Disparate Treatment of Sex Offenders, Punishment and Public Policy

Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair


“Child predator” is now among the two worst words in the American lexicon. A 42-year-old Houston resident, we will call him John Doe, recently learned as much. According to allegations by law enforcement, the Magnolia High School institutional aide decided last October to look up former students on Facebook from high schools where he had worked.


Law enforcement authorities believe it started out as an innocent venture. But it did not remain innocent. A 16-year-old boy responded to John Doe’s query. John Doe had known the teenager at Westwood High School in the Round Rock school district between 2004 and 2007. Austin Detective Joel Pridgeon said the communications between the school employee and student quickly escalated from innocent online chatting to sexual solicitation.


The Houston Chronicle report about the episode did not disclose how law enforcement got involved in the case. The newspaper briefly reported that John Doe confessed when he was confronted by Pridgeon in Houston. The detective then returned to Austin where he secured a warrant charging John Doe with online solicitation of a minor. The school employee could have been charged under either of the two Texas solicitation of a minor statutes.


First, Texas Penal Code Article 33.021 defines “online solicitation of a minor”:


(a) In this section:
(1) “Minor” means:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.
(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
(f) An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. An offense under Subsection (c) is a felony of the second degree.
(g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under thissection, the otherlaw, or both.

This statute was enacted by the Legislature in 2005. Two years later the Legislature increased the penalty for sexually explicit online communication with a minor who is 14-16 years old from a state jail felony to a third degree felony, and increased the penalty for online sexual solicitation of a minor who is 14-16 years old from a third degree felony to a second degree felony.

The second solicitation of a minor statute in the Texas Penal Code is entitled “Criminal Solicitation of a Minor” under Article 15.031. It provides:

a person commits an offense if, with intent that an offense listed by

Section 3g(a)(1), Article 42.12, Code of Criminal Procedure, be committed, the person requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute an offense listed by Section 3g(a)(1), Article 42.12, or make the minor a party to the commission of an offense listed by Section 3g(a)(1), Article 42.12.
(b) A person commits an offense if, with intent that an offense under Section 21.02, 21.11, 22.011, 22.021, or 43.25 be committed, the person by any means requests, commands, or attempts to induce a minor or another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor’s conduct as the actor believes them to be, would constitute an offense under one of those sections or would make the minor or other believed by the person to be a minor a party to the commission of an offense under one of those sections.
(c) A person may not be convicted under this section on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the minor act on the solicitation.
(d) It is no defense to prosecution under this section that:
(1) the minor solicited is not criminally responsible for the offense solicited;
(2) the minor solicited has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution;
(3) the actor belongs to a class of persons that by definition of the offense solicited is legally incapable of committing the offense in an individual capacity; or
(4) the offense solicited was actually committed.
(e) An offense under this section is one category lower than the solicited offense.
(f) In this section, “minor” means an individual younger than 17 years of age.

Recent media reports have disclosed that several Texas school districts have received federal funds to track, detect, and arrest adults like John Doe who engage in sexually explicit chats with students and minors online or to solicit them to engage in specific sexual activity. These adults are considered by the criminal justice system and the general public at large as dangerous “child predators.”

But the way child predators are charged by Texas prosecutors and ultimately punished by judges and juries demonstrate that there is no rational public policy for dealing with these offenders. We have reviewed the facts and punishments in seven cases decided by the various Texas courts of appeals which brought us to this conclusion.

The following cases were prosecuted under § 33.021. They illustrate how law enforcement troll the Internet trying to ensnare child predators searching the Internet for underage sex. The first case involves Joel Douglas Newberry whose conviction by a jury and sentence of ten years were upheld on February 17, 2006 by the Fifth District Court of Appeals sitting in Dallas. See: Newberry v. State, 2006 Tex. App. LEXIS 1360 (Tex.App.-Dallas, Feb. 17, 2006). The appeals court provided the background facts of the case:


“Bruce Marshall, a detective with the Garland Police Department, testified he worked on internet crimes against children. As part of his duties, Marshall assumed the role of a child on the internet. Marshall would select a name and set up a profile of fictitious personal information, including a photograph of the ‘child.’ Marshall’s first contact from appellant came via instant message on January 10, 2002. Appellant used the screen name ‘Hydroponicgreen,’ and Marshall was using the name ‘MandyTX.’ The user profile for ‘MandyTX’ indicated she was a fourteen-year-old girl from Garland, Texas. Marshall also created a profile for ‘Texas14Chica,’ a fourteen-year-old girl named Julie Montez.


