Fort Worth Criminal Defense

Is Sleep Sex a Real Thing and How Can it Apply to Sexual Allegations?

You 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.

Are there any options for my child short of going to court? Many parents ask this question after finding out that their child has been referred to the juvenile system. For a lot of kids who are in trouble for the first time, there is a great option available: Deferred Prosecution Program (DPP). In Tarrant County, DPP is used quite often. This article will answer all of your questions about DPP.

What is Tarrant County's Juvenile DPP?

DPP is a form of informal probation. The juvenile is supervised by a probation officer and has conditions of supervision to abide by during the period of DPP. But unlike formal probation, DPP does not require court action.

How long does the Juvenile Deferred Prosecution Program last?

DPP can, initially, be up to 6 months in length. Most of the time in Tarrant County, a juvenile will receive a 6-month term. Under the provisions of the Texas Family Code, DPP can be extended for an additional 6 months if necessary. However, DPP cannot last longer than 12 months total.

What types of cases are eligible for DPP in Tarrant County?

DPP can be offered in any case, regardless of the offense. Whether DPP is appropriate for a given juvenile depends more on the kid’s prior history with the legal system and the facts of the case than it does with what the offense is. However, a child has a better chance of receiving DPP in a misdemeanor or a minor felony case than for a serious felony.

At what point in the process can DPP be offered to a juvenile?

In Tarrant County, there are four points in the process where DPP can be offered to a juvenile. The first of these is by the intake probation officer during the intake process. Many times, if the case is appropriate for DPP, the probation officer will offer it during the intake appointment. This is one of many reasons why it is important for the family to attend the intake appointment with the probation officer. If DPP is accepted, then the juvenile will begin supervision and the case will not be referred to the prosecutor.

The second point where DPP can be offered is after the case is referred to the District Attorney. Once the prosecutor has reviewed the case, she can decide to offer DPP. If it is accepted at this point, the case is sent back to the juvenile probation department and supervision will begin. The prosecutor can also offer DPP after the case is filed and before it goes to court. If this happens, then the charges are dismissed and DPP supervision begins.

The last opportunity for a DPP offer is in court. In Tarrant County, this is rare, and only happens if the probation officer and prosecutor both refuse to offer DPP. At court, prior to any evidence being heard, the juvenile and his attorney can ask the judge to give DPP. The judge has discretion to grant the DPP or not.

Are charges still filed in a juvenile DPP case?

Typically, charges are not filed in a DPP case. If the DPP is agreed upon after charges have been filed, the charges are, at that point, dismissed.

What are the typical conditions of supervision?

The conditions of supervision on DPP are generally the same as for probation. These include go to school, don’t commit crimes, and obey the curfew set by the parents. In some cases, the conditions may also include appropriate counseling or restitution.

What happens if the juvenile is not successful in completing DPP?

If a juvenile who is on DPP violates the terms of his supervision, the case could be reopened and reviewed. If the original DPP was given by the probation officer, then the case will be sent to the prosecutor upon violation. At that point, the charges can be filed or the prosecutor can offer a second term of DPP. If the original DPP was given by the prosecutor, then upon violation the charges can be filed and the case can go to court. The judge can give a second term of DPP at this point if he chooses.

What happens if DPP is successful?

If the juvenile is successful on DPP, then the case is closed out with no adjudication on the juvenile’s record. The juvenile may be able to his record sealed after a period of time.

DPP is a wonderful option that is available to juveniles who have never been in trouble before or who are referred for minor offenses. It is up to 6 months of informal probation. If the child is successful on DPP, then the case will be closed and no charges will ever be filed. DPP is an alternative to going to court and being on formal probation. For many kids, this will be a great opportunity to handle their case in a very favorable manner. If DPP is offered, it is worth considering and discussing it with your attorney.

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.

In Tarrant County, the Juvenile Probation Department is the intake agency for the county. This means that when a police officer files a case against a juvenile, it goes to Juvenile Probation before being sent to the District Attorney’s Office. The common practice is for cases to be referred by law enforcement officers without making an arrest. When this happens, there is a specific process in place with certain tasks that the juvenile intake officers must perform before a case is referred to the prosecutor. This article will walk you through this often-misunderstood process and explain why those juvenile probation officers do what they do.

