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Criminal Defense Attorney for Indecency with a Child
Indecency with a Child by Exposure or Sexual Contact
These are delicate and complicated cases to defend. Sexual accusations, including indecency, can be devastating in every aspect of your life. The presumption of innocence in our legal system may do little to protect someone accused. Indecency with a child, like other sexual allegations, is one area where accused people often find they are put in a position where they have to prove their innocence.
You cannot allow embarrassment or fear to keep you from finding and meeting with a criminal defense attorney, immediately. Every minute you wait, there is potentially more damage being done to your life and potentially more false evidence being collected to prosecute you. Early on in an Indecency with a Child case, investigation and legal protection is essential. Fort Worth Criminal Defense Attorney James Luster will handle your Indecency with a Child case with discretion and compassion. He defends these cases from a powerful position of extensive experience and success. James will fight to: keep you out of jail; keep your reputation intact; and keep your life from falling apart. His law office is a safe place free of judgment.
Learn more about Attorney James Luster...
What is on this page:
- Tarrant County Local Practices
- Texas Penal Code 21.11
- Punishment and Sentence
- Sex Offender Registration for Indecency
- Possible Outcomes in Indecency Cases
- Glossary of Terms and Abbreviations
- Evidence
- Double Jeopardy
- False Allegations
Tarrant County Indecency Cases
Local Practices
Felony cases in Tarrant County are prosecuted by the Criminal District Attorney’s Office led by Sharen Wilson. In the Tarrant DA’s office there is a special group of prosecutors that handle only cases in which children are the victims. Some of the Indecency with a Child cases are prosecuted by this special group of prosecutors. Even if your case is not assigned to this special group of felony prosecutors, sexual abuse allegations are still only handled by the more experienced assistant district attorneys. This is one reason you need to have an experienced criminal defense attorney on your case.
Many indecency cases are won before the case is ever "indicted." Meaning, your lawyer convinces the police, prosecutor, or grand jury that the case should not go forward. A lawyer usually accomplishes this by enlisting the help of many local experts and investigators. This is another area where having an attorney that knows the Tarrant County local practices can be a great advantage in your defense. Lawyers that often defend Indecency with a Child (Exposure or Sexual Contact) in Tarrant County know the experts that are considered to be credible. For instance, your lawyer may decide to have a specialized psychological test done to show that you do not have the psychological profile of a sex offender. There are a lot of psychologists and counselors offering this kind of service. However, the Tarrant County District Attorney’s Office has a relatively short list of people they are familiar with and trust. So, if your lawyer gives the prosecutor a psychological report from someone not commonly relied upon in Tarrant County, then the prosecutor will probably not give the report as much weight. On the other hand, if your criminal defense attorney uses one of the experts that has a good reputation in Tarrant County, then the prosecutor will likely consider the results more seriously. The lawyer defending your Indecency with a Child charge needs to have a well-established network of local experts and investigators.
Bonding Out of Tarrant County Jail on Indecency Charges
If you want to post bond after being arrested for Indecency with a Child, you need to consider how a criminal defense lawyer can help. First, the bond for these charges is usually set by a "magistrate." These magistrates are often city (municipal) or justice of peace judges. Tarrant County has a "bond schedule" that lists recommended amounts to set a bond. These judges often disregard these bond recommendations and set bonds that are too high. This may be because these judges, without any actual evidence, assume someone charged with a sex crime is guilty and should be locked up. Your lawyer can file a motion or what is known as a "writ of habeas corpus" requesting that the court set a reasonable bond in your case. This could save you hundreds, if not thousands, of dollars. You will need to save your resources to construct a good defense in your indecency case.
When someone is released on bond for Indecency with a Child they will have what are called "bond conditions." These are strict rules that you must follow while you are waiting on your case to be over. These bond conditions could kick you out of your house or keep you away from your children. The conditions might make it impossible for you to keep your job. The criminal defense lawyer for your indecency case can file a motion or "writ of habeas corpus" to request that the conditions of bond be changed or removed. If you violate the bond conditions (rules) the court can "forfeit" or revoke your bond and re-arrest you. So, it is important you have a lawyer on your case before you bond out, so he can help you stay out of jail. In some cases, the court can enter a "Protective Order" in connection with an Indecency charge. This is similar to bond conditions, but can cause additional hardships. Whether you have "sex offender" bond conditions or there is a protective order in place, you need to explore your options with a criminal attorney.
Tarrant County Lawyer
James Luster is a Tarrant County criminal defense lawyer with an office in downtown Fort Worth, only a few blocks from the criminal courthouse (Tim Curry Criminal Justice Center). He has a lot of experience defending sex crimes, including Indecency with a Child charges. Before he became a defense lawyer, he was a prosecutor in the Tarrant County District Attorney’s Office. Before prosecuting in Tarrant County he was a prosecutor in Lubbock County, Texas. He knows these cases from both sides. He knows the local ins-and-outs. He knows all of the players at the courthouse and police departments. What may be just as important as what James knows, is the prosecutors know him.
