CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

April 8, 2009

WHAT IS SEXTING?

Filed under: Child Abuse Crimes Lawyer — Tags: , , , — johntfloyd @ 1:46 pm

Sexting Among Children; Criminal Behavior or Brash Sign of the Times

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

First, and foremost, “sexting” among teenagers can be a crime. Second, it’s stupid, sophomoric behavior that can quickly ruin reputations, destroy employment opportunities, and cost a lot of money to deal with its legal consequences.

“Sexting” is a term, according to Urban Dictionary, created by the media which refers to the sending or posting of sexually suggestive text and images in cyberspace. The National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com recently released the results from the first study ever conducted concerning the relationship between sex and cyberspace.

The study, Sex and Tech: Results From a Survey of Teens and Young Adults, produced some disturbing findings. For example, it found that a “significant number of teens (age 13 thru 19) have electronically sent, or posted online, nude or semi-nude pictures or video of themselves.” One in five of the 653 teens surveyed engaged in this risky behavior with 22% of the surveyed girls having engaged in sexting and 18% of the boys having done so.

This group of teens are even more heavily involved in sending sexually suggestive messages. 39% sent or posted sexually suggestive messages: 37% of the girls and 40% of the boys. 48% of the teens said they had received such messages. (more…)

March 31, 2009

A TEXAS BIGAMY DEFENSE

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:48 am

The Constitutional Implications of Lawrence v. Texas on the Texas Bigamy Statute

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The State of Texas will probably experience of series of bigamy trials stemming from the mass arrests made in the “infamous FLDS case” last year. The John T. Floyd Law Firm has been asked on a number of cases if there is a legitimate constitutional challenge to the Texas bigamy statute. See: Tex. Penal Code, § 25.01.

This answer to this question must necessarily begin with an analysis of a 2006 decision by the Utah Supreme Court, which rejected a litany of constitutional challenges to that state’s bigamy statute, and compared to the Texas statute. See: Utah v. Holm, 137 P.3d 726 (UT 2006), cert. denied, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007).

Rodney Hans Holm was convicted in Utah for bigamy and unlawful sexual conduct of a minor. He was legally married to Suzie Stubbs in 1986. As a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS), he participated in a “religious marriage ceremony” with Wendy Holm. At age thirty-two, Holm participated in yet another “religious marriage ceremony” with the sister of Suzie Stubbs, sixteen-year-old Ruth Stubbs. Ruth moved into Holm’s house where Suzie, Wendy, and their children already resided. By the time Ruth turned eighteen, she had conceived two children with Holm. Id., at 730.

Holm was arrested, charged with three counts of unlawful sexual conduct with a minor, and charged with one count of bigamy. The jury returned a guilty verdict on each of the charges, and Holm was sentenced to five years on each conviction, with the sentences to be served concurrently, and fined $3,000.00. The sentences and fine were suspended conditioned on three years probation, one year in the county jail with work release, and two hundred hours of community service. Id., at 731-32. (more…)

March 25, 2009

FLDS REVISITED: ONE YEAR LATER

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 11:56 pm

Aftermath of the Texas CPS Raid

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In the fall of 2003 members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) arrived in Eldorado, Texas. They purchased a 1700-acre ranch four miles outside of town. They called it the “Yearn for Zion Ranch” (“YFZ”). More members arrived. They constructed a mammoth temple and created their own community. They lived in peace.

While rumors circulated about in nearby Eldorado that the FLDS was a “polygamist cult” with older men taking multiple teenage girls as wives, there was no evidence of any criminal wrongdoing at the ranch. That is, until March 29, 2008 when a deranged African-American woman pretended to be a 16-year-old former FLDS resident twice impregnated by an older man and called a local domestic violence hotline saying she had been sexually and physically abused at the YFZ ranch. Women at the crisis center took this egregious false report to law enforcement, including the Texas Rangers, and the fires of one of the largest and most costly religious witch-hunts in Texas history were lit. There was no controlling the massive law enforcement and child protective services stampede that ensued.

