TOP 10 MISTAKES IN SEXUAL ASSAULT AND INDECENCY WITH A CHILD

CASES
By Michael Lowe, Esq.
1. Can You Get Probation?
This may seem like an obvious question but its 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 ones 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:
1. Murder
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. 1
st
degree Injury to a Child, Elderly or Disabled
11. Sexual Performance of a Child
12. 1
st
degree Solicitation of a Capital Offense under Penal Code 15.03
13. Compelling Prostitution
14. Trafficking of Persons
15. 1
st
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.
Ive talked about this one before:
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 youve got nothing to hide, whats the harm? This is false. There will
always be another side to the investigation that you wont be privy to. You wont know the lies
that are being said about you. How can you respond to unknown accusations? Its impossible
and very likely you will hurt yourself much more than help yourself in such a situation.
The police wont 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 Attorneys 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. Dont Order CPS Records.
What do I mean order? Thats a good question. Most commonly an attorney will make a
request for certain discovery from the DAs office. For 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 DAs 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 thats been codified in
39.14 of the Texas Code of Criminal procedure subsection (h).
What if the state isnt aware of the Brady material? What if the state doesnt 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 TECUMfrom 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 clients case.
4. Dont 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.
Thats 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 victims recantations.
Unfortunately, my client was already serving time in the Penitentiary when he hired me to
uncover this injustice.
If you dont believe me, read the finding from the Special Master appointed to make findings of
fact concerning my Writ of Habeas Corpus.
5. Dont 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 thats what everyone else calls them,
even though thats 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 cant 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 arent 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. Dont 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 isnt
required to release any of these records requested until after theyve completed their
investigation. This is free to do and is a no-brainer, in my opinion.
7. Dont 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
examiners 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 its 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 DAs 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)
1
ST
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 youve 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 (2
nd
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
1
st
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
2
nd
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. Dont 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 theres 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. Its important to find a lawyer thats tried many cases and is
comfortable trying these types of cases to a jury. I can help you. Please dont 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 cant tell the difference between the truth and a lie, or the child isnt a competent witness
because he/she cant distinguish between reality and fantasy.
Here is a good paper that provides some guidance on excellent forensic questioning techniques.
Its 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.