The prosecutors know that James is a good trial lawyer, and he is not afraid to take a case to trial. This means the prosecutors are not going to waste time trying to bully or pull one over on James. He has a reputation for being honest as a prosecutor and defense attorney. This means when he comes in to talk to the prosecutors about your Indecency with a Child charge, they can trust what he tells them and know that he is not bluffing. Before you get a lawyer for your case, consider how important it is to have a local Tarrant County criminal defense attorney.
Texas Penal Code 21.11
Sexual Contact (Fondling)
Under Section (a)(1) of the Texas law, someone commits the crime of Indecency with a Child if the person has "sexual contact" with the child (under 17 years old) or causes the child to engage in "sexual contact." Sexual contact means doing any of the following for a sexual purpose:
- touching a child’s anus, breast, or gentials (over or under clothes); or
- causing a child to touch someone else’s anus, breast, or genitals (over or under clothes).
To be clear, this crime is either sexual touching by the adult or by a child. "Penetration" is not required for a conviction of this charge. If someone is accused of penetrating the genitals or anus of a child, then the charge will likely be filed as Sexual Assault. Also note, under the Penal Code this is called "sexual contact," but sometimes you will hear or see the term "fondling" used instead. This terms was once used in Texas law, but the law changed to be more specific. Even if the word "fondling" is used in your court documents, the charge is Indecency by Sexual Contact (Second Degree Felony).
Exposure
Under Section (a)(2) of the Texas law, someone commits the crime of Indecency with a Child if the person does the following for the purpose of creating sexual arousal or gratification:
- Exposes their anus or genitals when they know a child is present; or
- Causes a child to expose the child’s anus or genitals.
This crime is usually referred to as Indecency by Exposure. If a person does not have any prior criminal history, then this charge is a Third Degree Felony.
Under the same section of the Penal Code, there is an "affirmative defense" based on age. This is part of the Texas "Romeo and Juliet" laws that allow for some flexibility even if someone is below the age of consent. An affirmative defense to a criminal charge beats the case at trial if your criminal defense attorney can prove certain facts or circumstances. It is an affirmative defense to Indecency with a Child if:
- The person charged was not not more than three years older than the child (victim);
- The person charged and the child are of the opposite sex (no homosexual conduct);
- The person charged did not use duress, force, or a threats against the child;
- The person charged was not already required to register as a sex offender.
This affirmative defense, along with all other issues in your case, should be discussed with a criminal defense attorney as soon as possible. Even if you think these facts apply to your situation, do not speak with the police, CPS, or anyone about it. If you are wrong, or if there are false allegations of force made later, the statements you make will likely damage or destroy your defense.
Statute of Limitations?
Currently, there is no statute of limitations for Indecency with a Child – either by fondling (sexual contact) or exposure. However, this is a topic you need to speak with an experienced criminal defense attorney about, because the statute of limitations may be different depending on the "offense date" alleged in the indecency charge. Raising a defense based on the statute of limitations expiring is something your lawyer must consider and possibly address before trial. An inexperienced, or sloppy attorney, may cause you to waive Statute of Limitations defense, and you may have a conviction based upon "consenting" to being tried outside the statute of limitations for an older charge of Indecency with a Child.
The Statute of Limitations for Felonies in Texas can be found in Title 1 of the Texas Code of Criminal Procedure in Chapter 12. Currently, Section 12.01 says there is no limitation for prosecution of indecency with a child under Section 21.11, Penal Code. Not long ago, the statute of limitation was only 10 years. Effective on September 1, 2007, the Texas Legislature changed the SOL during the 80th Regular Legislative Session pursuant to House Bill 8.
Prison Sentences
If a person is convicted of Indecency with a Child, they can be sent to prison by either the judge or jury. A sentence may result from a plea of "guilty" or getting convicted at trial. A person’s criminal history can increase the amount of a possible prison sentence. If someone does not have any criminal history, then the possible sentences are:
- By Sexual Contact - Second Degree Felony - 2 years to 20 years in prison; up to a $10,000 fine.
- By Exposure - Third Degree Felony - 2 years to 10 years in prison; up to a $10,000 fine.
If someone has prior felony convictions or is already required to register as sex offender, then the prison sentence for Indecency with a Child can be much harsher. The punishment for "Repeat" and "Habitual" felony convictions apply to these charges. This means, if you are convicted of Indecency by Exposure (Third Degree Felony), you could be facing:
- 2 years to 20 years prison if you have gone to prison for 1 felony;
- 25 years to 99 years or Life if you have gone to prison two separate times for 2 felonies.
- Automatic Life sentence if you have prior conviction for:
- Sexual Performance of a Child
- Possession of Child Pornography
- Child Sex Trafficking
- Continuous Sexual Abuse of a Child
- Indecency with a Child
- Sexual Assault
- Aggravated Sexual Assault
- Prohibited Sexual Conduct
- Kidnapping for Sexual Abuse
- Burglary to Commit Sexual Abuse
- A crime in another state that is substantially similar to any in this list.
