Do you need a sex crimes attorney to defend your child pornography charges?
Are you facing a child pornography charge? Mere possession of child pornography is generally a felony of the third degree, unless one of the enhancements mentioned below applies. An experienced Houston sex crimes attorney can examine the facts in your case and make sure that any and all defenses are explored and, if applicable, pursued.
At the Law Office of Nathaniel Pitoniak, we understand the pressure and fear that are generated when you are the subject of a sex charge, particularly one allegedly involving a child. We also understand how to provide you with the best possible defense against these types of charges. Call former prosecutor Nathaniel Pitoniak today for an honest assessment of your case.
What is Child Pornography in Texas?
The offense consists of possessing or promoting child pornography. But just what is child pornography? The applicable statute, section 43.26 says that it is an offense to knowingly or intentionally (a) possess, (b) access with the intent to view, or (c) promote any visual material that depicts a child under the age of 18 engaging in sexual conduct. The term “sexual conduct” is defined as:
- Sexual intercourse – Penetration of the female organ by the male organ; or
- Simulated sexual intercourse – Having the appearance of sexual intercourse; or
- Deviate sexual intercourse – Contact between the genitals of one person and the mouth or anus of another person; or
- Bestiality – Sexual contact between a person and an animal; or
- Masturbation; or
- Sadomasochism; or
- Certain forms of lewdness – Showing the genitals, the anus or any part of the (female) breast below the top of the areola.
While the statute appears plain on its face, there are numerous “depictions” of children that could be interpreted as involving sexual conduct, but which in fact are quite innocent.
The next issue is how the law defines a “visual material” depicting the specified conduct. It certainly includes photos and films (even negatives). It also includes any physical medium (a computer disc, for example), that permits the display of the material on a computer, phone or video screen. Finally, the definition, by its terms, also includes satellite transmissions or “other method.” The definition is not clear on what “other method” means.
Finally, promotion in this context means to manufacture, sell, transfer, exhibit or advertise such material, or offer to do so.
Possession of Lewd Material Not Showing Genitals or Private Parts
In 2017, the legislature passed a new law (section 43.262) that made it an offense to possess or promote lewd material showing the exhibition of the genitals or pubic area of a child who is unclothed or partially clothed, which appeals to the prurient sexual interest, and which has no serious artistic, political, scientific or literary value. This is generally a state jail felony but does not require registration as a sex offender.
While the new law was intended to cover conduct not included in child pornography, it has created confusion over which law should be applied in a given case.
Penalties, Penalty Enhancements, and Penalty Schemes Associated with Texas Child Pornography Convictions
Because there is such a wide range of penalties associated with a conviction in the state of Texas for possession of child pornography (possession of lewd visual material depicting a child), you must have a highly experienced criminal defense attorney to help you navigate these charges. To further complicate matters, this criminal offense can be charged at the state level, or you could face federal charges, which generally bring much harsher penalties.
By default, Possession of Lewd Visual Material Depicting a Child is punished as a state jail felony but could be charged as a third-degree felony. If you have a prior conviction for possession of child pornography, you could face second-degree felony charges, and if you have two prior convictions, you could be charged with a first-degree felony.
A third-degree felony conviction in the state of Texas could result in fines up to $10,000 and a prison sentence of two to ten years. A second-degree felony conviction in the state of Texas could result in up to twenty years in prison, and a first-degree felony conviction could potentially result in life in prison.
You could also face charges of promotion if you have in your possession six or more copies of child pornography, which would be charged as a second-degree felony for a first offense or a first-degree felony for a second or third offense. If you are facing a first conviction of sexual performance by a child, the age of the child will determine whether you will face second-degree or first-degree felony charges. If the child is between the ages of 14 and 17, second-degree felony charges apply, and for children under 13, first-degree felony charges apply.
There are currently two conflicting penalty schemes under Texas law for Possession or Promotion of Child Pornography that became law as of September 1, 2023. There is some confusion—understandably—about the two bills. Under Senate Bill 1527 Penalty Scheme, a prior conviction for Possession of Child Pornography under subsection (a), an offense of possession that occurs after the passage of the bill, or possession of between 10 and 50 child pornography images or videos, will be charged as a second-degree felony. If you have two prior convictions for this offense, you will face a first-degree felony.
After the date Senate Bill 1527 was passed, if you are found in possession of 50 or more child pornography videos or images or if one of those videos shows a child being sexually assaulted, then you can also be charged with a first-degree felony, even if you have no prior convictions. Promotion of Child Pornography under Subsection (e) will be charged as a second-degree felony unless you have a prior conviction for this offense, then it will be charged as a first-degree felony.
Any offense occurring after September 1, 2023, could have a mandatory minimum of 15 years or a first-degree felony enhancement if the state can prove you not only possessed child pornography but also promoted child pornography during the same time. Under Senate Bill 129 Penalty Scheme (passed on the same date), possession of fewer than 100 child pornography images or videos will be punished as a third-degree felony, and between 100 and 500 images or videos will be punished as a second-degree felony. If you have more than 500 child pornography images or videos you will be charged with a first-degree felony.
Regardless of the number of child pornography images or videos you have in your possession, if you were an employee of a childcare facility at the time, you would face a first-degree felony with a minimum prison sentence of 25 years. Under Senate Bill 129, the state can seek an enhanced penalty to the next higher felony count if you had a prior conviction that sexually depicted a child under the age of 10. A prior conviction for Promotion of Child Pornography will enhance the penalties from a second-degree felony to a first-degree felony.
If you are convicted of any child pornography-related offense, you will be required to register as a sex offender, sometimes for life. Juvenile offenders usually have a shorter period of registration, and in some instances, the requirement to register as a sex offender could be terminated early under the Texas deregistration process.
A sentence of probation is allowed under the Texas Code of Criminal Procedure for charges of Possession of Lewd Visual Material Depicting a Child. Judges may also accept deferred adjudication plea deals, depending on the circumstances. That being said, community supervision for a suspended sentence of more than ten years is not allowed. If a deadly weapon was used or even “exhibited” during the commission of the crime, then community supervision for a suspended sentence is not an option.
Defenses to Child Pornography Charges in Texas
While child pornography carries a significant stigma, and some people may judge you based solely on unsubstantiated allegations, there are numerous possible defenses. In addition to more general defenses such as, for example, eyewitness mistake or illegal search and seizure, that may apply in many different types of cases, the following defenses may be available in a child pornography case:
- Lack of knowledge or intent – How many people have opened an email or an attachment to an email without knowing the content? Probably all of us have, at one time or another. If the email/attachment contains child pornography, possession may be established, but the element of knowledge and/or intent is absent.
- Entrapment – It is not unusual for a charge of child pornography, like many sex crimes, to begin with a police sting. Where the nature of the sting is such that it induces a person to commit the offense being charged, it can provide a valid defense.
- Illegal search and seizure – When the police search your belongings (including your phone or your computer) and seize evidence without a warrant and/or without probable cause, this may constitute a violation of the Fourth Amendment. If that occurs, the evidence can be suppressed and can be excluded from being used against you at trial.
The important thing to know is that you are innocent unless proven guilty beyond a reasonable doubt. Defenses are available, even in child pornography cases.
Child Pornography Defense Lawyer in Houston
The stigma of a sex charge can turn your life upside down. It is even more damaging when the charge relates to minors. If you have been arrested for child pornography, get the help you need. Contact Houston criminal defense lawyer Nathaniel Pitoniak today for a consultation.
