What You Need to Know About Indecency With a Child Charges in Texas
Indecency With a Child cases are delicate and complicated to defend. Although our legal system is built on a presumption of innocence, those accused of sex crimes involving children often must prove their innocence to prosecutors, judges, juries, and the general public.
You cannot allow embarrassment or fear stop you from getting help, immediately. Legal protection in the early stages of the case is essential, and Fort Worth criminal defense attorneys James Luster and Cody Cofer can help if you are facing charges of indecency With a Child with discretion and compassion.
State and federal laws regarding sex crimes are complex and extensive, including a charge of indecency under the Texas Penal Code. The following is some of the most important information you should know about indecency charges.
Texas Penal Code 21.11
Review of the Texas Penal Code may provide a better understanding of the elements of a charge of indecency, including:
Sexual Contact (Fondling)
Under Section (a)(1) of Penal Code 21.11, an individual commits the crime of Indecency With a Child if they have sexual contact with a child under 17 years old. Sexual contact includes the following:
- Touching a child’s anus, breast, or genitals (over or under clothing)
- Causing a child to touch someone else’s anus, breast, or genitals (over or under clothing)
You may see the terms “sexual contact” and “fondling” used interchangeably in your documents. The charge of Indecency by Sexual Contact brings along second degree felony punishment as prescribed by the Texas Penal Code.
Under Section (a)(2) of Penal Code 21.11, an individual commits the crime of Indecency With a Child if they do the following for the purpose of sexual arousal or gratification:
- Exposes their anus or genitals when knowing a child is present
- Causes a child to expose the child’s anus or genitals
The charge for Indecency by Exposure is a third degree felony if the person does not have a prior criminal history.
Romeo and Juliet Laws
Penal Code 21.11 outlines an affirmative defense based on age that allows for some flexibility. An affirmative defense beats the criminal charge in the following situations:
1. The person charged was not more than three years older than the child; AND
2. The person charged and the child are of the opposite sex; AND
3. The person charged did not use duress, force, or threats against the child; AND
4. The person charged was not already required to register as a sex offender.
Even if you believe these facts may apply to your situation, do not speak to the police, CPS, or other entities about it before discussing it with a criminal defense attorney. If you are wrong, the statements may damage your defense.
Statute of Limitations
There is currently no statute of limitations for this charge. However, not long ago, the statute of limitations was 10 years. Depending on the offense date, your criminal defense lawyer may be able to raise a defense based on the statute of limitations at the time the offense was allegedly committed. This is a complex question of law and fact. You are strongly advised against relying on your own internet research to address this possibility.
Penalties for Indecency With A Child In Texas
A prison sentence for indecency with a child can result from a plea of “guilty” or from a conviction at trial. The following are the possible sentences for someone without a criminal history:
- By sexual contact: two to 20 years in prison; up to a $10,000 fine
- By exposure: two to 10 years in prison; up to a $10,000 fine
If the person already has a felony charge or is already required to register as a sex offender, they may face harsher penalties. For example, two prior felonies may lead to a penalty of 25 to 99 years of life. Prior convictions of sex crimes may lead to an automatic life sentence.
If someone is convicted on multiple indecency counts, the judge can order the sentences be served consecutively, which is also known as “stacking.” However, if the offenses are alleged to have occurred before September 1, 1997, which is the date the state legislature began to allow the accumulation of sentences, then the charges cannot be stacked.
Probation or Deferred Adjudication
If a person pleads “guilty” or “no contest” to the charge, the judge may place the person on deferred adjudication probation instead of sending them to prison. However, if a person is convicted at a jury trial, then the judge cannot place a person on probation or deferred adjudication. Also, if a jury finds a person guilty of these charges, then the jury cannot assess probation if the victim was younger than 14 at the time of the offense. Further, a jury cannot sentence someone to probation if the person has a prior felony conviction.
Probation can last up to 10 years and includes several conditions. People on probation for this charge cannot go near places where children commonly gather or participate in any program that includes children. They also must attend psychological counseling.
Eligibility for probation is very complex, so it is essential to work with a Fort Worth defense attorney who understands the intricacies of Texas Code of Criminal Procedure Chapter 42A.
Texas Parole Law For Indecency With A Child
Strict parole laws apply to individuals who are sent to prison under this charge. Parole can only be granted once the person has served half of their prison sentence or at least two years. For example, if someone has a three year sentence, they must serve two years even though that is longer than half of their sentence.
Once an individual is eligible for parole, at least two-thirds of the parole board must vote in favor of their release. If the person is released on parole, they must follow a strict set of rules or risk being sent back to prison. The specific parole rules are found in Texas Government Code Chapter 508.
Sex Offender Registration
If you are convicted or placed on deferred adjudication or parole for this charge, you will have to register as a sex offender according to state law. The required registration length for exposure charges is 10 years after the sentence is served for those with no criminal history. The registration length for sexual contact charges is for life. Failing to register is a separate crime that a person can be sent to prison for.
Under Article 42.016, an individual required to register as a sex offender for this charge must be issued a unique ID. This means that any time the person uses their driver’s license or state ID, they are announcing that they are a registered sex offender.
State and federal registration requirements differ, and the Lone Star State tends to have stricter requirements for registration than the federal law. If you have been convicted, you should consult with a local criminal defense lawyer to fully understand your situation.