Understanding how criminal history may increase the sentence or punishment for Indecency with a Child can be difficult. A criminal defense attorney should know how the sentencing law works in Texas. Perhaps just as important, your lawyer needs to know how the prosecutors in your county usually handle these cases. James Luster has his law office in downtown Fort Worth, and he knows the local practices in Tarrant County.
Probation or Deferred Adjudication
Eligibility for Probation or Deferred Adjudication
If a person pleads "Guilty" or "No Contest" to Indecency with a Child, the judge can place the person on Deferred Adjudication Community Supervision (Probation) instead of sending the person to prison. To sentence to Deferred Adjudication, the judge must have the opinion that the best interest of society and the person charged will be served. Deferred Adjudication means first the judge must hear evidence and find that the evidence substantiates the a person’s guilt. Then the judge may "defer further proceedings" without entering an adjudication of guilt (i.e. finding the person guilty) and place the defendant on community supervision (probation). The judge can do this for Indecency with a Child regardless of the ages of the alleged victim or there person accused, ONLY if the judge also makes a finding in open court that placing the person accused on community supervision is in the best interest of the victim.
NOTE: A person cannot be placed on Deferred Adjudication probation for Indecency with a Child if there person has previously been placed on probation or deferred adjudication for a felony sexual offense. Eligibility for probation or deferred adjudication can be complicated. Meet with a criminal defense attorney to get a full understanding of sentencing issues in your case.
If a person is found guilty at trial, then a judge cannot place the person on probation if the person was convicted of Indecency by Sexual Contact (Penal Code 21.11a), even if the person has no criminal history. If a person has no criminal history, then the judge can place a person on probation for Indecency by Exposure (Penal Code 21.11b). If a person is convicted at trial of either Indecency with a Child charge (Fondling or Exposure), and the person has never been convicted of a felony, then a jury can sentence a person to probation UNLESS the victim was younger than 14 years old.
As you can see, eligibility for probation can be very complex. Unfortunately, even some attorneys do not have a clear understanding of criminal law in this area. Be sure the lawyer representing you understands and can explain the probation laws that relate to your situation.
Length of Probation
Generally, in any felony case the period of community supervision (probation) may not by more than 10 years. If someone is charged with Indecency with a Child, then the length of probation cannot be less than 5 years. This applies to the original probation sentence. However, if someone has problems on probation the judge can later extend the length of probation.
Any probation can be modified or revoked if someone violates the terms or conditions of the probation. However, if someone is on probation for Indecency with a Child, the court can also have a hearing to extend the probation. At this hearing if the judge decides that the person on probation "has not sufficiently demonstrated a commitment to avoid future criminal behavior and that the release of the [person] from supervision would endanger the public" then the judge can extend the period of probation for another 10 years. This means someone could be on probation for up to 20 years.
Conditions of Probation for Indecency with a Child
If a judge grants community supervision (probation) for Indecency with a Child there person on probation will have all of the normal probation rules (e.g. reporting to officer, no drugs or alcohol). Also, the judge will include as a rule of probation a "child safety zone." This means a person on probation for Indecency cannot:
- Supervise or participate in any program that includes as participants or recipients persons who are 17 years of age or younger and that regularly provides athletic, civic, or cultural activities; or
- Go in, on, or within 1,000 feet of a place where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility.
There may be some exceptions for young offenders or students at a primary or secondary school. The "Child Safety Zone" can sometimes be changed or lifted, depending on your circumstances. This is another area that a local attorney needs to be able to advice you on the practices in Tarrant County.
Someone on probation for Indecency must also attend psychological counseling sessions for sex offenders. This counseling must be with an individual or organization which provides sex offender treatment or counseling. The treatment or counseling program must be approved by the judge or the probation department.
The judge must require a person on probation for Indecency to register as a sex offender while on probation. The person on probation also has to give a DNA sample to the Texas Department of Public Safety. Texas DPS will use this DNA sample to include in their records, so the DNA profile can be searched for in the future.
Parole Law
Once someone is sent to prison, strict parole laws apply to this charge. Sometimes you will here this called "Agg Time." Indecency with a Child is what is commonly called a "3g" offense. 3g is a list of serious crimes contained in the Texas Code of Criminal Procedure (Article 41.12). The crimes on this list have the following parole eligibility rules:
- Not eligible until actual time in prison equals half of the sentence;
- Must serve at least 2 years - even if half of the sentence is less than 2 years;
- There is no "mandatory supervision," so the parole board does not have to grant parole.
As an example, if you get a 3 year prison sentence, you must serve 2 years before you are eligible to be released on parole. Even after the 2 years, it is not mandatory that you are released on parole, so may serve every day of your 3 year sentence. Another example, if you get a 10 year sentence, you must serve 5 years before you eligible to be released on parole. Once again, even after the 5 years, it is not mandatory for the TDCJ to release you on parole, so you may end up serving all 10 years of your sentence.
