CRIMINAL JURISDICTION

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

July 17, 2009

CHILD ADVOCATES OR HIRED GUNS?

Filed under: Child Abuse Crimes Lawyer — Tags: , , , , , — johntfloyd @ 1:34 am

Criminal Defense Attorneys Must Be Prepared To Aggressively Challenge Child Assessment Center, Child Abuse Experts

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

The “Mission” statement of the Houston Children Assessment Center “is to provide a professional, compassionate, and coordinated approach to the treatment of sexually abused children and their families and to serve as an advocate for all children in our community.” In its 2008 Annual Report, Yolanda Green, President of the Board of Directors of CAC, added that CAC “is an agency where children whose lives have been torn apart are given hope and the opportunity to begin the road to recovery.”

The CAC, which was founded in 1991, has morphed into more than a child advocacy and protection center. It has become a quasi-official arm of law enforcement and supplies professional witnesses for the Harris County District Attorney’s Office in child sexual assault cases. Virtually every criminal defense attorney in Harris County who has tried a child sexual abuse case faced a CAC “expert” brought into court to testify for the prosecution about these cases. The agency has a history of misrepresenting the facts in these cases to Harris County juries, sometimes at the behest of the District Attorney’s Office.

For example, in April 2004 former Harris County District Attorney Chuck Rosenthal was forced to admit that “faulty physical exams” performed by a former nurse at CAC had put in jeopardy some 170 child sexual abuse cases and had possibly resulted in the wrongful conviction of some people.

Children suspected of being the victims of sexual abuse are given physical examinations, counseling and other services at CAC. The District Attorney’s office then uses the center’s “experts”, such as the former nurse who conducted the faulty physical exams in 2004, to testify about the impact on the abused children. Despite the 2004 fiasco, the District Attorney’s office continues to utilize CAC “experts” in child sexual abuse cases, knowing full well the center’s propensity to distort data in this sensitive field. (more…)

June 23, 2009

A DEFENSE ATTORNEY IN THE HEAT OF BATTLE

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , — johntfloyd @ 12:03 pm

Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct

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

Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant.

Ocon’s attorney conducted a diligent and comprehensive voir dire of several dozen prospective jurors before twelve were chosen to hear the case against Ocon. Those twelve jurors took a solemn oath to be fair and impartial. Like most defense attorneys at the conclusion of voir dire and after the jurors were sworn, Ocon’s attorney knew there were probably a couple jurors who would not approach the case with an open mind despite their sworn duty to do so. But the attorney had put forth his best effort to select the kind of fair and impartial jury to which his client was entitled under both the federal and Texas constitutions.

But nothing throughout the jury selection process had prepared Ocon’s attorney for what he would encounter on the second day of the trial. During a brief recess, the attorney entered the men’s restroom in the county courthouse. He overheard someone in the next stall talking on a cell phone. The following are portions of the conversation the defense attorney heard:

Brenda – They’ve got me on this damn jury … I don’t know why the hell they picked me … I would rather be on a double ax murderer then [sic] this damn case … It’s dirty, disgusting … No, unless we convict the bastard today, then I’m kind of stuck here. (more…)

April 11, 2009

CHILD PORN: AN INCREASING PROBLEM IN ALL SEGMENTS OF SOCIETY

Filed under: Child Abuse Crimes Lawyer, Sexual Assault Crime Attorney — Tags: , , , , — johntfloyd @ 12:00 pm

Federally Funded Task Forces Make Online Crimes Against Children Top Priority

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

There has been a recent rash of media reports about local residents getting arrested or sentenced for possession of child pornography. For example, on March 13, 2009, the Houston Chronicle carried a report about a Houston attorney being given a six and one-half year sentence by U.S. District Court Judge Sim Lake. Williamson possessed 84 child pornography images on his computer. After he completes his prison sentence, the suspended attorney will be under “supervised release” for the rest of his life, must register as a sex offender, and attend a sex offender treatment program.

The following day the Chronicle carried a story about a 24-year-old Somerset, Kentucky man being charged with promotion of child pornography, online solicitation of a minor and sexual performance of a child. He was indicted for persuading an 11-year-old Humble girl to send him nude photographs of herself while the two played video games online with their PlayStation 3 consoles last December.

“This is another venue these guys are getting to use now that hasn’t been seen before,” Sgt. Gary Spurger, a Harris County Precinct 4 deputy constable, told the Chronicle. “They’re on PlayStation or Xbox playing online games.”

A March 19, 2009 Chronicle article featured the arrest of a former member of Bikers Against Child Abuse, a child abuse prevention organization. He was also arrested for possession of child pornography. And that same day the Chronicle carried yet another story about the federal child pornography indictment of a convicted sex offender already serving time in a state prison for a 1996 possession of child pornography conviction. This man had been given a state probation but had it revoked after he failed to register as a sex offender. The current federal indictment charged Hale with possessing child pornography while he was on state probation. (more…)

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…)

« Newer Posts — Older Posts »

Powered by WordPress © 2010 John T. Floyd III Crimnal Defense Attorney : Webmaster Kevin Grey Lee