Five days after the Rosita Swinton false report to the domestic violence hotline, the Texas Rangers and local law enforcement agencies, supported by Texas Child Protective Services (“CPS”), launched a massive, military-style raid on the YFZ compound. They threatened and generally terrorized the approximately 700 people living at the ranch, including more than 400 children. They conducted searches of all the buildings on the compound, including the temple. They seized documents and arrested people—all without any reasonable probable cause.

But worst of all, CPS seized and removed 439 FLDS children from the lawful custody of their parents. CPS had no legitimate cause, and certainly no legal authority, to sever the cherished child-parent relationship. While a local judge, apparently influenced by local politics and a mindset similar to CPS workers, held that the removal of the children was legal, she was quickly reversed by a state appeals court that pointed out just how flagrantly she had violated Texas family law. (more…)

February 14, 2009

OBJECTIONS, BOLSTERING, AND APPELLATE REVIEW

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , , — johntfloyd @ 6:33 pm

Objections to Bolstering Testimony Should Communicate Evidentiary Basis

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

The Texas Rules of Evidence, Article 103, requires that a timely objection be based on a specific ground in order to preserve for appellate review an alleged trial error concerning the admissibility of evidence.

An en banc Texas Court of Criminal Appeals seventeen years ago held that “… all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” See: Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim. App. 1992).

The Court of Criminal Appeals recently reaffirmed the Lankston principle that objections to the admissibility of evidence must be both timely and specific to preserve an issue for appellate review. See: Rivas v. State, 2009 Tex. Crim. App. LEXIS 98 (Jan. 28, 2009). The Rivas court rejuvenated the language of Lankston to set the stage for its ultimate ruling, saying:

“Our system of justice is characteristically adversarial. One consequence is that many substantive and procedural features, especially most evidentiary rules, are really optional with the parties. Although we may speak of evidence as inadmissible, it is more precise, if not more correct, to say that the rules make such evidence objectionable. Indeed, this is just another way of calling attention to the fact that no issue concerning the admissibility of evidence ever arises unless one of the parties objects to it.

”It follows that the trial judge’s role in the admission and exclusion of evidence is generally not called into play unless a dispute develops between the parties concerning the proper application of an evidentiary rule. And because, absent any such dispute, our system generally expects him not to interfere with the presentation of evidence, it likewise does not fault him for refusing to interfere when a party fails to make the basis for his objection known. Beyond this, there are no technical considerations or form of words to be used. Straightforward communication in plain English will always suffice.” Id., at LEXIS 1-2. (more…)

February 7, 2009

OBSCENE EMAILS AND CARTOONS NOT PROTECTED BY FIRST AMENDMENT

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 3:25 pm

Obscene Drawings, Cartoons, Sculpture, Paintings that Depict Minors Engaged in Sexually Explicit Conduct Not Protected Free Speech

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

On March 30, 2004, Dwight Whorley visited a public resource room maintained by the Virginia Employment Commission in Richmond. The room is equipped with Commission computers, printers and copiers which may be used by job seekers. A woman in the room noticed that Whorley was receiving what appeared to her as child pornography on a Commission computer. She promptly alerted Commission staff about suspicions. An officer manager and two supervisors went to the resource room where they found Whorley standing in front of a printer with some papers in his hand. One of the supervisors requested that Whorley show him the documents. Whorley complied. The documents depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.

The office manager made a determination that Whorley had inappropriately used the Commission’s computer, restricted him from further use of the computer, and escorted him from the premises. The manager then returned to the computer Whorley had been using and found his Yahoo e-mail account was still open. Commission employees discovered several more copies of the sexually explicit anime-style cartoons by the computer. After printing off several of Whorley’s e-mails and removing the computer from service, the Commission office manager notified his supervisor and state police about the incident.