In Texas, "parole" means an inmate is released from prison before their entire sentence is served, and the released inmate has a lot of rules to follow and is supervised or monitored by a parole officer. If the released inmate breaks the rules, then they can be sent back to prison to finish what is left on their sentence. In the list above, we used the term "mandatory supervision." This is just like parole with a different name, but the law requires certain inmates to be released before their sentence is served - not people sentenced for Indecency with a Child.
It is harder to get parole on a sentence for Indecency with a Child, because it requires an "Extraordinary Vote" of the parole board before a person can be released. Once a person is eligible, then the whole board must vote on their release. At least two-thirds of the members or the board must vote in favor of the release on parole. Before the vote occurs, the prison system has to create a report to give the parole board that estimates the probability that the inmate would commit an offense after being released on parole. These rules and other parole rules can be found in Texas Government Code Chapter 508. These laws and rules are very specific and complex, so you need to talk with a criminal defense attorney about possible prison sentences and parole guidelines.
Sentencing Issues - Date of Offense and Stacking
Bonilla v. State, 452 S.W.3d 811 (Tex. Crim. App. 2015).
If someone is convicted of multiple counts of indecency with a child, the trial judge has discretion (power) to order the sentences to be served consecutively (stacked) as long as there is "some" evidence that the offenses occurred after September 1, 1997, which is the date of the Texas Legislature amended the Texas Penal Code allowing cumulation (stacking) of child sexual abuse offenses. In Bonilla, the appeals court said there was ample evidence that the defendant committed sexual abuse both before and after September 1, 1997, and the trial judge ordered consecutive (stacked) sentences.
The person convicted appealed on the grounds that the indictment (the charge) contained allegations from dates in 1995 and, therefore, the offenses occurred before the amendment date and the judge should not be allowed to "stack" sentences. The Criminal Court of Appeals determined that the trial judge has discretion (power) to cumulate (stack) sentences when the offense dates in the indictment and judgment are before September 1, 1997, but evidence exists that the offenses occurred both before and after the amendment date.
This is just an example of how complicated the sentencing issues can be in an Indecency with a Child case.
Sex Offender Registration for Indecency
Duty to Register for Indecency
Regardless of whether you are "convicted" or you are placed on Deferred Adjudication for Indecency with a Child, you will have to register as a sex offender according to Texas law and possibly Federal law. In Texas, if a person has no criminal history, and the offense of conviction is "exposure" then sex offender registration is required for 10 years after the sentence is served (i.e. incarceration, parole, or probation has ended). If a person has no criminal history, and the person is convicted of "fondling" or "sexual contact" then the registration requirement is for Life under Texas law.
Failing to register as a sex offender is a separate crime that a person can be sentenced to prison for. "Failure to Register" could result in either state or federal criminal charges being filed. All states in the United States have laws against failing to register, so you cannot avoid the registration requirement by moving to another state. Along with registration, a person convicted of Indecency with a Child will have restrictions on jobs, professional licenses, and where the person lives. The specific laws related to registering as a sex offender are complex, and you should consult a criminal defense lawyer about what requirements your case may carry.
Texas and Federal Requirement
Federal registration requirements differ from the Texas requirements. If someone lives in a state other than Texas, the person should consult a criminal defense lawyer to fully understand that state’s sex offender registration requirements for Indecency with a Child. This is a brief explanation of how the federal and Texas registration requirements differ.
Texas - Lifetime, Federal 15 years (Tier 1)
If someone is convicted in Texas Penal Code § 21.11(a)(1), Indecency with a child by contact where the victim has attained the age of 16 years but not the age of 17 years and:
- the touching did not involve the victim’s genitals;
- the touching involved the victim’s genitals but was done through the clothing; or
- the touching was not done
- by force,
- by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping,
- by rendering the victim unconscious,
- by administering a drug, intoxicant or other similar substance to the victim,
- by threatening or placing the victim in fear,
- with a victim that is incapable of appraising the nature of the conduct, and
- with a victim that is incapable of declining participation or communicating unwillingness to participate
Texas - Lifetime, Federal - 25 years (Tier II)
If someone is convicted under Texas Penal Code § 21.11(a)(1) Indecency with a child by contact where the victim has attained the age of 13 years but not the age of 16 years and:
- the touching did not involve the victim’s genitals;
- the touching involved the victim’s genitals but was done through the clothing; or
- the touching was not done
- by force,
- by threatening or placing the victim in fear that any person will be subject to death, serious bodily injury or kidnapping,
- by rendering the victim unconscious,
- by administering a drug, intoxicant or other similar substance to the victim,
- by threatening or placing the victim in fear,
- with a victim that is incapable of appraising the nature of the conduct, and
- with a victim that is incapable of declining participation or communicating unwillingness to participate
Texas - 10 years post discharge, Federal - No Duty to Register
If a person is convicted under Texas Penal Code § 21.11(a)(2) Indecency with a child by exposure and involved consensual conducted as defined by 42 U.S.C. § 16911(5)(C). This part of the federal law says, related to determining sex offender registration requirements, it is not considered a crime you must register for if the victim was at least 13 years old and the offender was not more than 4 years older than the victim. This is similar to, but more lenient than, the Texas Romeo and Juliet Law.
