Académique Documents
Professionnel Documents
Culture Documents
Topic Outline
I. OFFENSES DEFINED
A. Aggravated Kidnapping
1. Abduct
2. “Restraint” Defined
3. “Without Consent” Defined
1. What Is Enticement?
2. What Is NOT Enticement?
3. Completed Offense
D. Child Pornography
1. By Exposure
2. By Sexual Contact
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H. Lasciviousness
J. Sexual Assault
A. Search Warrants
1. Probable Cause
a. Sworn Affidavit
i. Facts to Be Included
ii. Sufficient of Facts and Allegations
iii. Truth of Allegations
iv. Totality of the Circumstances
v. Information Gathered During the Investigation
vi. Use of Hearsay
b. Informants
c. The Defendant’s Burden
2. Scope of Search Warrant
3. Staleness
B. Anticipatory Warrants
D. Methods of Searching
E. Consent Search
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F. Plain-View Searches
G. Employer Searches
I. Civilian Searches
J. University-Campus Searches
L. Photo-Development Discoveries
M. Criminal Forfeiture
1. “Criminal Instrument”
2. “Obscene Device”
3. “Obscene Material”
A. Jurisdictional Nexus
B. Internet Nexus
1. State
2. Federal
3. Concurrent
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IV. DISCOVERY AND EVIDENCE
1. Hearsay/Authentication Issues
2. Circumstantial Evidence
3. Technical Aspects of Electronic Evidence Regarding Admissibility
C. Text-Only Evidence
1. Not Admissible
a. Character Evidence
b. Propensity Evidence
2. Admissibility
a. Common Scheme
b. Accident
c. Evidence of Prior Criminal Conduct
d. Continuous Criminal Episode
e. Other Acts Committed by the Defendant Against the Same Child
Victim
f. To Prove Scienter
3. “Reasonable-Notice” Requirement
4. Relevance
5. Admissibility at the Guilt-Innocence Phase
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G. Proof of Similar Acts
H. “Background” Evidence
J. Privileges
1. Physician-Patient Confidentiality
2. Attorney-Client Privilege
a. “Privileged Communication” Defined
b. Inappropriate Use of Privilege
c. Crime-Fraud Exception
d. Application of Privilege to Third Parties
e. Suppression of Evidence
1. Child-Victim Testimony
2. Expert Testimony
a. Qualifications
b. Relevance
c. “Harm-to-Children” Testimony in Possession-of-Child-
Pornography Case
3. Outcry Witness
a. General Rule
b. “Statement About the Offense”
L. Extrajudicial Confessions
1. Child Pornography
2. Sexual Assault
1. Simultaneous Possession
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2. Medium Involved
3. Multiple Victims
4. Multiple Violations of Same Victim
5. Separate Criminal Acts
6. Violation of More than One Penal Statute
7. Greater and Lesser Included Offenses
VII. DEFENSES
A. General
B. Specific
1. Age
2. Consent
3. Diminished Capacity
a. Addiction to the Internet
b. Insanity
4. Entrapment
5. First Amendment
a. In-Home Possession
b. Nude-Art Defense
6. Impossibility
a. Factual
b. Legal
7. Manufacturing Jurisdiction
8. Marriage
9. Mistake of Fact: Victim’s Age
10. Outrageous Conduct
11. Promiscuity
12. Researcher
13. Sexual Orientation
A. Enhancement
1. Age of Victim
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2. Distribution/Intent to Traffic
3. Number of Images
4. Pattern of Activity for Sexual Exploitation
5. Sadistic, Masochistic, or Violent Material
6. Use of Computers
C. Multiple Convictions
1. Sample Conditions
2. The State’s Burden for Revoking Supervised Release
C. Deferred Adjudication
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TEXAS
Case List by Court
No cases reported.
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Texas
• Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990)
• Johnson v. State, 967 S.W.2d 848 (Tex. Crim. App. 1998)
• Lewis v. State, 676 S.W.2d 136 (Tex. Crim. App. 1984)
• Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992)
• Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996)
• McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981)
• Meredith v. State, 350 S.W.2d 550 (Tex. Crim. App. 1961)
• Mitchell v. State, 650 S.W.2d 801 (Tex. Crim. App. 1983)
• Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)
• Moore v. State, 456 S.W.2d 114 (Tex. Crim. App. 1970)
• O’Neal v. State, 421 S.W.2d 391 (Tex. Crim. App. 1967)
• O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988)
• Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992)
• Pawson v. State, 865 S.W.2d 36 (Tex. Crim. App. 1993)
• Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App. 1996)
• Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000)
• Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)
• Sanders v. State, 604 S.W.2d 108 (Tex. Crim. App. 1980)
• Slusser v. State, 232 S.W.2d 727 (Tex. Crim. App. 1950)
• Snider v. State, 681 S.W.2d 60 (Tex. Crim. App. 1984)
• Taggart v. State, 290 S.W.2d 226 (Tex. Crim. App. 1956)
• Truelove v. State, 258 S.W. 826 (Tex. Crim. App. 1924)
• Vasquez v. State, 622 S.W.2d 864 (Tex. Crim. App. 1981)
• Vineyard v. State, 958 S.W.2d 834 (Tex. Crim. App. 1998)
• Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)
• Wood v. State, 573 S.W.2d 207 (Tex. Crim. App. 1978)
• Wright v. State, 468 S.W.2d 422 (Tex. Crim. App. 1971)
(The Court of Appeals of Texas was previously known as the Courts of Civil Appeals;
hence, this section refers to both courts.)