Overview of the Juvenile Intake Process in Tarrant County, Texas

When a case is first received by the Tarrant County Juvenile Probation Department, it is assigned to an intake unit. There are three intake units within the department. Once it is received by the intake unit supervisor, it is assigned to a court intake officer. The court intake officer is responsible for completing several tasks prior to court, including: conducting an intake appointment, administering assessments, making sure the juvenile is fingerprinted and photographed, and preparing a social history. The intake officer must also make a decision about what the next step in the process should be.

The Intake Appointment

The intake appointment is, arguably, the most important piece of the intake process in Tarrant County. It is also the part that is the most confusing to families and defense attorneys alike. While families and attorneys can, and do, refuse to participate in the intake appointment, nothing good comes from refusing. To the contrary, in some cases, cooperating with the probation officer by showing up for the intake appointment can help resolve the case without a referral to the prosecutor or court action. The defense attorney can be at the intake appointment if he wishes, but is not required to be.

During the intake appointment, the probation officer will explain the process to the juvenile and his family. They will also explain the charges and sometimes read a summary of the police report. They are not allowed to give a copy of the police report to the family. The intake officers do not ask the juvenile about the offense. Next, the officer will get some background information from the family. This information will include a family history, school history, and information on any other agencies that the family has been involved with. The officer will also ask about substance abuse, mental health, any prior hospitalizations, current and past medications, behavior at school and home, and family criminal history. The purpose in gathering all this information is to put together a social history, which is a comprehensive report, on the child that will guide the court and the attorneys involved when making decisions about the juvenile and the case.

Juvenile Assessments - PACT & MAYSI

During the intake appointment, the probation officer will also administer a couple of assessments to the juvenile. These are required, but the defense attorney can decline the assessments. The two assessments, which are given are called the PACT and the MAYSI.

The purpose of the PACT assessment is to determine the child’s risks to reoffend and needs for services. The results of the PACT assessment are included in the social history that is given to the court and attorneys. The MAYSI is designed to screen for problems with mental health, substance abuse, and/or suicide. If the results of the MAYSI show a concern for suicide, a no-harm contract will be completed with the child, and the officer will refer that child for services to help with the suicidal tendencies.

Fingerprinting and Photographing

The Texas Department of Public Safety (DPS) requires anyone who is charged with a crime, juvenile or adult, to be fingerprinted and photographed. This information is submitted to DPS and is included in the person’s juvenile or criminal history. When a person is arrested, these two things are done as a part of the book in process. However, when a juvenile case is referred to the Tarrant County Juvenile Probation Department without an arrest, the probation officer is required to get the fingerprinting and photographing done. This is usually done during the intake appointment. It entails the officer walking the child to the juvenile detention center where the fingerprint and photograph office is located and having it done. This is one part of the process, which cannot be waived or refused. It is required by the State of Texas in every case.

Probable Cause Decision Regarding the Case

The last aspect of the intake process is for the probation officer to make a probable cause determination on the case and decide what to do with the case. There are certain offenses that are considered “mandatory referrals” in Tarrant County. This means that the probation officer is required to refer the case to the prosecutor for review. The mandatory referral offenses are the more serious offenses and are usually felonies.

For offenses that are not mandatory referrals, the probation officer is responsible for making a decision about what to do with the case. The officer can, of course, refer a case to the prosecutor for review even if it is not a mandatory referral. However, they have other choices too. They can dismiss a case or offer the juvenile Deferred Prosecution Program (DPP), which is an informal probation period without charges being filed. In some cases, the officer may determine that if the child pays restitution, then the case can be closed out without any further action. If the child and family does not cooperate with the intake process, the officer is required to refer the case to the prosecutor. However, if the family does participate, they may find that they can take care of their case during the meeting with the intake officer, which is definitely to the child’s benefit.

Additionally, the officer may, and many times will, make referrals for services to the family based on their needs. These referrals could be for any number of resources available in the community. They could include referrals to MHMR, school programs, and counseling, to name a few.

