Possession of Child Pornography

If you are or a loved one is facing a possession of child pornography charge, you need to speak to a criminal defense lawyer as soon as possible. These charges are very serious, and they carry a stigma. They require an attorney with the skills and expertise to handle them, and see them all the way through. Child Pornography Offenses are outlined in Section 43.26 of the Texas Penal Code. To get convicted under Texas law, the State must prove beyond a reasonable doubt that that person intentionally or knowingly possessed or accessed visual material that the person knows visually depicts a child younger than 18 years old engaging in sexual conduct. Possession or promotion of child pornography is also a crime under Federal law. Although a person can be charged under either Texas or Federal law, this page specifically discusses aspects of the Texas Law.       

Have you been charged with Possession of Child Pornography? Call criminal defense attorney Andrew Deegan at (817) 689-7002.    

In serious cases like these, law enforcement can move very quickly and decisively. It is crucial for a person accused not to harm their case in the early stages. This occurs when a person gives incriminating statements to law enforcement before hiring a lawyer. Consulting with and retaining an attorney as soon as possible is the smart move, even if there has not been an arrest made yet. Possession of child pornography charges are often very complex cases, and difficult to defend for several reasons. The nature of these charges obviously involves children, and cases involving children are pursued very aggressively by law enforcement and district attorneys. These cases can also be complex because of the nature and stigma attached to this crime. Also, there are different, intersecting areas of law involved, such as First Amendment law as well as nuances of electronic evidence, that can make child pornography unique and specialized to handle.           

What is the Law in Texas? 

As noted above, possession of child pornography is located in Section 43.26 of the Texas Penal Code. This section will discuss the statute and law in greater detail. As mentioned above, possession of child pornography is illegal under both Texas and Federal law. If a person is charged under Federal law, the offense is called Sexual Exploitation of Children, and the crime is found under 18 U.S.C. § 2251. Whether a person will be charged under Federal or State law is often up to the Feds, who will decide whether or not they want to pursue it, or let the State of Texas handle it instead. A person can be charged under both Federal or State law and this does not violate double jeopardy. Texas statute 43.26 confronts two crimes, possession and promotion. Here are portions of 43.26 Possession or Promotion of Child Pornography.   

(a) A person commits an offense if:

(1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and

(2) the person knows that the material depicts the child as described by Subdivision (1).

The penalties for Promotion of Child Pornography, as well as the statutory presumption that that a person is possessing child pornography with the intent to promote, are also detailed in 43.26.      

(e) A person commits an offense if:

(1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and

(2) the person knows that the material depicts the child as described by Subsection (a)(1).

(f) A person who possesses visual material that contains six or more identical visual depictions of a child as described by Subsection (a)(1) is presumed to possess the material with the intent to promote the material.              

What Does Possessed or Knowingly Accessed Mean?  

Challenging possession can be everything in a child pornography case. It is very important. Possession is an essential element to the crime. Without possession, there is no crime. To convict a person, the state must prove intentionally or knowingly possessed, or intentionally or knowingly accessed with intent to view. What does it mean to possess something legally? Possession is a legal concept with a specific legal definition. Section 1.07(39) of the Texas Penal Code defines possession. It means “actual care, custody, control, or management.”

The battle over how care, custody, control, or management apply in the context of a criminal case often arise in drug charges. In a possession of cocaine case, this can be a very simple analysis. For instance, if police find cocaine in a man’s jacket pocket after a lawful search. But this can be much more complicated in the world of digital evidence. Many of these cases involve the search and seizure of computers and hard drives or cloud storage. How a person possesses a pdf or a jpeg file is sometimes not as simple as police cocaine in your pocket. Entire defenses can be built from this. Accessing child pornography with intent to view also has its pitfalls and can be tough to prove.              

What is Sexual Conduct?

“Sexual conduct has a specific legal definition according to Section 43.25 of the Texas Penal Code. Sexual conduct is a conceptually broad term. Sexual conduct means “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”[i] Most of these terms, such as “Deviate sexual intercourse,” and “sexual contact,” are also codified in Chapter 43 of the Penal Code. Deviate sexual intercourse means: “any contact between the genitals of one person and the mouth or anus of another person.” “Sexual contact” is defined to “include deviate sexual intercourse, sexual contact, and sexual intercourse.”     

How Can I Fight This Charge? 

To adequately prepare a defense for this charge requires time, preparation, and skill. As I’ve mentioned, these cases are complex. These cases are prosecuted aggressively. Everyone is fighting against the person accused of possession of child pornography, and the only person fighting for the person accused is their attorney. It cannot be overstated how important it is to hire the right attorney in defense of these cases. At every stage, a defendant needs a skilled criminal defense lawyer. The next part of this article looks at the stages of a possession of child pornography case. 

What are the Stages of My Criminal Defense? 