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• Santos v. State, 961 S.W.2d 304 (Tex. App. 1997)
• Worley v. State, 870 S.W.2d 620 (Tex. App. 1994)
• Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589 (Tex. App.
1988)
• DeMoss v. State, 12 S.W.3d 553 (Tex. App. 1999)
• Garay v. State, 954 S.W.2d 59 (Tex. App. 1997)
• Navarro v. State,* 2000 Tex. App. LEXIS 2688 (2000)
• Romero v. State, 34 S.W.3d 323 (Tex. App. 2000)
• Rosales v. State,* 2002 Tex. App. LEXIS 256 (2002)
• Valenciano v. State, 705 S.W.2d 339 (Tex. App. 1986)
• Wachter v. State, 961 S.W.2d 598 (Tex. App. 1997)
• Yohey v. State, 801 S.W.2d 232 (Tex. App. 1990)
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• Reynolds v. State, 746 S.W.2d 536 (Tex. App. 1988)
• Simmonds v. State, 51 S.W.3d 445 (Tex. App. 2001)
• Stone v. Simms,* 2001 Tex. App. LEXIS 717 (2001)
• Swink v. State, 747 S.W.2d 53 (Tex. App. 1988)
No cases reported.
No cases reported.
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14. Fourteenth District, Houston
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TEXAS
Topic Outline With Cases
I. OFFENSES DEFINED
A. Aggravated Kidnapping
1. Abduct
2. “Restraint” Defined
2. “Performance” Defined
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C. Child Enticement (a.k.a. Enticing a Minor from the Custody of a Parent)
1. What Is Enticement?
3. Completed Offense
D. Child Pornography
2. “Possession” Defined
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2. Intent
1. By Exposure
2. By Sexual Contact
H. Lasciviousness
b. Lascivious Intent
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J. Sexual Assault
A. Search Warrants
1. Probable Cause
a. Sworn Affidavit
i. Facts to Be Included
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iv. Totality of the Circumstances
b. Informants
3. Staleness
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Texas
• Renfro v. State,* 2001 Tex. App. LEXIS 1347 (2001)
• Rowell v. State, 14 S.W.3d 806 (Tex. App. 2000)
• Wachter v. State, 961 S.W.2d 598 (Tex. App. 1997)
B. Anticipatory Warrants
D. Methods of Searching
E. Consent Search
2. Burden
3. Withdrawal of Consent
4. Third-Party Consent
F. Plain-View Searches
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Texas
• Simmonds v. State, 51 S.W.3d 445 (Tex. App. 2001)
• Texas v. Brown, 460 U.S. 730 (1983)
• Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)
G. Employer Searches
I. Civilian Searches
J. University-Campus Searches
L. Photo-Development Discoveries
M. Criminal Forfeiture
1. “Criminal Instrument”
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Texas
2. “Obscene Device”
3. “Obscene Material”
A. Jurisdictional Nexus
B. Internet Nexus
1. State
2. Federal
3. Concurrent
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Texas
IV. DISCOVERY AND EVIDENCE
1. Hearsay/Authentication Issues
2. Circumstantial Evidence
C. Text-Only Evidence
2. Relevance
2. Cable Act
3. Patriot Act
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b. State-Court-Judge Jurisdictional Limits
2. To Show Intent
1. Not Admissible
a. Character Evidence
b. Propensity Evidence
2. Admissibility
a. Common Scheme
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b. Accident
f. To Prove Scienter
3. “Reasonable-Notice” Requirement
4. Relevance
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Texas
• Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)
• Navarro v. State,* 2000 Tex. App. LEXIS 2688 (2000)
H. “Background” Evidence
J. Privileges
1. Physician-Patient Confidentiality
2. Attorney-Client Privilege
c. Crime-Fraud Exception
e. Suppression of Evidence
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K. Witnesses and Testimony
1. Child-Victim Testimony
2. Expert Testimony
a. Qualifications
b. Relevance
3. Outcry Witness
a. General Rule
L. Extrajudicial Confessions
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B. The Defendant’s Knowledge of the Child’s Age
1. Child Pornography
2. Sexual Assault
1. Simultaneous Possession
2. Medium Involved
3. Multiple Victims
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6. Violation of More than One Penal Statute
VII. DEFENSES
A. General
a. Factual
b. Legal
2. Enticement
3. Child Pornography
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B. Specific
1. Age
2. Consent
3. Diminished Capacity
b. Insanity
4. Entrapment
5. First Amendment
a. In-Home Possession
b. Nude-Art Defense
6. Impossibility
a. Factual
b. Legal
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7. Manufacturing Jurisdiction
8. Marriage
11. Promiscuity
12. Researcher
A. Enhancement
1. Age of Victim
2. Distribution/Intent to Traffic
3. Number of Images
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4. Pattern of Activity for Sexual Exploitation
6. Use of Computers
C. Multiple Convictions
1. Sample Conditions
C. Deferred Adjudication
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TEXAS
Case Highlights
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Texas
Burke v. State, 27 S.W.3d 651 (Tex. App. 2000)
The State does not have to allege that the offense occurred “on or about” a certain date in
order to sustain an aggravated-sexual-assault conviction.
Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589 (Tex. App. 1988)
The hospital had the burden to establish that an exception to the physician-patient
privilege gave an unauthorized individual access to a patient’s medical records.
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Texas
Damian v. State, 881 S.W.2d 102 (Tex. App. 1994)
An extrajudicial confession is insufficient to support a conviction absent corroboration.
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Texas
Escobar v. State, 133 S.W.2d 781 (Tex. Crim. App. 1939)
In a case involving child enticement, whether the child accompanied the defendant on his
or her own volition is immaterial; nor is it a defense.
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Garcia v. State, 887 S.W.2d 846 (Tex. Crim. App. 1994)
When the trial court errs in overruling a challenge for cause against a venireperson, the
defendant is harmed only if he or she uses a peremptory strike to remove the
venireperson and thereafter suffers detriment from the loss of the strike. Error is
preserved only if the appellant used all his or her peremptory strikes, asked for and was
refused additional peremptory strikes, and was then forced to take an identified
objectionable juror whom the appellant would not otherwise have accepted had the trial
court granted his or her challenge for cause or granted him or her additional peremptory
strikes so that he or she might strike the juror.
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Texas
Hampton v. State,* 2000 Tex. App. LEXIS 4721 (2000)
The defendant’s admission to his probation officer of violating a condition of his
community supervision is, by itself, sufficient to support the revocation of community
supervision.
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Texas
assault. Consequently double jeopardy arose when the defendant was convicted of
indecency after having already been convicted of aggravated sexual assault.
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Texas
Lewis v. State, 676 S.W.2d 136 (Tex. Crim. App. 1984)
When the intent element in a case can only be proved by inferences from the evidence
presented, photographs may be relevant in helping the jury to determine whether the
appellant had the intent to arouse or gratify his sexual desires when he touched the
complainant during the photography sessions.
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Texas
Mitchell v. State, 650 S.W.2d 801 (Tex. Crim. App. 1983)
An accomplice witness is a discredited witness. The settled law in Texas is that when
evidence of collateral crimes is introduced for one of the various purposes for which such
evidence becomes admissible, the jury should be instructed that they cannot consider
against the defendant such collateral crimes, unless it has been shown to their satisfaction
that the accused is guilty thereof.
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Texas
the State’s case in chief; however, once the State rests its case in chief, in the face of a
timely request by the defendant, the trial court must order the State to make its election.
Failure to do so constitutes error.
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Texas
support a finding that a condition of probation has been violated the trial court does not
abuse its discretion in revoking probation.
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Texas
Sanders v. State, 604 S.W.2d 108 (Tex. Crim. App. 1980)
In a criminal proceeding, when the extraneous or similar transaction committed by the
accused, sought to be admitted by the State, constitutes a criminal offense, introduction of
that “extraneous-offense” transaction is inherently prejudicial because the accused is
entitled to be tried on the accusation made in the State’s charging instrument and
therefore cannot be tried for some collateral crime of which he or she has no notice.
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Texas
nature of the evidence must be immediately apparent; that is, there must be probable
cause to associate the item with criminal activity.
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Texas
Tarbutton v. State,* 1999 Tex. App. LEXIS 5447 (1999)
The general “outcry” witness rule is that hearsay testimony may be admitted in the
prosecution of a sexual offense committed against a child, 12 years of age or younger,
provided the witness was the first person age 18 or older to whom that child made a
statement about the offense. The phrase “statement about the offense” means more than
words that give a general allusion that something in the area of child abuse was going on.
Rather, the statement must describe the alleged offense in some discernible manner. The
trial court has broad discretion in determining the proper outcry witness.
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Texas
a person of “reasonable caution” would believe that the articles sought were located at the
place to be searched. There is no established time limit on how old the information
contained in an affidavit may be; however, the facts attested to must be so closely related
to the time of the issuance of the warrant as to justify a finding of probable cause at the
time.
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Texas
TEXAS
Offenses Defined
I. Aggravated Kidnapping
A. Abduct
• “Abduct” means to restrain a person with the intent to prevent his or her
liberation by:
(1) secreting or holding him or her in a place where he or she is not likely
to be found; or
(2) using or threatening to use deadly force.