”As ‘Texas14Chica,’ Marshall was contacted by appellant on October 21, 2002. In the exchange that followed, appellant asked ‘Texas14Chica’ if she wanted to ‘hook up,’ asked if anyone else was home, and said he would ‘just like to fuck’ and ‘eat you out.’ ‘Texas14Chica’ said she ‘didn’t need no babies’ and ‘14 is way 2 young 2 b a mommy.’ Appellant repeatedly asked ‘Texas14Chica’ if she wanted ‘this’ and told her he did not want to get her in trouble. ‘Texas14Chica’ said she did not want her mom to find out, and appellant replied that he could go to jail if her mom found out. ‘Texas14Chica’ replied that she would be sent to her grandmother in California if her mom found out, and appellant replied that was ‘better than jail.’ Appellant wrote that he used protection and did not ‘have anything.’ ‘Texas14Chica’ gave appellant directions to an apartment in Garland and said she would meet him by the mailboxes. ‘Texas14Chica’ gave appellant a phone number to call which rang a phone in Marshall’s office. Marshall had a telephone voice transformer attached to the phone that allowed him to alter his voice and sound like a young girl. Appellant said he had ‘protection’ and would ‘bring them.’


”Appellant went to the apartment complex and called ‘Texas14Chica’ and asked if she was by the mailboxes. ‘Texas14Chica’ told appellant she would come out to meet him. Marshall communicated with police officers near the apartments, and they arrested appellant. After appellant was arrested, a search revealed a condom in appellant’s pocket and a cell phone in his truck that showed it had been used to call Marshall.” Id., at Lexis 2-3.


The second § 33.021 case also came out of the Fifth District Court of Appeals rendered on August 21, 2008 which upheld his conviction by a jury and 10-year sentence. See: Gurwell v. State, 2008 Tex. App. LEXIS 6329 (Tex.App.-Dallas, Aug. 21, 2008). The background facts of the case are:


“The events giving rise to this charge began in August 2006 when appellant contacted a girl named ‘Emma’ through her MySpace and Yahoo! Accounts. Appellant concedes he believed Emma was a fourteen-year-old girl. Emma was actually a persona created by Collin County Sheriff’s deputy Scotty Morrison. Appellant and Emma chatted via an instant messenger system. Appellant used the screen name ‘rygee253’ and Emma used the screen name ‘tennisgirl0893.’ Over time, the chatting escalated into explicit sexual conversation. The online chat log was admitted into evidence at trial as State’s Exhibit no. 1. Eventually ‘rygee253’ and ‘tennisgirl0893’ agreed to meet at a nearby park. When appellant went to the park, he was arrested by Morrison. Upon being arrested, appellant said he was sorry and that he never intended to have sex with Emma.” Id., at Lexis 2.


While the next two cases deal with online child predators, the defendants were prosecuted under different statutes. The first case was decided by the Eighth District Court of Appeals, sitting in El Paso, on October 23, 2008, upholding a six-year sentence a $2500 fine imposed on Mario Martinez, Jr. a non-negotiated guilty plea. See: Martinez v. State, 2008 Tex.App. LEXIS 8097 (Tex.App-El Paso, Oct. 23, 2008). The appeals court stated the facts of the case as follows:


“After Appellant entered his plea of guilty, the State and Appellant introduced evidence relevant to guilt. Appellant met ‘Macie,’ whom he believed to be a fifteen year-old girl from Garland, Texas, in an online chat room. ‘Macie’ was actually Bruce Steven Marshall, a Garland Police detective assigned to work internet crimes against children. Appellant told ‘Macie’ that he was nineteen years old, but he was actually thirty-one.


”Appellant chatted with ‘Macie’ online numerous times between April 26, 2005 and June 23, 2005. Over the course of their correspondence, Appellant turned the conversations sexual and sent her e-mails containing pictures of his penis. During that period, she referred to her age fifteen times and gave Appellant seven ‘outs,’ or opportunities to cut off contact and get away from the situation. Appellant solicited ‘Macie’ for sexual contact, sexual intercourse, or deviate sexual intercourse a total of twenty-eight times. Appellant never took any of the outs; he asked if she was a police officer.