Along the spectrum from arrest to trial, there are several different stages. There is the pre-indictment, and indictment, pre-trial, and trial. Many cases do not go to trial. Although some cases do not get passed the indictment phase, it does not take much for a case to get indicted. Many child pornography cases get settled in pre-trial with plea bargains.        

What is a Grand Jury Indictment?   

With this kind of a charge, it can be important to have a defense attorney at the indictment stage.  Defense attorneys can make limited presentations to the grand jury, and, in contestable cases, sometimes this can make all the difference. All felony charges in Texas must go through the grand jury process. Unlike jury trials and courtrooms in general, the grand jury process is not an open process. It is closed, even to defense lawyers. However, the defendant can testify to the grand jury, if he or she wants to. Other witnesses can also testify. Cases that do not get indicted are also called “no-billed.” If the case gets no-billed, the person wins in this early stage, and the case against them goes away. Although, it can be indicted again later. Cases that get indicted will then funnel into one of the Criminal District Courts.

What are Pre-Trial Settings?

Most cases do result in indictment. The level of proof needed for an indictment is much lower than the level of proof needed for a conviction. When a case gets indicted, it will channel into a Criminal District Court. In Tarrant County, for instance, there are ten Criminal District Courts. Pre-trial settings are an opportunity for your attorney and the District Attorney to discuss your case. In this stage, your lawyer will evaluate the evidence, conduct investigation, and negotiate your case. In Tarrant County, there are four pretrial settings before the case gets transferred to a contest docket. Other counties across the are such as Dallas, Parker, and others, are run in a similar way. There are multiple opportunities for your attorney to seek and work out the best deal.

What Would a Trial Look Like?

Sometimes discussions between the state and defense attorney fall apart. This is generally because the state’s offer is too burdensome for the defense to accept, and the case gets put on a jury trial docket. Trial preparation for these types of cases is long and exhaustive. These are hard cases, and the stakes are very high.

A jury trial for a serious felony like possession of child pornography consists of several stages, and lasts several days at minimum. The first stage involves picking the jury. This stage is called voir dire or jury selection. For jury selection, between sixty and eighty prospective jurors will enter the courtroom. They will file in and crowd the benches. If the case is high profile, there could be more. The jurors will have filled out questionnaires beforehand. The defense attorney and the state’s attorney will each get a chance to stand up and talk to the group for at least an hour. The exact time limits are set by the judge. The more time that is given, the better.

The primary purpose of voir dire is to discuss the law that the jury will apply, and to eliminate jurors who have trouble following the law, or have bias in any way. Many people will admit that they cannot be fair in a child pornography case. This is normal. When the jury is finally seated, twelve jurors will sit and decide a felony case. This stage is crucially important to the case. It  cannot be overstated how important selecting the right jurors is to a favorable outcome in the case.  

When the jury is seated, they will be sworn in by the judge. At this point, opening statements are made by both sides. This is the final opportunity both sides will have to talk directly to the jury until closing argument. After opening statement, the state will begin their case in chief. This consists of witnesses.  Police officers who investigated the case will have to testify. Other persons who have relevant personal knowledge of the facts of the case might also testify. After all the state’s witnesses have testified, the defense can either put on evidence or rest. The defense has no obligation to put on any evidence.  However, it is at this stage that the client may choose to testify. The strategy involved in deciding whether a person will testify can be nuanced and complex, and a discussion of these dynamics can fill an entire book. Ultimately, it the client’s decision if he or she wants to testify.

After both sides rest, the judge reads the jury the charge, and closing arguments will begin. After closing arguments, the jury will deliberate until reaching a verdict. If a verdict cannot be reached, a judge will declare a mistrial.                       

What is Punishment for Possession or Promotion of Child Pornography?

Both possession and promotion of child pornography are felony charges, although promotion is more serious. This means that, if convicted, a person could receive a prison sentence. Although, probation is also a potential outcome. Possession of child pornography is a third-degree felony. A third-degree felony comes with a potential range of punishment of between two and ten years in prison, and up to a $10,000 fine. Promotion of child pornography is a second-degree felony. A second-degree felony comes with a potential range of punishment between two and twenty years in the Texas Department of Corrections, and up to a $10,000 fine.                     

What are Some Defenses?   

No matter what the facts are in the case, or how strong the evidence is, there is always a defense to be crafted and presented. There is a constitutional right to present a defense in a criminal case. This is the reason that a person hires an excellent criminal defense lawyer. What the defense is in any case will differ depending on the facts of the case. What the evidence is will dictate what the defense is. In additional to the usual defenses, there are also some affirmative defenses. An affirmative defense occurs when the person admits the conduct, but provides a legal justification. Here are the three affirmative defenses from Section 43.25(f):

  • The defendant was the spouse at the time of the offense;
  • The conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
  • The defendant is not more than two years older than the child.   

[i] Texas Penal Code, § 43.25(2)

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