Tex. Penal Code Ann. § 20.01(2).
– Rosales v. State,* 2002 Tex. App. LEXIS 256, 3 (2002).
B. “Restraint” Defined
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Texas
(3) does an act amounting to more than mere preparation;
(4) that tends but fails to effect the commission of sexual performance by a child.
Tex. Penal Code Ann. § 15.01.
– Chen v. State, 42 S.W.3d 926, 929 (Tex. Crim. App. 2001).
• To convict a defendant for the offense of attempted sexual performance of a child, the
state must show the defendant attempted to employ, authorize, or induce a child
younger than 17 years of age to engage in sexual conduct or a sexual performance.
Tex. Penal Code Ann. § 15.01.
– Alexander v. State, 906 S.W.2d 107, 109 (Tex. App. 1995).
– But see Tex. Penal Code Ann. § 43.25(b) (stating that a person commits an offense if, knowing the
character and content thereof, he or she employs, authorizes, or induces a child younger than 18
years of age to engage in sexual conduct or a sexual performance).
B. “Performance” Defined
III. Child Enticement (a.k.a. Enticing a Minor from the Custody of a Parent)
A. What Is Enticement?
• A person commits an offense if, with the intent to interfere with the lawful
custody of a child younger than 18 years, he or she knowingly entices,
persuades, or takes the child from the custody of the parent or guardian or
person standing in the stead of the parent or guardian of such child. Tex. Penal
Code Ann. § 25.04(a).
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Texas
– Cunyus v. State, 727 S.W.2d 561, 563 (Tex. Crim. App. 1987).
• The mere offer of an activity to a child, which would remove the child from
where the parents or legal guardians have permitted the child to be, does not
alone constitute an offense.
– Cunyus v. State, 727 S.W.2d 561, 565 (Tex. Crim. App. 1987).
C. Completed Offense
• The fact that the accused desisted without the intervention of an outside force
does not preclude a jury from finding that the accused’s purpose, at the time
the child was enticed to enter the vehicle, was to commit an aggravated assault
upon the child.
– Taggart v. State, 290 S.W.2d 226, 227 (Tex. Crim. App. 1956).
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Texas
– Greer v. State, 999 S.W.2d 484, 487 (Tex. App. 1999).
B. “Possession” Defined
• Visual material is defined in the code to encompass any disk, diskette, or other
physical medium that allows an image to be displayed on a computer. Tex.
Penal Code Ann. § 43.26.
– Greer v. State, 999 S.W.2d 484, 487 (Tex. App. 1999).
• Deviate sexual intercourse is any contact between any part of the genitals of
one person and the mouth or anus of another. Tex. Penal Code Ann. §
21.01(1).
– Gonzalez v. State, 648 S.W.2d 740, 741 (Tex. App. 1983).
B. Intent
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Texas
– Gonzalez v. State, 648 S.W.2d 740, 742 (Tex. App. 1983).
A. By Exposure
B. By Sexual Contact
VIII. Lasciviousness
• The words “lewd” and “lascivious” are similar in meaning and signify that
form of immorality that has relation to sexual impurity.
– Bowles v. State, 550 S.W.2d 84, 85-86 (Tex. Crim. App. 1977).
– O’Neal v. State, 421 S.W.2d 391, 393 (Tex. Crim. App. 1967).
– Slusser v. State, 232 S.W.2d 727, 730 (Tex. Crim. App. 1950).
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Texas
(1) the focal point of the visual depiction is the child’s genitalia;
(2) the place or pose of the child in the photograph is sexually
suggestive;
(3) the child is depicted in an unnatural pose or inappropriate
attire;
(4) the child is fully or partially clothed or nude;
(5) the visual depiction suggests sexual coyness or a willingness to
engage in sexual activity; or
(6) the visual depiction is intended or designed to elicit a sexual
response in the viewer.
– Alexander v. State, 906 S.W.2d 107, 110 (Tex. App. 1995).
2. Lascivious Intent
IX. Online Enticement/Solicitation for Travel With Intent to Engage in Sex With a
Minor
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Texas
X. Sexual Assault
• To prove the essential elements of sexual assault, the State has to prove:
(1) a person;
(2) intentionally or knowingly;
(3) caused the sexual organ of a child;
(4) to contact the sexual organ of another person.
Tex. Penal Code Ann. § 22.011(a)(2)(C).
– Ex parte Hulin, 31 S.W.3d 754, 760 (Tex. App. 2000).
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TEXAS
Search and Seizure of Electronic Evidence
I. Search Warrants
A. Probable Cause
1. Sworn Affidavit
a. Facts to Be Included
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Texas
– Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996).