Waiving Registration for Young Adult Indecency Charges
Certain younger adults placed on probation for Indecency with a Child can ask the court to waive the sex offender registration requirement. A person can petition the court to make this waiver or grant an exemption on or after the day the person is sentenced, if:
- The person sentenced does not have any other offenses for which the person must register as a sex offender (this doesn’t include a juvenile adjudication of delinquent conduct);
- On the date the indecency occurred the person charged was not more than four (4) years older than the victim;
- The victim was at least 15 years old;
- The exposure or sexual contact was consensual between the victim and the person charged.
If you do the math, this exemption for sex offender registration only applies to people 19 years old or younger at the time the indecency with a child occurs. Just because someone meets the requirements set out above does not mean the judge is required to grant an exemption. The judge can consider other evidence when deciding whether to exempt a young adult. The judge can hear testimony of the victim or a family member of the victim. Other people can testify about the relationship between the victim and the person convicted. Really, the judge can listen to or consider any evidence the judge thinks might be relevant or useful in deciding whether to grant an exemption. This means your criminal defense attorney needs to be well prepared to present a great case supporting exemption for sex offender registration. You can find the specific requirements for a petition for exemption by starting your research at Texas Code of Criminal Procedure Article 62.301. Under no circumstance should you rely on your own research. These laws are complex and a mistake can result in a serious prison sentence. Talk to a criminal defense lawyer that will take the time to explain and walk you through the sex offender registration laws as they apply to Indecency with a Child.
Sex Offender Driver’s License or ID Card
Under Article 42.016 of the Texas Code of Criminal Procedure, someone required to register as a sex offender for the offense of Indecency with a Child must be issued a unique driver’s license from the Texas Department of Public Safety. If someone is convicted of, receives a grant of deferred adjudication for, or is adjudicated as having engaged in delinquent conduct (juvenile case) based on a crime that a person has to register as a sex offender under Chapter 62 of the Texas Code of Criminal Procedure, the the judge must:
- make a court order requiring the Texas Department of Public Safety (DPS) to include in any driver's license record or personal identification certificate record maintained by DPS for the person an indication that the person is subject to the registration as a sex offender;
- make an order requiring the person to apply to the Texas Department of Public Safety in person for an original or renewal driver's license or personal identification certificate not later than the 30th day after the date the person is released or the date the department sends written notice to the person of this requirement;
- notify the person that is required to get a special driver’s license or ID card of the consequence of the conviction or order of deferred adjudication as it relates to the order issued under this article; and
- send to the Texas Department of Public Safety a copy of the record of the Judgement and Sentence from the criminal or juvenile case and a copy of the order.
So, any time someone convicted of Indecency with a Child must use his driver’s license or Texas state ID, they are announcing they are a registered sex offender. This is just an example of the many little-known consequences of a sex crimes case. You need to speak with your criminal defense attorney about all of the possible consequences.
Possible outcome in these cases
No Billed by Grand Jury
Indecency with a Child is either a Third or Second Degree Felony. This means, before the case is able to go to trial, the prosecutor must have a Grand Jury decide whether there is probable cause to go forward. If the Grand Jury decides there is probable cause, then the case is "True Billed" or "Indicted" The Indictment is the pleading (piece of paper) filed by the government to formally charge someone with a felony criminal offense. However, if the Grand Jury decides there is not probable cause to believe the crime occurred, then the Grand Jury "No Bills" the case. The case is over and the Indecency arrest can later be expunged. This is your first and best chance to have these charges dropped. The Grand Jury presentation happens very early in the process. So, you need to get a criminal defense attorney to begin working on your case immediately. Once the a case is indicted, you have missed an opportunity.
Dismissed by the Prosecutor
Before or after the Indecency charge goes to the Grand Jury, the prosecutor can dismiss the case. Frankly, a prosecutor is usually not apt to dismiss a charge before the Grand Jury decides on the case. This is because if the case is not very good for the prosecution, then the Grand Jury will often return a "No Bill" so the prosecutor is not responsible for the decision to dismiss. This takes much of the responsibility off of the prosecutor. However, after a case is indicted, your defense attorney must likely has several months to work on convincing the prosecutor to dismiss the charge before it goes to trial. This can be a long process that requires many meetings and court dates. During this time, your lawyer should continue to build your defense and strategically decide which information to share with the prosecutor.
Not Guilty at Trial
The least common way to "beat" any criminal case, including Indecency with a Child, is to take it to trial and the jury returns a "Not Guilty" verdict. This outcome is the least common, because only about two-percent of criminal cases go to a jury trial. Even though resolving a case with a jury verdict is this is the least common, the possibility of a trial is a great motivator for both sides of a criminal cases. This means your criminal defense attorney should have a lot of trial experienced, specifically in the area of sex crime cases.