”When Appellant arrived to meet ‘Macie’ with the purpose of engaging in sexual acts, Marshall arrested and interviewed him. Appellant brought two boxes of condoms to the meeting; each box contained three condoms. Appellant told Marshall that he knew ‘Macie’ was fifteen and unhappiness with his wife’s weight drove him to seek sex online. Appellant also told Marshall that he sought out children rather than adults because ‘kids were more fun to talk to.’ Police found evidence of other chats with minors on Appellant’s computer. In two other conversations, Appellant attempted to solicit sex from two girls, one who claimed to be fourteen and one who said she was sixteen. These conversations occurred on June 22, 2005, the same day Appellant arranged to meet ‘Macie’ and the day before his arrest.


”According to Marshall, Appellant was not a good candidate for probation because he repeatedly attempted to solicit sex from underage girls. Marshall also found Appellant’s willingness to expose himself online to be unusual. Dr. William Carter, a psychologist, completed a psychological profile of Appellant to determine whether he posed any future risk as a sexual offender. In Dr. Carter’s opinion, Appellant would make a good candidate for probation.” Id., at Lexis 2-3.


Joe Alan Cook was not prosecuted under § 15.031. The prosecutor chose to charge him with the more serious offense of attempted aggravated sexual assault of a child under § 15.01 (attempt) and 22.021 (aggravated sexual assault). Cook’s case was decided by the Sixth District Court of Appeals, sitting in Texarkana, on June 6, 2008, upholding a 95-year term enhanced by two prior convictions. See: Cook v. State, 256 S.W.3d 846 (Tex.App.-Texarkana 2008).


“The evidence at trial revealed that, on January 23, 2006, Cook, using the user name, ‘joe_cook_2006,’ entered an internet chat room titled ‘Romance Texas.’ He initiated an online conversation with ‘Kacy’ who had entered the chat room. Cook began the conversation by stating, ‘Hi, I am Joe in Longview. how are you?’ Kacy responded, ‘im fine. 13f.’ Cook asked, ‘13?’ Kacy answered, ‘yeah. thatz all. still wanna chat?’ Cook replied, ‘wow. do you attend Pine Tree then?’ Kacy stated, ‘yup. u knew,’ and Cook replied, ‘from your name, yes.’ Unknown to Cook, ‘Kacy’ who was chatting with him, was actually Sergeant Michelle Stern, an investigator with the Texas Attorney General’s Office who was investigating child exploitation crimes over the internet. The online profile of Kacy that Stern set up represented that Kacy lived in Longview and was a single female whose interests were “music and friends.”


”After several minutes of chatting, Cook moved the conversation to sexual matters. He asked Kacy, ‘so, how personal may I get?’ Eventually, Cook began an online conversation in which he described in graphic detail the sexual acts he would like to do with Kacy. Ultimately, Cook asked Kacy, ‘would you want to get together?’ Kacy answered, ‘r u 4 real?’ and expressed concern that she would get in trouble. In the same conversation, Cook asked if Kacy would like to see his sexual organ. Kacy answered, ‘I have never done it with ne one.’ Cook sent Kacy an image of his sexual organ. In subsequent conversations online, Cook set up a meeting with Kacy where they could ‘make love.’ Kacy said they could meet at the corner of the school, which she reminded him was ‘pine tree jr high.’ During these conversations, Cook described in graphic terms how he would have sexual relations with Kacy, who responded with ‘it will b my first.’ In a conversation finalizing plans for their meeting, Kacy stated, ‘r u sure it wont bug u that im 13?’ Cook answered by saying that it would be better if she were older, but he knew she wanted to do it and an older man should do it so it would not hurt. Kacy also stated to Cook, ‘remember I cant get pg.’ Cook responded, ‘I know, won’t happen, i would get in big trouble, prison for a long time.’ Kacy then asked why, and Cook said, ‘you are under 16 . . . that is against the law.’ Eventually, Cook and Kacy agreed to meet at a place Kacy represented to be where she lived. Cook told her that because his truck had broken down, he would go to her apartment on his bicycle.


”On the morning of February 1, 2006, at about 9:00 a.m., Cook arrived by bicycle at what he believed was where Kacy lived. When he knocked on the door, he was placed under arrest. He had in his possession a pair of underwear, various toiletries, a camera, a pocketknife, a ‘bear candle,’ a box of condoms, and lubricating jelly.” Id., at 847.


