TOP 10 MISTAKES IN SEXUAL ASSAULT AND INDECENCY WITH A CHILD CASES
Posted on by Michael Lowe.
1. Can You Get Probation?
This may seem like an obvious question but it’s not. It seems like every legislative session our representatives pass a law taking probation or community supervision off the table on more and more cases. In this paper I will focus solely on sex related crimes. However, Texas law greatly restricts who can get probation or community supervision in general.
Of course, you need to review article 42.12 of the Texas Code of Criminal Procedure. Easier said than done, right? Article 42.12 in currently form is 22,541 words long. So, you need to know where to look to know whether you will even have a shot at getting probation in your case. Before that, you need to know whether you are electing to have the judge or the jury sentence you.
The list prohibiting a judge from granting probation or community supervision after conviction for a felony offense can be found in article 42.12 section 3(g). This is known as the “3g offenses.” The reason why they are known this way is that several other criminal laws make reference to this list of supposedly heinous offenses against the people of Texas.
For example, 3g offenses have different applicable parole laws under the Texas Government Code 508.145(d)(1) and also can restrict one’s right to an appeal bond even though they have received a sentence less than 10 years under article 44.04(b) of the Texas Code of Criminal Procedure.
In this case, the 3g offenses prohibit the judge from giving probation if you are found guilty for the following cases:
2. Capital Murder
3. Indecency with a Child under 21.11(a)(1) [aka Indecency by Touching]
4. Aggravated Kidnapping
5. Aggravated Sexual Assault
6. Aggravated Robbery
7. Used a child in the commission of Possession Controlled Substance offense under article 481 of the Texas Health and Safety code
8. Convicted under article 481 of the Texas Health and Safety code in a drug free zone with a previous conviction with an affirmative finding of a drug free zone
9. Sexual Assault
10. 1st degree Injury to a Child, Elderly or Disabled
11. Sexual Performance of a Child
12. 1st degree Solicitation of a Capital Offense under Penal Code 15.03
13. Compelling Prostitution
14. Trafficking of Persons
15. 1st degree Burglary of a Habitation with the intent to commit Sexual Assault, Aggravated Sexual Assault, Indecency With a Child, Prohibited Sexual Conduct (Incest) or Continuous Sexual Abuse of a Young Child or Children
16. Any offense with a Deadly Weapon was used during the commission of the offense or immediate flight therefrom as defined by Penal Code 1.07
As you can tell, this list is long and has been amended many times. Most of these offenses are sex related crimes. You can also be prohibited from receiving probation or community supervision from a Jury in Texas.
These cases are listed in article 42.12 section 4 of the Texas Code of Criminal Procedure:
1. Jury assesses more than 10 years in confinement.
2. Automatic State Jail Felony Probation for most State Jail Drug cases under article 481 of the Health and Safety Code
3. Conviction for Indecency by Touching With a Child less than 14 years old, Aggravated Sexual Assault of a Child less than 14 years old or Sexual Assault of a Child less than 14 years old.
4. Aggravated Kidnapping of a child less than 14 years old if the actor intended to sexually abuse the child
5. Sexual Performance of a Child, Compelling Prostitution of an Adult or Child or Trafficking of Persons Adult or Child
2. Take the Police Polygraph.
In sexual assault cases, police officers frequently have very little evidence to support an arrest and subsequent charge. Therefore, they can be very desperate in trying to coax a potential defendant into providing the evidence they seek. The Detective may ask you the suspect to take a polygraph. In this scenario, the polygrapher works for the Detective.
The purpose for the polygraph is to subject the suspect to an interrogation that results in a partial or full confession. Therefore, the polygraph session can quickly turn into an interrogation session where the polygraph machine is used to intimidate the suspect.
NEVER FALL FOR THIS TRAP! Why?
The detective will say: If you’ve got nothing to hide, what’s the harm? This is false. There will always be another side to the investigation that you won’t be privy to. You won’t know the lies that are being said about you. How can you respond to unknown accusations? It’s impossible and very likely you will hurt yourself much more than help yourself in such a situation.
The police won’t tell you that you can hire own attorney and your attorney can conduct a polygraph under the Attorney Work Product Privilege so that the result is never known unless you and your attorney agree that it be released.
In my case, I use the best polygrapher around. The FBI, Dallas County District Attorney’s Office, Plano Police Department and many other police agencies frequently use my polygrapher to assist them in their investigations. His credibility will NEVER come into question.
3. Don’t Order CPS Records.
What do I mean “order?” That’s a good question. Most commonly an attorney will make a request for certain discovery from the DA’s office.
For cases occurring after January 1, 2014, the Michael Morton Act will control these request. In particular, Texas Code of Criminal Procedure 39.14 was amended to basically allow Defendant charged the right to certain discovery items.
The “rights” to discovery are spelled out subsection (a) which includes offense reports, recorded or written witness statements, books, accounts, letters, photographs or other tangible objects ”that are in the possession, custody, or control of the State or any person under contract with the State.”
