Criminal Solicitation of a Minor: Criminal Charges under Texas Penal Code § 15.031
Posted on by Michael Lowe.
Anyone arrested for Criminal Solicitation of a Minor in Texas likely faces other serious felony sex crime charges and a statutory limitation on defenses that can be asserted on their behalf.
Sex crimes involving minors are given special consideration by the Texas Legislature, as the lawmakers have passed detailed and specific criminal statutes dealing with these types of activities. See, e.g.,
- Sexual Performance of A Child: Criminal Charges under Texas Penal Code § 43.25;
- Prostitution Crimes in Texas: Promotion of Prostitution and Compelling Prostitution.
However, anyone who faces arrest on the charge of Criminal Solicitation of a Minor must understand not only is this a serious felony charge, but it is often accompanied by separate criminal allegations and it comes with specific legislative limitations on what the criminal defense lawyer can argue on behalf of his client.
What is the Crime of “Criminal Solicitation of a Minor” in Texas?
The crime of “criminal solicitation of a minor” is defined under Texas Penal Code Section 15.031 as acting with the intent to commit other criminal acts defined in Texas criminal statutes. In this particular criminal law, “minor” means an individual younger than 17 years of age. TPC §15.031(f).
There are two lists of defined criminal conduct that correspond to being charged and convicted for Criminal Solicitation of a Minor. They involve:
1. Intent to Commit Specific Crimes Listed in TCCP Art. 42A.054 (a)
Pursuant to Texas Penal Code Section 15.031(a) it is a criminal act if the accused is shown to have acted with intent to commit one of the following offenses (listed by Texas Code of Criminal Procedure Article 42A.054(a)), and the person (1) requests, (2) commands, or (3) attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would (1) constitute one of these listed offenses or (2) make the minor a party to the commission of one of these listed crimes:
(1) Texas Penal Code §15.03 (Criminal Solicitation if the offense is punishable as a felony of the first degree);
(2) Texas Penal Code §19.02 (Murder);
(3) Texas Penal Code §19.03 (Capital Murder);
(4) Texas Penal Code § 20.04 (Aggravated Kidnapping);
(5) Texas Penal Code §20A.02 (Trafficking of Persons);
(6) Texas Penal Code §21.11(a)(1)(Indecency with a Child);
(7) Texas Penal Code § 22.011 (Sexual Assault);
(8) Texas Penal Code § 22.021 (Aggravated Sexual Assault);
(9) Texas Penal Code §22.04(a)(1)(Injury to a Child, Elderly Individual, or Disabled Individual), if: (a) the offense is punishable as a felony of the first degree; and (b) the victim of the offense is a child;
(10) Texas Penal Code §29.03 (Aggravated Robbery);
(11) Texas Penal Code §30.02, Penal Code (Burglary), if: (a) the offense is punishable under Subsection (d) of that section; and (b) the actor committed the offense with the intent to commit a felony under Texas Penal §§ 21.02, 21.11, 22.011, 22.021, or 25.02;
(12) Texas Penal Code §43.05 (Compelling Prostitution);
(13) Texas Penal Code §43.25 (Sexual Performance by a Child); or
(14) Texas Health and Safety Code Chapter 481.
2. Intent to Commit Other Specific Texas Crimes
Pursuant to Texas Penal Code Section 15.031(b) it is also a criminal act if the accused is shown to have acted with intent to commit one of the following offenses, and the person by any means (1) requests, (2) commands, or (3) attempts to induce (i) a minor or (ii) another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute an offense (1) under one of the listed crimes or (2) would make the minor or other believed by the person to be a minor a party to the commission of one of these listed crimes:
(1) Texas Penal Code §20A.02 (a) (7) or (8) (Human Trafficking; Sexual Trafficking of a Child);
(2) Texas Penal Code § 21.02 (Continuous Sexual Abuse of Young Child or Children);
(3) Texas Penal Code § 21.11 (Indecency with A Child);
(4) Texas Penal Code § 22.011 (Sexual Assault);
(5) Texas Penal Code § 22.021(Aggravated Sexual Assault);
(6) Texas Penal Code § 43.02 (Prostitution);
(7) Texas Penal Code § 43.05(a) (2) (Compelling Prostitution Child Younger Than 18 Years), or
(8) Texas Penal Code § 43.25 (Sexual Performance by a Child).
Limited Defenses under Texas Penal Code Section 15.031
The criminal defense strategy must advance within the confines of the language of this particular statute. The Texas Legislature has explicitly limited the defenses that can be asserted for those charged with Criminal Solicitation of a Minor.