The four child “victims” in each of these four cases were actually police actors—three of whom presented themselves as fourteen-year-old girls and the fourth as a thirteen-year-old girl. Accepting the background facts outlined by the courts as true, each adult predator was aggressive in his attempts to meet and have sex with perceived teenaged victims.

Why, then, were their sentences so different?


Newberry and Gurwell was given identical ten-year sentences under § 33.021 while Martinez was given a six-year term under § 15.021 following a guilty plea. Because he had two unspecified prior convictions, Cook was given an enhanced 95-year term. The disparity in the sentences does not reveal any legitimate rhyme or reason for the punishments. Should Martinez receive four years less punishment than Newberry and Gurwell simply because he pled guilty? Or should Cook receive 89 years more punishment Martinez because he had two prior unspecified convictions? Law enforcement authorities testified that Martinez had a history of repeatedly trying to solicit sex with minors online. He also exhibited the same proclivity to expose himself online as Cook had. So why should one serve six years while the other must serve 95 years?

What about those offenders who do not use the Internet but approach minors personally to solicit sex with them? Should they be treated harsher or less severely than those who troll the Internet in search of sexual prey?

On September5, 2007 the Seventh District Court of Appeals upheld the 12-year sentence imposed on James Orville Shepard for a § 15.021 conviction for criminal solicitation of a minor. See: Shepard v. State, 244 S.W.3d 421 (Tex.App.-Amarillo 2007). The background facts are:


“On July 21, 2004, appellant went to the Santa Fe building in Amarillo to register to vote. While searching for the appropriate office, he encountered a lone female in a hallway outside of the Juvenile Probation office. Appellant asked the female (S.P.) how old she was. According to S.P., she told appellant that she was 14 years old. However, appellant contends that S.P. told him that she was 17 years old or, at least, that was what he understood her to say. Appellant then asked S.P. if she would like to go into the restroom with him to engage in oral sex. S.P. declined. Appellant then asked S.P. if she was sure, to which S.P. responded ‘yes.’


”Amarillo Police Sergeant Gerry Aaron was assigned to investigate this incident. Aaron obtained a photograph of appellant and showed it to S.P. who positively identified appellant as the person that had solicited her. Aaron then located appellant and discussed the incident with him in Aaron’s vehicle. Initially, appellant denied any knowledge of the incident, but then admitted that he had been in the Santa Fe building and had solicited a female for oral sex. However, appellant told Aaron that he thought that the female was 17. Subsequently, appellant gave a written statement to Aaron. In this statement, appellant states that he encountered a girl in the Santa Fe building, asked her how old she was, thought she said 17, and asked the girl if she wanted to have oral sex.” Id., at 422.


On March 26, 2008, the Tenth District Court of Appeals, sitting in Waco, issued a ruling in the case of Martin Douglas Lankford upholding his ten-year probated sentence and $10,000 fine. See: Lankford v. State, 255 S.W.3d 275 (Tex.-App.-Waco 2008). His case facts are:


“On December 13, 2005, C.B. was walking home from school on a cold, rainy day. Lankford saw C.B. walking in the rain and offered him a ride home. When he first got in the car, Lankford greeted him with a handshake that C.B. claims tickled the palm of his hand. Lankford then asked him whether he knew what the ‘secret’ handshake meant, and C.B. responded he did not. C.B. claims that although Lankford asked him if it would be okay if he explained to him what the handshake meant, Lankford never explained the handshake’s meaning, but when he parked in front of C.B.’s house, Lankford looked at him and asked if C.B. could ‘suck my cock.’


”When C.B. went inside his house, he loaded a .22 rifle, called his stepfather, and asked him to come home immediately. C.B.’s stepfather called the police, and Officer Masiongale came to take C.B.’s statement. At that time, C.B. was too upset to write his statement, so he asked his stepfather to write it for him. A ‘be on the lookout’ warning was put out, and Lankford was eventually detained by police and brought in for questioning.


”Upon questioning, Lankford admitted to picking up C.B. and giving him a ride home but denied that anything sexual was discussed. He mentioned that he thought C.B. was between the ages of sixteen and nineteen and referred to shaking hands with him several times. Throughout the interview, the police officers made several references to male genitalia, but only Lankford used the word ‘cock’ in a descriptive manner. Before the interview was over, Lankford asked the officers what would happen if he admitted to committing the crime. The police later obtained a warrant and arrested Lankford.” Id., at 276.