By now, you should realize what he problem is. The “state” listed in this statute will likely be interpreted to mean only the prosecuting entity. In most cases, that means the Assistant District Attorney or his/her office assigned to the case.
It must be interpreted this way because only the DA’s office has a direct interaction with the court wherein the request for discovery MUST be made by the Defendant. The “state” is also required to turn over any so called Brady vs. Maryland material and that’s been codified in 39.14 of the Texas Code of Criminal procedure subsection (h).
What if the “state” isn’t aware of the Brady material? What if the “state” doesn’t have any knowledge of or possession of the discovery sought from the Defendant who simply filed a Michael Morton discovery request? Will that information ever see the light of day? Probably Not!
So, when I say “order” the CPS records, I really mean, the CPS investigator handling the child abuse or sexual assault investigation MUST RECEIVE A SUBPOENA DUCES TECUM from Defense counsel.
The investigator must then be made to take the witness stand in open court and under oath forced to testify. The questions asked of the investigator must focus on what documents were brought to court and whether other documents exists related to the case, whether they be subject to a privilege or not is irrelevant.
When the questioning is done, I always make a request with the Court to have the witness subject to recall and be under a continuing duty to provide the Court with discovery created or found later on after the hearing. I have done this on many occasions and I frequently discover new records and witnesses that neither myself nor the “state” knew about before the hearing. Sometimes, the new evidence results in a MUCH better outcome for my client’s case.
4. Don’t Read AND Act Upon the CPS Records.
Okay, I know what you are thinking. What kind of lawyer would go through the trouble of ordering the CPS records but then not bother to read them? I recently handled an 11.07 Writ of Habeas Corpus wherein I successfully proved a prominent Dallas criminal defense lawyer was ineffective for doing just that.
In that case, I proved the lawyer had the CPS records. The CPS records identified a close family member that interviewed the complainant on an Aggravated Sexual Assault and an Indecency with a Child cases wherein the complainant told the family member that the crime never happened in the first place.
That’s right, the victim RECANTED in the CPS records and the prestigious criminal defense lawyer never bothered to read it, much less follow up on the victim’s recantations. Unfortunately, my client was already serving time in the Penitentiary when he hired me to uncover this injustice.
If you don’t believe me, the following is the finding from the Special Master appointed to make findings of fact concern my Writ of Habeas Corpus:
5. Don’t Hire a Criminal Attorney When CPS calls.
Of course, when I say CPS I am really referring to the Texas Department of Family and Protective Services (DFPS). I am call them CPS because that’s what everyone else calls them, even though that’s not really their name.
CPS investigators are not real police officers. CPS case workers are tasked with investigating claims of child abuse. They are not able to file formal criminal charges against anyone. They can make the following findings at the conclusion of their investigations:
• Reason to Believe that there is a preponderance of evidence that abuse or neglect has taken place against the child victim.
• Ruled out means that it is reasonable to determine that abuse or neglect has NOT occurred.
• Unable to Complete means the investigator can’t complete his/her investigation due to inability to find evidence or witnesses.
• Unable to Determine is sort of a miscellaneous determination. None of the other options apply.
• Administrative Closure means that an investigation is unwarranted based on the complaint made once the case goes to the CPS caseworker.
Once the caseworker makes his/her findings, then a civil case can be brought to remove the child from the home or take other action to protect the child in question. In my experience, it is very common for a CPS investigator to be working hand-in-glove with a criminal investigator with a Police agency.
Remember, Detectives aren’t required to tell you whether you are being investigated. Many times, they prefer not to tell you that and let you give your witness statements to the CPS caseworker.
Of course, those statements are going to be used against you later on, after the criminal case is initiated and you are arrested. This is why you need a criminal lawyer when CPS comes a calling.
6. Don’t Order CPS Records Before Case Filed.
According the Texas Family Code 261.201, and in particular, subpart (g), the Texas Department of Family and Protective Services SHALL release records upon a proper written request concerning the CPS investigation and its findings.
You can make this request directly with Texas DFPS if you are the parent or managing conservator for the child who is the subject of the investigation. This request is called a form 4885-G. I often fill these forms out for my clients at the first meeting and have them sign the forms. I can mail them to TDPFS for my client to get the process started. However, TDFPS isn’t required to release any of these records requested until after they’ve completed their investigation. This is free to do and is a no-brainer, in my opinion.
7. Don’t get the SANE Exam and the Forensic Interview Pre-Interview Questions.
Many child abuse cases have medical evidence that needs to be reviewed as well. The SANE exam is a standardize examination that is frequently done by trained medical professionals like a Sexual Assault Forensic Nurse Examiner to the complainant in the child abuse case. In many cases, it becomes necessary to have an independent expert witness to review the SANE examiner’s findings.
You need to review the SANE exam result with your lawyer and determine whether you will need your own expert to testify about the results of the exam. Also, be aware that there are pre-forensic interview forms and reports are created by the forensic child interviewer before she/he actually interviews the child.