The Tarrant County Juvenile Probation Department’s intake process is misunderstood many times by families and attorneys. It is not an adversarial process. The intake officers are neutral parties charged with gathering information, preparing social history reports, and making referrals for services. They are required by law to perform a few tasks, such as fingerprinting. However, their primary purpose is to help the child and the family navigate a system which may be unfamiliar and confusing. If you and your child are contacted about meeting with an officer for an intake appointment, it is preferable for you to cooperate so that you may have access to all possible options in your child’s case.

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.

How Far Does the Trial Courts Discretion Go in Determining Whether to Hold a Pretrial Evidentiary Hearing?

On September 21st the Texas Court of Criminal Appeals issued a decision on the oil tycoon heir Albert Hill III’s criminal appeal. The question the Court faced was whether it was in the trial court’s discretion to conduct a pretrial evidentiary hearing on Hill’s motions to quash and dismiss based on prosecutorial vindictiveness. The Court determined that it was within the trial court’s discretion to conduct such a pretrial evidentiary hearing and that discretion was not limited by the defendant meeting “a certain threshold evidentiary requirement.”

Court Opinion: State of Texas v. Albert Hill (Tex. Crim. App. 2016)

The Facts | Trial Court Finds Dallas DA's Actions Improper

Appellant Hill is the great-grandson of legendary Dallas oil billionaire H.L. Hunt and the events surrounding the indictment dealt with a multi-million dollar trust litigation between Hill and his father. Hill and his wife Erin were indicted in 2011 for making false and misleading statements in order to obtain a $500,000 mortgage from Omni American Bank. The indictment came shortly after Hill won in the trust litigation against his father. Prior to the indictment (but after Albert Hill's victory in the trust litigation) Hill’s father’s attorney, Michael Lynn delivered a memo to the Dallas County District Attorney’s Office which alleged various offenses committed by Hill and his wife. Hill challenged these charges by filing a motion to quash the indictment and a motion to dismiss. Hill argued that the District Attorney, Craig Watkins, was under the influence of his disgruntled father as well as Lisa Blue Baron, one of Hill’s attorneys in the trust litigation case that had just filed a lawsuit against Hill seeking several million dollars in legal fees.

Some items of interest that the court noted were:

• Lisa Blue Baron exchanged several phone calls and text messages with Watkins leading up to the indictment;
• Michael Lynn’s law partner donated $48,500 to Watkins’ campaign prior to the indictment;
• Lisa Blue Baron made a $100,000 donation to SMU LAW in Watkins’ honor after the indictment;
• Lisa Blue Baron also held a fundraising event for Watkins’ campaign at her house and made a $5,000 donation to the campaign.

The trial court held an evidentiary hearing on Hill’s motions and granted both the motion to quash and the motion to dismiss.

The Court of Appeals Reversed the Trial Court's Decision

The Fifth Court of Appeals reversed the trial court's dismissals holding that the trial court “erred in conducting a hearing on Hill’s motion to dismiss.” The State argued that the trial court should not have held a pretrial evidentiary hearing because Hill failed to prove, with evidence, a prima facie case of prosecutorial misconduct and vindictiveness. The Court of Appeals stated that before a pretrial evidentiary can be held for a defendant claiming a violation of his constitutional rights, the defendant must “present facts sufficient to create a reasonable doubt about the constitutionality of his prosecution.” The Court of Appeals found that Hill did not sufficiently meet this standard.

The Court of Criminal Appeals Disagrees with the Court of Appeals, holds that Trial Courts Have Sound Discretion to Conduct a Pretrial Evidentiary Hearing

1. Article 28.01 - The CCA points to Article 28.01 in determining that the trial court had the discretion to hold a pretrial hearing on Hill’s motions to quash and suppress. Article 28.01 §1 provides that a trial court “may set any criminal case for a pre-trial hearing” and that some of things that the pre-trial hearing shall be to determine is the “pleadings of the defendant,’ ‘exceptions to the form or substance of the indictment,’ or discovery.’” Article 28.01 §1(1), (2), (4), (8). Additionally, while Article 28.01 does not expressly provide for an evidentiary hearing on a motion to dismiss like it does for a motion to suppress, the Court determined that it would be a misapplication of the rules of statutory construction to decide that oral testimony cannot be used in a pretrial hearing to resolve any other issue raised.