– Taylor v. State, 54 S.W.3d 21, 27 (Tex. App. 2001) (finding a search
warrant fatally defective because the affidavit did not support a
conclusion that there was a fair probability of finding child pornography
at the appellant’s house).
c. Truth of Allegations
f. Use of Hearsay
2. Informants
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Texas
3. The Defendant’s Burden
• While the scope of the search warrant is governed by its terms, the search may
be as extensive as is reasonably required to locate items described in the
warrant.
– DeMoss v. State, 12 S.W.3d 553, 558 (Tex. App. 1999).
– Haynes v. State, 475 S.W.2d 739, 741-42 (Tex. Crim. App. 1971).
• If the scope of the search is challenged because of the location where the
items were found, the officer must show that he or she was properly in the
place where the item was found, either on basis of the search warrant or under
the authority of an exception to the warrant requirement.
– DeMoss v. State, 12 S.W.3d 553, 558 (Tex. App. 1999).
– Snider v. State, 681 S.W.2d 60, 62-63 (Tex. Crim. App. 1984).
– Swink v. State, 747 S.W.2d 53, 54 (Tex. App. 1988).
C. Staleness
• The facts relied on to get the warrant must not have become “stale” by the
time the warrant is issued.
– Burke v. State, 27 S.W.3d 651, 653 (Tex. App. 2000).
– Rowell v. State, 14 S.W.3d 806, 809-10 (Tex. App. 2000).
– Wachter v. State, 961 S.W.2d 598, 600 (Tex. App. 1997).
• The affidavit for the search warrant must show that the act or event upon
which probable cause is based occurred within a reasonable time prior to
making the affidavit.
– Burke v. State, 27 S.W.3d 651, 653 (Tex. App. 2000).
– Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. 1979).
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Texas
• The proper method to determine whether the facts supporting a search warrant
have become stale is to examine, in light of the type of criminal activity
involved, the time elapsing between the occurrence of the events set out in the
affidavit and the time the search warrant was issued. When the affidavit
recites facts indicating activity of a protracted and continuous nature (i.e., a
course of conduct), the passage of time becomes less significant.
– Hafford v. State, 989 S.W.2d 439, 440 (Tex. App. 1999).
– Morris v. State,* 2001 Tex. App. LEXIS 7694, 13-14 (2001).
– Renfro v. State,* 2001 Tex. App. LEXIS 1347, 17 (2001) (holding that 3-month-old
information in the affidavit was not too stale to establish probable cause under the
circumstances of the case).
– Rowell v. State, 14 S.W.3d 806, 809 (Tex. App. 2000).
V. Consent Search
B. Burden
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Texas
C. Withdrawal of Consent
• If a suspect may legally extend permission to search one object or area while
withholding consent to peruse others, there is no reason why the same
individual could not revoke consent as to one area but not another. All
depends on what a reasonable person would have understood at the time and
under the circumstances.
– Cardenas v. State, 857 S.W.2d 707, 712 (Tex. App. 1993).
– DuBose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996).
– Layton v. State,* 1997 Tex. App. LEXIS 5257, 16-17 (1997).
D. Third-Party Consent
• A third party may properly consent to a search when he or she has control
over and authority to use the premises being searched.
– Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994).
– Rosales v. State,* 2002 Tex. App. LEXIS 256, 18 (2000) (finding that, with regard to
seizure of a computer, the evidence demonstrated that the computer was moved by the
defendant’s father to the home of his grandmother and she, therefore, could consent to the
search of the computer).
• If during a lawful search the officer comes across evidence in plain view, the officer
may seize the evidence.
– Simmonds v. State, 51 S.W.3d 445, 447 (Tex. App. 2001).
– Texas v. Brown, 460 U.S. 730, 738-39 (1983).
– Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
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Texas
B. Standard for Seizure of Item in Plain View
• It is immaterial to the legality of the execution of the search warrant whether a law-
enforcement officer is off-duty when he or she executes it; as long as the person
executing the warrant is actively employed as a peace officer, he or she is authorized
to execute a search warrant.
– DeMoss v. State, 12 S.W.3d 553, 556-57 (Tex. App. 1999).
X. University-Campus Searches
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Texas
the judgment of conviction shall order that the instrument, obscene device, or material
be destroyed or forfeited to the state. Tex. Code Crim. Proc. Ann. art. 18.18(a).
– Janjua v. State, 991 S.W.2d 419, 421 (Tex. App. 1999).
A. “Criminal Instrument”
• Whether a device is simple or complex, the gravamen of the crime remains the
actor’s intended use of the instrument. Mere possession of the instrument is
not an offense. Thus the State must show by other facts and circumstances that
the actor intended to use the device in the commission of an offense.
– Janjua v. State, 991 S.W.2d 419, 425 (Tex. App. 1999).
B. “Obscene Device”
C. “Obscene Material”
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Texas
TEXAS
Jurisdiction and Nexus
I. Jurisdictional Nexus
A. State
B. Federal
C. Concurrent
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Texas
TEXAS
Discovery and Evidence
A. Hearsay/Authentication Issues
B. Circumstantial Evidence
B. Relevance
B. Cable Act
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Texas
C. Patriot Act
• Photographs are admissible to show the context in which the offense occurred.
– Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) (finding that, since the
appellant had been touching the complainant every time she was photographed, the
photographs and the touching were inseparable and the taking of the photographs amounted
to one indivisible transaction).
B. To Show Intent
• Photographs are admissible so that a jury can determine whether the defendant
had the intent to gratify his or her sexual desire when he or she touched the
complainant. The surrounding circumstances must be shown in order to put
the offense in perspective.
– Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984).
• Photographs are admissible if they establish either the probability that the
accused committed the offense or that he or she paid unnatural attention, or
displayed an unnatural attitude toward the victim, or had lascivious intent
toward the victim.
– Lewis v. State, 676 S.W.2d 136, 139 (Tex. Crim. App. 1984) (finding that the photographs,
taken over a period of time, helped to demonstrate the appellant’s attitude and intent toward
the complainant).
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VI. Prior Bad Acts
A. Not Admissible
1. Character Evidence
2. Propensity Evidence
B. Admissibility
• The greater the need for the evidence, the more likely it will be admissible.
– Caro v. State, 771 S.W.2d 610, 618 (Tex. App. 1989).
– Horwitz v. State,* 1997 Tex. App. LEXIS 6449, 7 (1997).
1. Common Scheme
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2. Accident
6. To Prove Scienter
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• That the required intent cannot be inferred from the act itself
establishes the relevancy of the extraneous evidence. When the
defendant’s conduct alone can be considered as consistent with
accident as with a specific lascivious intent, any extraneous act
committed by the defendant which would tend to demonstrate such
intent is admissible.
– Valenciano v. State, 705 S.W.2d 339, 342 (Tex. App. 1986).
C. “Reasonable-Notice” Requirement
D. Relevance
• Evidence of other crimes or bad acts may be allowed only when relevant to
prove an elemental fact or an evidentiary fact of consequence to a
determination of the action. Tex. R. Crim. Evid. 404(b).
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 13 (1994).
– Navarro v. State,* 2000 Tex. App. LEXIS 2688, 5 (2000) (finding that victim testimony
was relevant to establish the defendant’s intent to commit sexual assault against two other
individuals).
• Evidence of other crimes or bad acts that a defendant may have committed
cannot be introduced at the guilt-innocence phase to show conformity with his
or her criminal nature and therefore the crime for which he or she is on trial.
Tex. R. Crim. Evid. 404(b).
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 12 (1994).
– Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992).
– Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1991).
• When one accused of sexually assaulting a child challenges the credibility of the
complainant, proof of similar acts may be admissible to rebut the challenge if the
evidence logically serves that purpose.
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 15 (1994).
– Hill v. State, 852 S.W.2d 769, 770 (Tex. App. 1993).
– Jessup v. State, 853 S.W.2d 141, 143 (Tex. App. 1993).
– Montgomery v. State, 810 S.W.2d 372, 394 (Tex. Crim. App. 1991).
– Navarro v. State,* 2000 Tex. App. LEXIS 2688, 3 (2000) (finding that extraneous offense was
admissible to rebut the defensive theory that two of three complainants lied about assaults).
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VIII. “Background” Evidence
• The crimes must be indivisibly connected with the offense charged so that testimony
of any one of them cannot be given without showing the others.
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 21 (1994).
– Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
• Regardless of the plea and whether the punishment be assessed by the judge or jury,
evidence may be offered by the state and the defendant as to any matter the court
deems relevant to sentencing, including any other evidence of an extraneous crime or
bad act that is shown beyond a reasonable doubt to have been committed by the
defendant, regardless of whether he or she has previously been charged with or finally
convicted of the crime or act. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a).
– McColloch v. State,* 1999 Tex. App. LEXIS 4279, 16-17 (1999) (finding evidence that the appellant
had attempted improper sexual contact was probative of the appellant’s character and was not
unfairly prejudicial).
• At the punishment phase, the jury can consider the evidence admitted at the guilt-
innocence phase as well as the evidence admitted during the punishment phase.
– McColloch v. State,* 1999 Tex. App. LEXIS 4279, 16-17 (1999).
– Wright v. State, 468 S.W.2d 422, 424 (Tex. Crim. App. 1971).
– Yohey v. State, 801 S.W.2d 232, 242 (Tex. App. 1990).
X. Privileges
A. Physician-Patient Confidentiality
• The Medical Practice Act, Tex. Rev. Civ. Stat. Ann. art. 4495b, specifically
provides for physician-patient confidentiality. Section 5.08(a) of the Act
provides:
Communications between one licensed to practice medicine,
relative to or in connection with any professional services as a
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physician to a patient, is confidential and privileged and may not
be disclosed except as provided in this section.
Subsection (h)(7) exempts from the general rule against disclosure “other
physicians and personnel under the direction of the physician who are
participating in the diagnosis, evaluation, or treatment of the patient [.]”
– Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589, 590 n.1 (Tex. App. 1988).
• Tex. Rev. Civ. Stat. Ann. art. 4495b, § 5.08, addresses the physician-patient
communication and provides for the confidentiality of communications
between the patient and physician in connection with any professional service.
Section 5.08 further provides: (b) records of the identity, diagnosis,
evaluation, or treatment of a patient by a physician that are created or
maintained by a physician are confidential and privileged and may not be
disclosed except as provided in this section; (c) any person who receives
information from confidential communications or records as described in this
section other than the persons listed in Subsection (h) of this section who are
acting on the patient’s behalf may not disclose the information except to the
extent that disclosure is consistent with the authorized purposes for which the
information was first obtained.
– Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589, 591 (Tex. App. 1988).
B. Attorney-Client Privilege
• The attorney-client privilege actually confers upon the client the right to
prevent disclosure of communications at any stage of the criminal
proceedings. Tex. R. Crim. Evid. 503(b); Tex. R. Crim. Evid. 1101(b).
– Henderson v. State, 962 S.W.2d 544, 553 (Tex. Crim. App. 1997).
• The literal text of Tex. R. Crim. Evid. 503 purports to prohibit any disclosure
of privileged communications at any time. But, whether a violation of that
prohibition constitutes a law violation depends in large part upon the nature
and significance of the attorney-client privilege, and to the extent that it does,
the court is not constrained to interpret the rule in accordance with its literal
language.
– Henderson v. State, 962 S.W.2d 544, 554 (Tex. Crim. App. 1997).
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2. Inappropriate Use of Privilege
• The client cannot use Tex. R. Crim. Evid. 503 to prevent an attorney’s
disclosure, in accordance with the disciplinary rules, or ongoing or
future criminal activity.
– Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim. App. 1997).
3. Crime-Fraud Exception
5. Suppression of Evidence
A. Child-Victim Testimony
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– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 10 (1994).
B. Expert Testimony
1. Qualifications
• There must be a fit between the subject matter at issue and the expert’s
familiarity therewith.
– Roise v. State, 7 S.W.3d 225, 234 (Tex. App. 1999).
• The proponent must establish that the expert has knowledge, skill,
experience, training, or education regarding the specific issue before
the trial court which would qualify the expert to give an opinion on
that particular subject.
– Roise v. State, 7 S.W.3d 225, 234 (Tex. App. 1999).
2. Relevance
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C. Outcry Witness
• An outcry witness is the first person of 18 years or older to whom the child-
victim has made a statement about the abuse. Tex. Code Crim. Proc. Ann. art.
38.072.
– Navarro v. State,* 2000 Tex. App. LEXIS 2688, 8 n.1 (2000).
1. General Rule
• The phrase “statement about the offense” means more than words that
give a general allusion that something in the area of child abuse was
going on. Rather the statement must describe the alleged offense in
some discernible manner.
– Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
– Tarbutton v. State,* 1999 Tex. App. LEXIS 5447, 3 (1999).
• In Texas the rule has been construed to require independent evidence of the corpus
delicti (proof of the fact that the crime charged has been committed by someone).
– Damian v. State, 881 S.W.2d 102, 106 (Tex. App. 1994).
– Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990).
• The quantum of independent evidence required to establish the corpus delicti that
corroborates an extrajudicial confession need not be great. So long as there is some
evidence that renders the corpus delicti more probable than it would be without the
evidence, the purposes of the corroboration rule have been met.
– Damian v. State, 881 S.W.2d 102, 106 (Tex. App. 1994) (finding that a showing that a 12-year-old
girl recounting the fact that she woke up and was sore in the vaginal area and could tell that
something had been inserted into her vagina was sufficient to establish the corpus delicti of the
offense and to corroborate the defendant/appellant’s confession).
– Gribble v. State, 808 S.W.2d 65, 70-71 (Tex. Crim. App. 1990).
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TEXAS
Age of Child Victim
A. Child Pornography
B. Sexual Assault
• Mistake of fact with respect to the victim’s age is not a defense to sexual
assault. Tex. Penal Code Ann. § 22.011(a).
– Conner v. State,* 2001 Tex. App. LEXIS 7526, 4 (2001).
– Jackson v. State, 889 S.W.2d 615, 617 (Tex. App. 1994).
– Vasquez v. State, 622 S.W.2d 864, 865 (Tex. Crim. App. 1981).
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TEXAS
Multiple Counts
No state cases reported on exactly what constitutes a single item of child pornography;
however, see infra “Issues of Double Jeopardy,” Part II for a general discussion.
A. Simultaneous Possession
B. Medium Involved
• It is of no moment whether the items in question are both tapes, both pictures,
or a combination.
– Anderson v. State,* 2000 Tex. App. LEXIS 1484, 4 (2000).
C. Multiple Victims
• Those who commit multiple discrete assaults against the same victim are
liable for separate prosecution and punishment for every instance of such
criminal misconduct.