A subsequent law enforcement investigation determined that Whorley was already on a federal probation for a 1999 conviction for downloading child pornography on a Virginia Commonwealth University computer at the time of the Commission incident. The local U.S. Attorney’s Office presented to a grand jury the cartoons copied by Whorley at the Commission room, the data in the computer he used in the room, and information received from Yahoo about his e-mail account. Based on this evidence, the grand jury returned a 75-count indictment against Whorley alleging:

Counts 1-20 charged that on March 30, 2004 Whorley knowingly received obscene cartoons in interstate and foreign commerce in violation of 18 U.S.C. § 1462. These counts were based on 20 cartoons depicting prepubescent children engaged in sexually explicit acts (including masturbation, intercourse, and oral sex) with adults, some of which were coerced. (more…)

January 2, 2009

ONLINE SOLICITATION OF A MINOR

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 5:35 pm

Online Solicitation of a Minor Statutes and Free Speech

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech.

Existing case law, however, indicates this will be a difficult constitutional violation to establish. A First Amendment challenge to a criminal statute must be based on two established constitutional doctrines: overbreath and vagueness. First, “the overbreath doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

Although similar, the vagueness doctrine is not identical to the overbreath doctrine. A criminal statute runs afoul of the First Amendment for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” See: Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)

The issue of whether § 33.021 violates either doctrine has not been addressed by either the Texas Court of Criminal Appeals or the federal courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. § 2422(b) which prohibits: (more…)

October 18, 2008

THE PITFALLS OF DELAYED OUTCRY TESTIMONY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 4:05 pm

Hearsay Statements of Child Abuse Victims and Delayed Outcry

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

“Hearsay” is a statement, other than one made by the declarant while testifying at a trial or hearing, offered into evidence to prove the truth of some matter being asserted. See: Tex. R. of Evid. 801. In English, hearsay is testimony about what somebody heard from somebody else. Hearsay testimony is generally inadmissible in a criminal trial. See: Tex. R. of Evid. 802. However, Article 38.072 of the Texas Code of Criminal Procedure provides an exception to the hearsay rule by allowing hearsay testimony in the prosecution of an offense committed against children twelve years of age and younger.

§ 38.072 is known as the “child outcry statute.” The statute applies only to statements made (1) by the child against whom the offense was allegedly committed and (2) to the first person to whom the child makes a statement about the offense providing that person is eighteen years of age or older. See: Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref’d).

The appeals court in Brown v. State, 189 S.W.3d 382 (Tex.App.-Texarkana 2006) addressed the “outcry” issue at some length. The case involved a 10-year-old child victim who was sexually assaulted by a friend of her father. The child reported the sexual abuse to her father. The victim was subsequently interviewed, at the behest of investigating officers, by a counselor with the Child Advocacy Center. The victim told the counselor that the first two people she told about the sexual assaults were her father and the girlfriend of the defendant. She also said that she later told her brother, aunt, and uncle. Id., at 384. At trial she prosecution called the counselor as an “outcry” witness to testify and introduced a videotape of the counselor interview with the child victim during the counselor testimony. Id., at 385.

On appeal defendant argued that by allowing the counselor to testify and permitting the introduction of the videotape, the trial court had violated the “outcry” provisions of § 37.072. The appeals court agreed. It pointed out that the victim had made outcries to her father and the defendant’s girlfriend before speaking to the counselor. The State argued that the counselor was the proper outcry witness because the victim gave her a more detailed statement about the sexual abuse than she had the other two persons. The court rejected that argument, saying: (more…)

October 16, 2008

FABRICATION:

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 3:11 am

The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:

  • Why would a child lie about sexual abuse?
  • How can a child know so much about sex if she has not been abused?
  • Would a child lie about sexual abuse?
  • Why would a child make the story up?

These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.

Why would a child lie about such a thing?

In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:

“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse. Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.” (more…)

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