2. Case Law - The Court supported its Article 28.01 decision with the Court’s decision in Neal v. State which held that a defendant is required to “preserve a complaint of vindictive prosecution by filing a pretrial motion to quash and dismiss.” 150 S.W.3d 169. With that decision in mind the Court said “it would make no sense to limit the trial court’s discretion to hold an evidentiary hearing on such motion.”

The State pointed to federal case law that provided defendant must make a prima facie case that raised a reasonable doubt. However, these cases dealt with the issue of whether the trial court erred by denying a pretrial hearing. Thus, the Court stated that this case law is not on point in Hill’s case and thus are not controlling on this issue, and do not persuade the Court to hold otherwise.

Decision of the Criminal Court of Appeals | The Trial Court’s Discretion is Not Limited

The CCA determined that Article 28.01 has no limiting factor on the judge’s discretion to hold a pretrial evidentiary hearing based on any threshold evidentiary standard. Accordingly, the trial court did not err in conducting the pretrial evidentiary hearing in Hill’s case but instead acted within its bounds of sound discretion.

Recently, a friend asked me if it was legal for individuals to dress as clowns and scare the public. He also wanted to know what would happen if he were frightened by one of these clowns and shot the clown. While not asking the latter in complete seriousness, these questions do bring up potential criminal law issues.

Is it Legal to Dress as a Clown in Public?

There’s no state law that we’re aware of that makes dressing up like a clown in public per se illegal.

The only potential laws that may be applicable to these situations would be individual city ordinances. A search of city codes in a handful of Texas towns around the Metroplex reveals no ordinance specifically prohibiting dressing like a clown in public. The only codes we are able to find related to costumes primarily had to do with a prohibition on costumes which fail to cover private areas in regards to sexually oriented businesses.

While dressing like a clown doesn’t appear to be per se prohibited, there is certainly the risk of breaking other laws while dressed as a clown. In addition, dressing like a clown in public and creating unnecessary alarm or panic could be deemed as disorderly conduct.

Texas Penal Code, Chapter 42 lays out a list of behaviors that could constitute up to a Class B misdemeanor. Class B misdemeanors can carry a penalty of up to 6 months in jail and up to a $2,000 fine. Sec. 42.01 (a)(2) states that a person commits an offense [of disorderly conduct] if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace. An offense of this nature is a Class C misdemeanor and carries the possibility of up to a $500.00 fine.

Can I use Deadly Force Against the Clown?

Let’s start with the simple answer of “NO”. While individuals may be suffering from coulrophobia (the fear of clowns), this condition does not give you a right to use deadly force – or any force for that matter – against an individual simply because he or she is standing in public dressed as a clown.

The more complex answer of “maybe” would have to do with the use of force for self-defense purposes. Section 9.31 of the Texas Penal Code provides for a justifiable defense at the time of trial for self-defense, so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. Under this law, the actor must reasonably believe that the force is reasonably necessary to protect against the other’s use or attempted use of unlawful force. Simply observing a clown, with no weapon or threat to use a weapon, provides no grounds to use force – much less deadly force – against that clown.

In addition, the Penal Code does establish that force may be used to protect one’s own property. A person in “lawful possession” of real property or personal property is justified in using force if “the actor reasonably believes the force is reasonably necessary to prevent or terminate the other’s trespass on the land…” However, the use of deadly force to protect one’s own property is limited. “A person is justified in using deadly force against another to protect land or property if (1) he is justified under TPC §9.41; (2) he reasonably believes using the force is immediately necessary to prevent commission of arson, burglary, or robbery; and, (3) the actor reasonably believes that the land or property cannot be protected or recovered by any other means [such as by calling law enforcement]. Tex. Penal Code Section 9.42.

Using force for self-defense purposes is a serious response to dangerous and threatening situations – but certainly not an appropriate response to being “creeped” out.

Bottom Line | Do Not Shoot the Clown (Yet)

Dressing up as a clown and causing fear amongst the public is a stupid (and perhaps even illegal) idea. Our attorneys would advise you strongly against it. You certainly place yourself in the position of having your behavior scrutinized by law enforcement for any potential illegal activity. And, if you’re simply afraid of clowns, do your defense attorney a favor and please do not shoot them.  BUT...If the clown lays a hand on you or chases you through a park, all bets are off. You may use force against the clown to avoid an assault.