Plea Agreement
Most Indecency with a Child cases are resolved by "plea bargain." This is an agreement between the government on one hand and you along with your lawyer on the other. The prosecutor agrees to a certain punishment (jail, prison, or probation) in exchange for a your plea of "Guilty" to the charge (or lesser charge). Both sides of a criminal case should get something out of a plea bargain. This is why you should find a lawyer with extensive trial experience (specific to child sex crimes), so you have the best position in plea bargain negotiations. Consider this, if the prosecutor knows your criminal defense attorney does not have a lot of experience fighting cases in trial, then the prosecutor is a lot less worried about losing the case at trial. If the prosecutor does not respect your lawyer’s trial experience, you are less likely to get a good plea bargain. Even if you think your case is likely to result in a plea agreement, do not make the mistake of getting a "plea lawyer" to handle your case. Always, always, get an experienced trial attorney on your side.
Terms and Abbreviations for Indecency Cases
On your paperwork from the jail or bond you may see these terms. You may also see the term "fondling" used. Fondling has the same meaning as "Sexual Contact."
- INDECENCY W/A CHILD EXPOSES - this is the abbreviation often used for the Third Degree Felony (F3) charge contained in the Texas Penal Code 21.11(a)(2).
- INDECENCY WITH A CHILD EXPOSES - - this is another abbreviation often used for the Third Degree Felony (F3) charge contained in the Texas Penal Code 21.11(a)(2).
- INDECENCY WITH A CHILD SEXUAL CONTACT - this is the abbreviation often used for the Second Degree Felony (F2) charge contained in the Texas Penal Code 21.11(a)(2).
Definition of Gratify
Section 21.11 of the Texas Penal Code provides that a person commits indecency with a child if they (1) engage in sexual contact with a child or causes the child to engage in sexual contact, or more specifically, (2) with the intent to arouse and gratify the sexual desire of any person, exposes themselves or causes the child to expose themselves. Gratify is not defined by the Texas law.
In Texas, unless a term is defined by statute, or it has taken on a technical legal meaning, the common usage of the word is used in the context of the statute and it may not be defined by the trial court in jury instructions. See Green v. TX, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015). (Holding that trial court erred in providing definitions for "female sexual organ" and "penetration" in jury instructions). Therefore, for a criminal defense attorney to prevail in a trial situation, the trier-of-fact (preferably a jury) must be convinced "gratify" means something beneficial to their client because it has no technical legal meaning, and it is not statutorily defined: the jury will use whatever the think it means.
Sample Analysis for meaning of Gratify
In Green, the Court of Criminal Appeals rejected the definitions provided by the trial court in the jury instructions for "female sexual organ" and "penetration" because they did not have a technical legal meaning, and they were not defined by statute. Id. The court pointed to the reasoning applied in Kirsch, and concluded that a jury was free to assign those terms any meaning that is acceptable in common parlance. Green, 476 S.W.3d at 445 (citing Kirsch v. State, 357 S.W.3d 645). Although the Court of Criminal Appeals decided that the court erred in defining the terms, it did not cause "harm" to the defendant (the instructions were consistent with common usage and did not bias the jury), and therefore, it was not a reversible point of error. Id. at 446-47.
The State argued that the terms provided in the jury instruction had taken on a particular legal meaning because an appellate court had defined them. The court in Green was unpersuaded and reasoned that "[a]lthough an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence ... a trial court's inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence." Id. at 445 (citations omitted). The court concluded that there was a lack of "persuasive authority to establish that the terms acquired technical or particular legal meanings . . ." and the instructions containing the definitions were therefore improper. Id. at 445-46.
The Meaning of Gratify: Purposefully Vague
The statutory definition provided by the Penal Code most relevant to understanding § 21.11 is "sexual contact." "Sexual contact" is defined as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Texas Penal Code § 21.01. For purposes of interpreting "gratify," no statutory definition or technical legal meaning exists, and therefore it must be interpreted according to its common usage. The dictionary definition of gratify according to Merriam-Webster is "to be a source of or give pleasure or satisfaction to; to give in: indulge, satisfy." What meaning a juror may attach is certainly a difficult question.
There have been no appellate cases in Texas that focus on the meaning of "gratify," either. None of the statutory text in any of the compiled statutory codes of Texas shed any light on the meaning of the word "gratify." A secondary source discussing sexual assault cases mentioned that terms such as "to arouse," and "gratify" are intangible concepts. This invokes the idea that the meaning attributed to "gratify" is purposefully left open to the jury’s interpretation by the legislature. Therefore, it is the job of the defendant’s counsel to dissuade the jury from attaching a broad definition to the term, and attempt to focus them in direction that would not encompass the defendant’s conduct.
In fact, the only high level court that mentioned the meaning of "sexual gratification" was the Supreme Court of Indiana in 1981. The court amended the jury instructions when prompted by the jury foreman to include two sentences regarding "sexual gratification." The court provided: "sexual gratification may or may not include ejaculation," and "Webster defines gratification as a source of gratification or pleasure." Jenkins v. State, 424 N.E.2d 1002, 1003-04 (Ind. 1981). The result of the jury instruction was a reversal by the Supreme Court, stating that there is no rule that requires a judge to instruct a jury in such "common terms." Id.