Why did Shepard get twelve years in prison while Lankford received ten years probation? Both men attempted to engage minors in oral sex. Shephard’s crime is no more heinous or offensive than Lankford’s. Yet the disparity between the two sentences is as disturbing as the 89-year difference between the sentences imposed on Cook and Martinez.


Finally, the most disturbing case in our research group, Phillip Ashcraft, whose case was decided on July 31, 2008 by the Third District Court of Appeals, sitting in Austin. A jury convicted Ashcraft of attempted sexual assault of a child (§§ 15.01, 22.011), attempted sexual performance by a child (§§ 15.01, 43.25), and two counts of criminal solicitation of a minor (§ 15.031). The jury assessed punishment at eight and ten years’ imprisonment for the two counts of criminal solicitation of a minor, ten years’ imprisonment for attempted sexual assault of a child, and ten years’ imprisonment for attempted sexual performance by a child. See: Ashcraft v. State, 2008 Tex. App. LEXIS 5823 (Tex.App.-Austin, July 31, 2008).


”This appeal involves what the Cyber Crimes Division of the Attorney General’s Office refers to as a ‘criminal solicitation traveler case.’ According to FBI special agent Karen McKay, a former agent with the Cyber Crimes Division and the State’s key witness in this case, ‘A traveler case is criminal solicitation where someone solicits a minor online to travel to meet them to engage in sexual intercourse.’


”The underlying facts are not in dispute. The jury heard evidence that in 2004, Agent McKay was posing online as ‘haileyhayes14,’ a fourteen-year-old girl. While in a chat room entitled, ‘I Like Older Men Best,’ McKay was contacted by an individual with the screen names ‘thebigboner36’ and ‘milfhunt66.’ The evidence showed that these screen names belonged to Ashcraft. McKay testified that between February 2 and February 18, 2004, Ashcraft made numerous online sexual solicitations to ‘haileyhayes14.’ The text of these online conversations were admitted into evidence. McKay further testified that Ashcraft ultimately arranged to meet her at a restaurant in Buda. According to McKay, Ashcraft informed her that he would be driving a green Ford pickup truck.


”On the morning of February 18, 2004, the day that Ashcraft had arranged to meet with ‘haileyhayes14,’ immediately prior to departing for Buda, Ashcraft initiated a final chat session with McKay.


”At approximately 11:25 a.m., Ashcraft pulled into the parking lot of the Buda Jack-in-the-Box driving a green Ford Ranger pickup truck. Several police officers were at the restaurant waiting for him, including Agent McKay and Sergeant Jennifer Bloodworth, also with the Attorney General’s Cyber Crimes Division. Sergeant Bloodworth’s job was to be inside the restaurant and pose as ‘haileyhayes14.’ When Ashcraft pulled into the parking lot, Bloodworth observed that he ‘appeared to be driving very slow as if he was looking for someone inside.’ Bloodworth testified, ‘As he pulled around I kind of looked over my shoulders and just kind of gave him a wave to verify that I was who he was looking for, which was Hailey Hayes, the 14-year-old female. At that point he pulled around and parked.’ Bloodworth added, ‘I did observe him kind of wave over the steering wheel.’ Once Ashcraft parked, the other officers approached his vehicle and immediately arrested him. Upon searching Ashcraft’s vehicle, officers found a digital camera, a stuffed animal, and a book entitled, ‘Travel Coupon Guide Motel/Hotel Discounts.’ Id., at Lexis 3-6.


The appeals court did not specify whether Ashcraft’s four sentences were concurrent or consecutive. For the purpose of our research group, we will assume they are concurrent giving him an aggregate 10-year term. That sentence is consistent with the 10-year terms imposed on Newberry and Gurwell. What is about Ashcraft, however, is the prosecutorial decision to overcharge him with four different offenses involving one criminal episode. The prosecutors in the other six cases in our research group could have overcharged those defendants but did not. Why did the prosecution choose to overcharge Ashcraft? It makes him appear to be a worst child predator than the other six in our group. But the facts in the seven cases belie this appearance.


Protecting children from adult sexual predators is an important public policy. That policy, however, is undermined when prosecutors unnecessarily overcharge in these cases, and when judges and juries impose grossly disparate punishments in cases whose facts are essentially the same. These practices erode confidence in our criminal justice system as surely as do wrongful convictions in child sexual assault cases.


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