Many times it’s necessary to subpoena the forensic interviewer to bring all of their notes to court for examination. I have had many cases wherein these records were not included in the standard discovery from the DA’s office.
8. Fail to consider registration requirements if you are placed on deferred adjudication probation or are convicted at trial.
This is a simple one but many defendants never get the advice they need regarding registration as a sex offender. There are two aspects to registering as sex offender that are extremely important to consider before taking a plea bargain or going to trial. The first is whether you need to register and for how long.
The second consideration has to do with the implications of registering as a sex offender. Texas Code of Criminal Procedure 62.101 controls the applicable registration period. But you must first determine whether there will be a “reportable conviction.”
You need to look at article 62.001 of the Texas Code of Criminal Procedure subpart (5) to determine whether you will have a reportable conviction. The term conviction is not used in the normal way.
A “conviction” under article 62 really means either an actual finding of guilt by a judge or jury or a deferred adjudication community supervision/probation. It also includes a finding of delinquent conduct.
The following are all of the Texas offenses subject to a “reportable conviction”:
• Continuous Sexual Abuse of a Young Child or Children, PC 21.02
• Indecency With a Child, PC 22.11
• Sexual Assault, PC 22.011
• Aggravated Sexual Assault, PC 22.021
• Prohibited Sexual Conduct aka Incest, PC 25.02
• Compelling Prostitution, PC 43.05
• Sexual Performance of a Child, PC 43.25
• Possession or Promotion of Child Pornography, PC 43.26
• Aggravated Kidnapping With the intent to sexually abuse a child, PC 20.04(a)(4)
• 1ST Degree Burglary of a Habitation With Intent to Commit one of the above listed offenses
• Unlawful Restraint, PC 20.03 or Aggravated Kidnapping, PC 20.04, with finding of a child under 17 years old
• Second Indecent Exposure, PC 21.08, but not if the second one is a deferred adjudication
• An attempt, conspiracy or solicitation of any of the above listed offenses except Indecent Exposure
• A violation of the laws of another state or jurisdiction wherein the elements are substantially similar to those of the above listed crimes
• Online Solicitation of a Minor, PC 33.021
• Trafficking of Persons, PC 20A.02(a)(3), (4), (7) or (8)
Once you’ve determined that it will be a “reportable conviction” you then need to know for how long you will be required to register as a sex offender. There are two registration periods: Lifetime (expires when you die) or 10 years (from the date of completing the sentence). All offenses are 10 year registration except those listed in article 62.101 subpart (a).
Therefore, the lifetime registration offenses are any sexually violent offense. Sexually violent offenses are defined by article 62.01(6). They are:
• Aggravated Sexual Assault
• Sexual Assault
• Indecency with a Child by Touch (2nd degree Indecency)
• Continuous Sexual Abuse of a Child or Children
• Sexual Performance of a Child
• Aggravated Kidnapping with the intent to sexually abuse a child
• 1st Degree Burglary of a Habitation with the intent to commit one of the above listed crimes
• Possession or Promotion of Child Pornography
• Trafficking or benefiting from Trafficking in Prostitution, Promotion of Prostitution, Aggravated Promotion of Prostitution or Compelling Prostitution
• Prohibited Sexual Conduct (Incest)
• Compelling Prostitution of a Child Younger Than 18
• Indecency With a Child by Exposure with a prior Conviction or adjudication for Indecency With a Child by Exposure
• Unlawful Restraint, Aggravated Kidnapping and Kidnapping IF victim younger than 17 and a prior conviction or adjudication giving rise to registration as a sex offender
• 2nd degree Promotion or Possession of Obscenity where the image depicts a child younger than 18 in the obscene materials.
Everything else that is reportable is a 10 year registration period.
9. Don’t Give up!
I know this may not seem like a legal strategy. I oftentimes meet folks that get charged with very serious sex related crimes. They hear the range of punishment and the prospect of having to register as a sex offender and they just shut down. You need to know that there’s a way out of this mess. You need to be proactive.
You need to find an aggressive and experienced attorney that can help. In most of these cases, you will need to set your case for and trial and really get ready for trial.
Many times you will need to try your case to a jury. It’s important to find a lawyer that’s tried many cases and is comfortable trying these types of cases to a jury. I can help you.
Please don’t give up.
10. Never watched the Forensic Interview!
In all child abuse cases, the child will be interviewed by a forensic interviewer. There is no standardized protocol for how the interview should be conduct.
However, there are many Forensic Psychologists I have used in the past to demonstrate problematic questioning. The things you should be watching for are leading questions, the child can’t tell the difference between the truth and a lie, or the child isn’t a competent witness because he/she can’t distinguish between reality and fantasy.
Here is a good paper that provides some guidance on excellent forensic questioning techniques. It’s important for your lawyer to carefully watch the interview. Many times, I have watched the interview multiple times.
Although your lawyer is prohibited by law from getting a copy of the video, he can request that the court permit his expert to view the video as well in preparation for trial and expert testimony.
About the Author:
Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.
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