Evidence of "Gratification"
Since 1994, the only evidence required for a conviction of indecency with a child is the complainant’s testimony. Texas Code of Criminal Procedure Article 38.07 (2015). Many cases of Indecency use a "sufficiency of the evidence" defense. Unfortunately for defendants, the only evidence required is the testimony of the victim, so the amount of deference given to the trier-of-fact is almost complete. If a defendant loses at trial, without another technical error by the court, it is unlikely the court will overturn based on a sufficiency argument. The jury, or bench-trial judge, are the sole judges of credibility of the witnesses, and if the only evidence of wrongdoing is based on the testimony of the victim, it is nearly impossible for an appellate court to determine otherwise from a point of legal sufficiency.
Appealing based on the standard of legal sufficiency in a criminal case is a high bar as it views the evidence in light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In cases of indecency with a child the evidence is inferred from the circumstances surrounding that occurrence. To meet the specific intent requirement of the crime, the jury may infer from the defendant’s conduct, remarks, and all surrounding circumstances. This inference by the jury is afforded more deference than evidence supporting the conduct. For example, testimony that indicates a defendant told the victim not to tell anyone is sufficient to prove that the defendant intended "to arouse or gratify someone." If a jury infers from their feelings about the case, it is a difficult hurdle to overcome to expect them to side with the accused over a child.
Age of Consent in Texas
Generally, the age of consent in Texas is 17. So a person younger than 17 is considered a "child" in this context. This is the "Age of Consent" for Indecency with a Child. When we say "age of consent" we mean the age when someone can legally consent to specific sexual activity. "Consent" means permission for something to happen or agreement to do something. The age differs based on what sexual conduct we are talking about. For Indecency with a Child, the "age of consent" is 17.
If you were to search the Penal Code for the term or definition of "age of consent" in Texas, you would not find it. Instead, you must look at the laws that prohibit specific sexual activity with a minor. For example, Penal Code Section 22.011, which defines Sexual Assault of a Child, defines a child as anyone under the age of 17. Tex. Penal Code Ann. § 22.011(c)(1). Similarly, Texas Penal Code 21.11 (Indecency with a Child) prohibits sexual conduct with a child younger than the age of 17. Tex. Penal Code Ann. § 21.11(b).
Under Texas law, with very limited exceptions, it is illegal to have sex or sexual contact with a person under the age of 17. This is sometimes called the statutory rape law because by statute an individual who is under the age of 17 is legally unable to give consent for sexual conduct or exposure. Meaning even if the person in-fact consents, because the person is younger than 17 the person's consent is not effective. So, it is not a defense to these charges that a minor gave actual consent.
In Texas, once a person has turned 17, the law presumes they are able to give consent. Therefore, the age of consent in Texas is 17. This applies to Indecency with a Child. There are other situations in which a person that is 17 or older legally cannot give consent.
Romeo and Juliet Law in Texas
"Romeo and Juliet Law" is the term used for a statutory provision that makes sexual conduct between persons close in age non-criminal or provide substantially reduced punishment. In Texas, both the offenses of Indecency with a Child (TPC § 21.11) and Sexual Assault (TPC § 22.011) provide slightly different affirmative defenses.
For Indecency with a Child, it is an affirmative defense to prosecution if the person engaging in sexual conduct: (1) is not more than three years older than the minor and the opposite sex of the minor; (2) did not use force or a threat against the minor; and (3) at the time of the sexual conduct was not required to register for life as a Sex Offender under Chapter 62 of the Texas Code of Criminal Procedure (Sex Offender Registration Program) and did not have a reportable conviction or adjudication for an offense under Chapter 62. Tex. Penal Code Ann. § 21.11(b).
It is also an affirmative defense that "the offender" was the spouse of the child at the time of the offense. Tex. Penal Code § 21.11(b-1).
This is how Romeo Juliet Law applies to Indecency with a Child in Texas. However, if you think this law protects you, you should not speak with police or Child Protective Services. You should first speak with a criminal defense lawyer. Even if you think you are not guilty because of the Romeo Juliet Law, you may still be prosecuted for other felony sex crimes. This area of law is complicated.
Evidence of Indecency with a Child
You may know there is no DNA supporting the false claims of sexual abuse. You might think to yourself, "There is no medical evidence. How can they accuse me of sexual assault on just someone’s word?" It may not be right, but it certainly happens every day. Prosecutors often start their jury selection by asking "Who here has seen CSI?" and then the strategically eliminate those prospective jurors that will require physical evidence to convict. Despite law enforcement's ability to collect and analyze forensic evidence, laziness or incompetence often results in the lack of evidence that can be exculpatory. You should know, some prosecutors are willing to seek a conviction for indecency with a child with NO PHYSICAL EVIDENCE. More importantly, some jurors are willing to convict someone of indecency with a child with NO PHYSICAL EVIDENCE.