Specifically, under TPC§15.031(d) the defense attorney cannot argue:
1. Defendant Cannot Argue Regarding the Minor
- the minor who was solicited is not criminally responsible for the offense solicited;
- the minor who was solicited has been acquitted;
- the minor who was solicited has not been prosecuted;
- the minor who was solicited has not been convicted;
- the minor who was solicited has been convicted of a different offense;
- the minor who was solicited has been convicted of a different type or class of offense;
- the minor who was solicited is immune from prosecution.
2. Defendant Cannot Argue Regarding the Actor
- the actor belongs to a class of persons that by definition of the offense solicited is legally incapable of committing the offense in an individual capacity.
3. Defendant Cannot Argue Regarding the Offense
- the offense solicited was actually committed.
He Said, She Said: Uncorroborated Minor’s Testimony as Evidence of the Crime
What if the evidence is “he said, she said” and there is no other evidence to support the charge? Under TPC§15.031(c), as a general rule the accused cannot be convicted of violating the law against Criminal Solicitation of a Minor with the prosecution’s use of the uncorroborated testimony of the minor allegedly solicited.
However, the statute also provides an enormous exception: the minor’s uncorroborated testimony can be used if the solicitation is made under circumstances “strongly corroborative” of both (1) the solicitation itself and (2) the actor’s intent that the minor act on the solicitation.
What is “uncorroborated” testimony?
As explained by the Texas Court of Criminal Appeals in Holladay v. State, 709 S.W.2d 194 (Tex. Crim. App. 1986), quoting from Minor v. State, 299 S.W.422 (Tex.Cr.App.1927):
“The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be `other evidence tending to connect the defendant with [the] offense committed.'”
Punishment for Committing Criminal Solicitation of a Minor
The legislation also provides the range of punishment for those convicted of Criminal Solicitation of a Minor. Under TPC 15.031(e), conviction is to be considered in sentencing as one category lower than the solicited offense (those in the lists above), as a general rule.
However, the judge may consider the offense as being in the same category as the solicited offense if it is shown on the trial of the offense that the activity was gang-related, i.e., the actor:
(1) At the time of the offense was at least 17 years old and a member of a criminal street gang, as defined by TPC §71.01; and
(2) Committed the offense with the intent to:
- further the criminal activities of the criminal street gang; or
- avoid detection as a member of a criminal street gang.
Sufficiency of Evidence for Conviction for Criminal Solicitation of a Minor
Defending against the state’s allegations of “criminal solicitation of a minor” is dependent upon evaluating each element of the prosecutor’s case. The defense attorney must check every single item of evidence, both in documents and in witness statements / testimony. The ADA (Assistant District Attorney) must provide the court with enough evidence to meet its burden of proof.
Evidence that is not properly authenticated must be discovered and challenged. Evidence that is not admissible (hearsay, for instance) likewise must be discovered and excluded after proper objection.
The prosecution does not have to cull its file of evidence that may not be admissible. It is the job of the criminal defense lawyer to root out evidence problems in the state’s case and assert the legal objection against these pieces of evidence being used in the attempt to convict the accused.
A recent example of how focusing on the “sufficiency of the evidence” is particularly vital in defending against allegations of Criminal Solicitation of a Minor can be found in the case of Lumsden v. State, No. 02-16-00366-CR (Tex. App. Nov. 8, 2018).
In this matter, Raymond Lumsden was found to be guilty of (1) aggravated sexual assault of a child, (2) indecency with a child, and (3) criminal solicitation of a minor after a full jury trial. He was sentenced to life imprisonment for each offense, with the life sentences running consecutively.
From Mr. Lumsden’s arguments at trial and in his appeal of his conviction we find the following kinds of evidence arguments that are examples of what can be asserted by the defense in a Criminal Solicitation of a Minor case:
1. Hearsay: Minor Victim Statements
Hearsay must be asserted by the defense against questionable evidence, but once the objection is made, as a general rule the hearsay cannot be considered as evidence against the defendant. Tex. R. Evid. 802.
There is an exception to this general rule. As explained in the Lumsden case, Texas Code of Criminal Procedure Article 38.072, entitled “Hearsay Statement Of Certain Abuse Victims,” provides that a victim’s statement can be admitted despite an objection that it is hearsay if:
(1) the statement describes an offense under Texas Penal Code Chapter 21 (Sexual Offenses), and alleges a crime committed against a child younger than 14 years old;
(2) the statement was made by the child to the first person who was 18 years old or older, other than the defendant, that the child spoke to about the offense; and
(3) the judge finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement.
