Texas Sex Crimes Defense by Howard Lotspeich Alexander & Williams

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

United 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.

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

Gonzales 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.

Texas 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.

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.

This opinion reflects the personal views of the author and should not be attributed to any agency or office.

There has been a lot of media attention recently on rape victims and the prevalence of rape in the military.  As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience.  However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an "epidemic" in our ranks.  Does sexual assault occur in the military?  Absolutely.  But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large?  No.  And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug?  Certainly not!

One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment.  Another major difference is if the grand jury says there isn't enough evidence, the District Attorney can't go forward.  Neither of these checks and balances are found in the military justice system.

Instead, unit commanders (called Convening Authorities - usually Colonels and higher) decide whether a case should proceed to trial.  For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.

The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander.  This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial.  The easiest decision is to send it forward.

But can you blame them?  What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for "rapists" in the military?  Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as "hiding rapists" or being "soft on sexual assault?" No way!  They are going to take the easy way out.  The politically palatable way out.  They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting "the military justice system runs its course."

Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit.  Many do.  But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit?  Not any more.  And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can't you get the conviction?  The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can't change the facts of the case, the rules of evidence, or the burden of proof.  These cases are seldom black and white.  And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.

With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused.  What happened to "innocent until proven guilty?" Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court.  This is terrible and antithetical to our criminal justice system.  We can't simply jettison the Constitution when it is politically appealing.

Many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight.  Sometimes justice means that a person is convicted of sexual assault.  Sometimes it doesn't.  But this prejudgment of military defendants (or any defendants) has to stop.  By law, an accused is innocent until a verdict of guilty is returned and no sooner.