 3g offenses or other similar sexually-oriented offense; in these instances, a judge may not grant deferred adjudication. The judge must also make a finding in open court that placing the defendant on community supervision is in the best interest of the child.
As a result of this House Bill 8, defendants in MOST sex offense charges will NOT be eligible to receive probation from a jury in the event they are found guilty but will ONLY be eligible for deferred adjudication upon a plea of guilty or no contest to a judge. What this means for our clients is that, where we are vigorously contesting guilty or innocence, or where our clients are not eligible for probation from either a jury OR a judge [due to a past probation in a sex offense case] – we will recommend a jury trial.
The judge can order mental health treatment as a condition of probation, whether regular or deferred. However, if the victim is a child, then the judge MUST require sex offender counseling as a condition.
The minimum term of deferred adjudication for any 3g sexual offense is five years.
TEXAS “ONLINE SOLICITATION OF A MINOR” STATUTE IS NOW A VOIDED LAW
In 2013 the Court of Criminal Appeals struck down a part of the Online Solicitation of Minor Statute, Texas Penal Code Sec. 33.021(b) as unconstitutional. If you or someone you know was convicted of “Online Solicitation of a Minor” you were required to immediately register as a sex offender, and may be serving prison time or on probation. The Harris County District Attorney’s office is handling review of each Online Solicitation conviction on a case-by-case basis. Contact the attorney who originally handled your Online Solicitation case to find out what type of relief you may be eligible for under this now-voided law.
The Haggard Law Firm accepts selected criminal defense cases in Harris, Fort Bend, Galveston, Brazoria, Montgomery, Matagorda and surrounding Texas counties. Affordable representation; payment plans arranged in some cases. We represent clients in all Misdemeanor Courts, Felony Courts, Juvenile Court and Federal Court.~