The law gives the judge several “indicia of reliability” to help in these evidence rulings:
(1) whether the child victim testifies at trial and admits making the out-of-court statement
(2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate
(3) whether other evidence corroborates the statement
(4) whether the child made the statement spontaneously in his own terminology or whether evidence exists of prior prompting or manipulation by adults
(5) whether the child’s statement is clear and unambiguous and rises to the needed level of certainty
(6) whether the statement is consistent with other evidence
(7) whether the statement describes an event that a child of the victim’s age could not be expected to fabricate
(8) whether the child behaves abnormally after the contact
(9) whether the child has a motive to fabricate the statement
(10) whether the child expects punishment because of reporting the conduct, and
(11) whether the accused had the opportunity to commit the offense.
2. Hearsay: Statements Made During Medical Diagnosis or Treatment
There is another exception to the general rule that hearsay cannot be admitted in a criminal case as defined in Texas Rule of Evidence 803. The Evidence Rule states the following statement is admissible into evidence:
A statement that:
(A) is made for – and is reasonably pertinent to – medical diagnosis or treatment;
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause; and
(C) the court affirmatively finds were made under circumstances indicating their trustworthiness.
Things that are spoken to doctors and nurses may get special treatment under the evidence rules. Even if they are technically evidence, the prosecutor may be able to get these statements admitted anyway.
The burden of establishing that the evidence is protected by this evidence rule is upon the prosecutor. In response to a defense objection of hearsay, the ADA must show the person making the statement knew the statements were made for purposes of medical diagnosis or treatment, and that their proper diagnosis or treatment depended upon the veracity (truth) of the statements they were making. Taylor v. State, 268 S.W.3d 571, 588-89 (Tex. Crim. App. 2008).
From the Texas Court of Criminal Appeals in Taylor: “… it seems only natural to presume that adults, and even children of a sufficient age or apparent maturity, will have an implicit awareness that the doctor’s questions are designed to elicit accurate information and that veracity will serve their best interest.”
3. Defense of Cumulative Error
There is also the defense argument that even if each allegation of evidence error is found to be harmless, together they should warrant reversal of the judgment when considered together (cumulatively).
See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of errors may be found harmful in their cumulative effect.”), cert. denied, 528 U.S. 1082 (2000); Flores v. State, 513 S.W.3d 146, 174-75 (Tex. App.-Houston [14th Dist.] 2016, pet. ref’d).
Here, the defense must demonstrate the ADA used all these pieces of evidence together to an unfair advantage, or the evidence deprived the defendant of a fair trial in some way. U.S. v. Stephens, 571 F.3d 401, 412 (5th Cir. 2009)(cumulative-error doctrine compels relief only when constitutional errors “fatally infect the trial,” depriving a defendant of fundamental fairness).
Texas Criminal Defense Lawyer for Charges of Criminal Solicitation of a Minor
From this real-life court case we find a demonstration of how important it is for anyone accused of criminal solicitation of a minor under Texas Penal Code 15.031 to have an aggressive and experienced criminal defense lawyer to advocate on their behalf.
In defending against the charge of “Criminal Solicitation of a Minor,” the defense strategy may well focus on challenging the accompanying felony charges (see the lists above) and simultaneously working within the statutory limitations found in Texas Penal Code §15.031.
This may involve a detailed, independent investigation into the underlying facts of the case, and the delving into the file provided by the prosecutor as the state’s evidence. Was there an illegal search? Were federal constitutional protections involving due process violated? Was the seizure of property illegal under state or federal law?
For those facing charges of Criminal Solicitation of a Minor, a strong defense may result in an heated evidentiary fight, either in plea negotiations or in a hearing before the judge challenging the authenticity or admissibility of the ADA’s case. For more here, read “What is a Motion to Suppress.”
Criminal defense of these kinds of cases is complex and detailed, both in analyzing the law involved and applying it to the particular facts of the case.
The defense must also remain aware at all times of the potential bias against the accused in these matters, which involve allegations of sex crimes with children, and be prepared to take steps to insure that the accused receives fair and impartial treatment.
For more details on various criminal laws defining child sex crime felonies in Texas, read our past discussions in:
- 10 Things To Know About Felony Child Porn Charges In Texas; and
- Probation in A Federal Child Porn Case: Case Study by Defense Attorney Michael Lowe.
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