Waiving Registration for Young Adult Charges
In some cases, younger adults placed on probation for this charge can have the sex offender registration requirement waived. A person can request this waiver under the following circumstances:
1. The person sentenced does not have any other offenses for which they must register as a sex offender;
2. On the date the indecency occurred, the person charged was not more than four years older than the victim;
3. The victim was at least 15 years old; AND
4. The exposure or sexual contact was consensual between the victim and the person charged.
The judge will consider all of the evidence involved in the case when deciding whether or not to grant this exemption. This means that your criminal defense attorney must be prepared to explain why you should not be required to register.
Depending on the circumstances of the offense and the actions that your criminal defense attorney takes, there can be a number of possible outcomes for your case.
No Billed by Grand Jury: Before an indecency case goes to trial, a Grand Jury must decide that there is probable cause to move forward. If the Grand Jury decides that there is not probable cause, they will “No Bill” the case, which ends the court proceedings.
Dismissed by Prosecutor: The prosecutor can dismiss the case before or after the charge goes to the Grand Jury. In many cases, the defense has several months to work on convincing the prosecutor to dismiss the charge before it goes to trial.
Not Guilty at Trial: Only about two percent of criminal cases go to a jury trial, so being found “not guilty” at trial is the least common outcome. It is a possibility, though.
Plea Agreement: Most indecency cases are resolved with a plea bargain. The prosecutors will agree to a certain punishment in exchange for your “guilty” plea. If you hire a lawyer with extensive trial experience, the prosecutor will feel less confident about winning the case, so they will be more likely to offer a plea agreement.
Terms, Definitions, and Abbreviations:
You may see the following terms or abbreviations on your paperwork or court documents:
- Indecency W/A Child Exposes: an abbreviation for the third degree felony charge contained in Penal Code 21.11(a)(2).
- Indecency W/A Child Sexual Contact: an abbreviation for the second degree felony charge contained in Penal Code 21.11(a)(2).
Definition of Gratify
Penal Code 21.11 states that a person commits an indecency offense if they engage in sexual contact with a child with the intent to arouse or gratify sexual desire. The word “gratify” is not defined by state law and is kept purposefully vague. No appellate cases in the state have focused on the meaning of the word, so it should be interpreted according to its common usage.
Age of Consent
The age of consent is the age at which someone can legally consent to sexual activity. In Texas, the age of consent is generally 17, so a person younger than 17 is considered a child with regard to indecency laws.
The Romeo and Juliet Law is the term given to a statutory provision that makes sexual conduct between people close in age non-criminal. It also allows for a significantly reduced punishment in cases of indecency with a Child, where the sexual conduct is still considered criminal.
Even if you think you are protected under the Romeo and Juliet Law, you should speak to a criminal defense attorney before giving any information to police or CPS. This area of the law is complicated, and it is easy to accidentally say something that will incriminate you.
Some prosecutors and jurors are willing and able to seek a conviction for indecency when there is no physical evidence. The Fort Worth police department has a dedicated “crimes against children” unit, and the Tarrant County DA’s office employs prosecutors who are specifically focused on crimes in which children are the alleged victims. You must hire an attorney that will carefully prepare your case from day one.
If the alleged victim is under 14 years of age, certain hearsay statements they make describing the alleged crime can be used as evidence at trial. The only person who can testify about these statements is the first adult to whom the alleged victim made a statement about the offense.
However, the state sometimes “cherry picks” the witness they believe will make the best presentation to the jury. This is known as an “outcry witness.”
Double jeopardy is the constitutional principle that protects against multiple punishments for the same crime. This principle does not always apply to indecency cases, though. The Court of Criminal Appeals has determined that an individual can be convicted of both indecency by sexual contact and by exposure even if both charges arise from a single act.
Unfortunately, false accusations of sex crimes do occur. Police, investigators, and prosecutors must take all allegations seriously to protect victims and penalize offenders. Because of this, the mere hint of allegations can be enough to destroy a person’s life.
You should always take a false accusation made against you seriously. Even if you know you did nothing wrong, the allegation will not disappear. It may lead to the most difficult experience of your life, so you must speak to an experienced attorney right away to give yourself the best chance of beating the accusation.
Tarrant County Indecency Cases
A special group of prosecutors in the Tarrant County DA’s office handle cases in which children are the victims. Although not all cases are assigned to this group, sexual abuse allegations are only handled by experienced assistant district attorneys.
Indecency cases can sometimes be won before they are indicted if the defense attorney convinces the police, prosecutor, or jury that the case should not move forward. The DA’s office has a short list of experts they trust. If your lawyer presents the prosecutor with a report from one of these trusted and reliable professionals, the DA’s office will likely take it seriously. Therefore, it’s vital to work with an attorney who has a well-established network of experts and investigators in cases of indecency with a child.
Magistrates in Tarrant County often set high bonds for indecency with child. Someone released on bond for an indecency charge will also have to follow bond conditions, which are strict rules that may remove you from your home or keep you away from your children. It’s important to work with a knowledgeable criminal defense attorney who can negotiate your bond to a reasonable amount and request that your bond conditions be lessened or revoked.
Tarrant County Lawyers
James Luster: James Luster is a Tarrant County criminal defense lawyer with extensive experience defending indecency cases and other sex crimes. He worked as a prosecutor in Lubbock County and in the Tarrant County DA’s office, so he knows how these cases are handled from both sides.
Cody Cofer: Cody Cofer is a Tarrant County criminal defense attorney with close to a decade of criminal defense and appellate experience. He previously worked as a prosecutor for the Henderson County Attorney’s office. Tarrant County prosecutors, judges, and law enforcement officers know Cody and his no-nonsense approach well.
Contact a Fort Worth criminal defense attorney today for help with state or federal sex crime charges.