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– Gutierrez v. State, 8 S.W.3d 739, 747 (Tex. App. 1999) (finding that the appellant’s various
acts of sexual misconduct, committed against his step-daughter over a period of six years,
do not in fact comprise a single offense under the laws of Texas).
• If the evidence reveals that the defendant committed separate criminal acts
during the same occurrence that would support conviction on each offense, the
trial court does not err by submitting both.
– DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App. 1999).
• When the same act violates two different penal statutes, the two offenses are
the same for double-jeopardy purposes if one of the offenses contains all the
elements of the other; they are not the same if each offense has a unique
element.
– DeMoss v. State, 12 S.W.3d 553, 559 (Tex. App. 1999).
• A single act may be an offense against two statutes; and if each statute
requires proof of an additional fact that the other does not, an acquittal or
conviction under either statute does not exempt the defendant from
prosecution and punishment under the other.
– Garay v. State, 954 S.W.2d 59, 64 (Tex. App. 1997) (finding that the Texas penal code not
only provides separate punishments for “inducing a child to engage in sexual conduct” and
“producing a performance that includes sexual conduct by a child,” but that the two statutes
require separate elements of proof).
• Where the same act or transaction violates one statutory provision more than
once a subsequent prosecution is not barred by double-jeopardy principles if
each offense requires proof that the other does not.
– Iglehart v. State, 837 S.W.2d 122, 127-28 (Tex. Crim. App. 1992).
– Vineyard v. State, 958 S.W.2d 834, 836 (Tex. App. 1998).
• As a general rule, where one sexual act is alleged in the indictment and the evidence
at trial establishes that this act occurred on more than one occasion, the State must
elect the act upon which it would rely for conviction. Where the State fails to make
such an election, a defendant might find him- or herself without notice as to which of
a multitude of acts he or she might be called upon to defend.
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– Gutierrez v. State, 8 S.W.3d 739, 747 (Tex. App. 1999).
– O’Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App. 1988).
• The State may present evidence that the charged acts occurred on multiple occasions;
however, upon the timely motion by the defendant, the State is required to make an
election of those acts upon which it will rely to pursue a conviction.
– Gutierrez v. State, 8 S.W.3d 739, 748 (Tex. App. 1999).
– Worley v. State, 870 S.W.2d 620, 621 (Tex. App. 1994).
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TEXAS
Defenses
I. General
1. Factual
2. Legal
B. Enticement
• A child’s voluntarily leaving his or her home with another who may have held
out enticing and alluring ideas and promises to the child is not a proper
defense to charges of enticing and decoying a minor from the custody of his or
her parents.
– Escobar v. State, 133 S.W.2d 781, 782-83 (Tex. Crim. App. 1939).
– Sanchez v. State, 712 S.W.2d 170, 171 (Tex. App. 1986).
– Truelove v. State, 258 S.W. 826, 827 (Tex. Crim. App. 1924).
C. Child Pornography
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II. Specific
A. Age
B. Consent
C. Diminished Capacity
2. Insanity
D. Entrapment
E. First Amendment
1. In-Home Possession
2. Nude-Art Defense
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F. Impossibility
1. Factual
2. Legal
G. Manufacturing Jurisdiction
H. Marriage
• Mistake of fact with respect to the victim’s age is not a defense to sexual
assault. Tex. Penal Code Ann. § 22.011(a).
– Conner v. State,* 2001 Tex. App. LEXIS 7526, 5 (2001).
– Jackson v. State, 889 S.W.2d 615, 617 (Tex. App. 1994).
– Vasquez v. State, 622 S.W.2d 864, 865 (Tex. Crim. App. 1981).
J. Outrageous Conduct
K. Promiscuity
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L. Researcher
M. Sexual Orientation
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TEXAS
Sentencing Issues
I. Enhancement
A. Age of Victim
B. Distribution/Intent to Traffic
C. Number of Images
F. Use of Computers
• Tex. Code Crim. Ann. art. 42.12, § 3g(a)(1)(C) excludes anyone convicted of
aggravated sexual assault from eligibility for court-ordered probation.
– Helton v. State, 909 S.W.2d 298, 300 (Tex. App. 1995).
• A trial judge has the discretion to cumulate the sentences for two or more convictions.
Tex. Code Crim. Proc. Ann. art. 42.08.
– Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App. 2001).
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TEXAS
Supervised Release
A. Sample Conditions
• An individual must refrain from contact with persons under the age of 17 and
must faithfully participate in a sexual-abuse clinical assessment and treatment
program until released by the trial court.
– Daugherty v. State,* 1999 Tex. App. LEXIS 6132, 3 (1999).
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III. Deferred Adjudication
• The court defers further proceedings and places the defendant on community
supervision without entering an adjudication of guilt; if the defendant violates
a condition of community supervision, the court may proceed to adjudicate
guilt and assess punishment.
– Davis v. State, 968 S.W.2d 368, 369-70 (Tex. Crim. App. 1998).
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