Fort Worth police and other large police agencies have dedicated "crimes against children" or "sexual crimes" units. Likewise, the Tarrant County District Attorney's Office has prosecutors focused specifically on crimes in which children are the alleged victims. You need an attorney that will prepare your case from day one to present your case to a grand jury, prosecutor, or jury while maintaining the utmost level of discretion. We will work tirelessly on your case to protect your life, rights, and reputation.
Hearsay Evidence in Indecency of a Child Trials
If the alleged victim in a case is younger than 14 years of age then certain hearsay statements of the alleged victim can come into evidence at the trial. The kinds of hearsay statements that may be admissible as evidence in an Indecency with a Child trial statements are those describing the alleged crime. Strictly speaking, the only person that can testify about these hearsay statements is the first adult (18 years of age or older) to whom the alleged victim made a statement about the offense.
We say "strictly speaking" because often the State will "cherry pick" the witness they believe would make the best presentation to the jury. Then they try to get the hearsay statements into evidence through this person. You may hear this hearsay witness referred to as an "outcry witness."
To use the hearsay testimony of an outcry witness, the State has to go through a few additional steps. The State must:
- give notice of the hearsay statements to the defense;
- give the defense the name of the witness through whom the prosecutor intends to offer the statements; and
- give the defense a written summary of the statements.
The criminal defense attorney should request the judge have a hearing (outside the jury’s presence) to determine whether the State has complied with notice requirements. The judge should also determine if the State’s hearsay witness is the correct person to testify and decide if the hearsay is reliable based on the time, content, and circumstances. It is also important for an attorney to note, for the hearsay to come into evidence, the alleged victim must testify or be available for the defense to call as a witness.
Double Jeopardy
Exposure and Contact
Speights v. State, 464 S.W.3d 719 (Tex. Crim. App. 2015).
A defendant can be convicted of both Indecency with a Child by sexual contact and by exposure even when both charges arise from a single act. In Speights, the defendant exposed himself to the victim and then caused the victim to touch his genitals. The trial jury convicted the defendant on both charges, and he then appealed on the grounds of double jeopardy. Double jeopardy is the constitutional principle that, among other protections, protects against multiple punishments for the same crime. The Speights argued that he could not be punished for both crimes because the charges stemmed from the same incident and it would violate double jeopardy.
The Court of Criminal Appeals, based on the structure of Texas Penal Code § 21.11, determined that the Texas Legislature intended that both theories of Indecency with a Child may be pled and punished at the same time, and that both acts could have occurred on their own. Thus, they were separate, distinct acts.
Indecency and Sexual Assault
Maldonado v. State, 461 S.W.3d 144 (Tex. Crim. App. 2015).
A single count of Indecency with a Child by contact is not subsumed, or merged, with a count of Sexual Assault by penetration where there is evidence of multiple incidents of both contact and penetration. In Maldonado, the defendant sexually abused two victims by sexual contact and by penetration multiple times over a period of approximately two years. He was subsequently charged with two counts of aggravated sexual assault by penetration and one count of indecency with a child by contact for the abuse of one victim.
He appealed on double jeopardy grounds, claiming that he was being punished twice for the same offense and the contact charge should be merged with the sexual assault. Normally, the Court noted, an offense may be merged where there is a single act that cannot physically occur in the absence of another act. However, because there was multiple separate acts of both contact and penetration, the indecency by contact offenses occurred at other times in addition to the contact associated with the penetration offenses.
Understanding Double Jeopardy in Sex Crimes Cases - These case notes only serve as a place to begin your research of Double Jeopardy in sexual abuse cases. This specific area of law is complex. Criminal defense attorneys should conduct thorough, independent research. Do not limit your arguments or objections to what the law currently is. A criminal lawyer should attempt to anticipate changes in criminal law.
Tragedy of False Allegations
It is a tragedy that indecency with children and abuse actually does happen in our world. This tragedy often causes those working in the legal or social services system to lose sight of another tragedy: false allegations of sex crimes. The mere hint of allegations of indecency with a child, or any other sex crime, may be enough to destroy a person’s life. The media publicizes these sex crimes and inflames the emotions of people that could be your jurors, prosecutors, and politicians (judges). Every accusation is a serious accusation. It just takes the wrong person overhearing a child’s imagined story or the wrong person overhearing a tacky joke. Then the sticky web of sexual accusations can begin.
Regardless of how ridiculous you believe the accusations to be, do not make the mistake of not taking an allegation of indecency with a child, child molesting, or rape seriously. You may know you did nothing wrong, but that does not mean that the sexual allegation somehow magically disappears. This could be the preamble to the most difficult time and fight of your life. We are here with the skills and plan to give you the best chance of beating an indecency accusation.
What to do now
Don’t panic. Being accused of indecency with a child is an intensely emotional situation. False allegations of sexual abuse (child or adult) will no doubt make you furious. But do not let your emotions guide your actions. You need to get a caring criminal defense attorney that can guide you and keep you focused on the difficulties ahead of you. You will not help your position by blowing up, threatening anyone, or just sticking your head in the sand. You need to get a skilled indecency with a child attorney and get one fast. Do not speak with anyone, especially police, about your case.
