Texas Penal Code

TEXAS
Topic Outline
I. OFFENSES DEFINED
A. Aggravated Kidnapping
1. Abduct
2. “Restraint” Defined
3. “Without Consent” Defined
B. Attempted Sexual Performance
1. “Sexual Performance” Defined

2. “Performance” Defined
3. “Sexual Conduct” Defined
C. Child Enticement (a.k.a. Enticing a Minor from the Custody of a Parent)
1. What Is Enticement?
2. What Is NOT Enticement?
3. Completed Offense
D. Child Pornography
1. “Child Pornography” Defined

2. “Possession” Defined
3. “Visual Material” Defined
4. Virtual/Simulated Child Pornography
E. Criminal Solicitation of a Minor to Sexual Assault
F. Deviate Sexual Intercourse
1. “Deviate Sexual Intercourse” Defined

2. Intent
G. Indecency With a Child
1. By Exposure
2. By Sexual Contact
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H. Lasciviousness
1. Lewd or Lascivious Conduct

2. Lewd or Lascivious Exhibition of the Genitals
a. Court of Appeals of Texas, Fifth District, Dallas
b. Lascivious Intent
I. Online Enticement/Solicitation for Travel With Intent to Engage in Sex With

a Minor
J. Sexual Assault
1. Sexual Assault of a Child

2. Aggravated Sexual Assault of a Child
K. Transporting a Minor for Purposes of Prostitution
II. SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE
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
C. Timely Review of Evidence
D. Methods of Searching
E. Consent Search
1. Scope of the Search

2. Burden
3. Withdrawal of Consent
4. Third-Party Consent
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F. Plain-View Searches
1. “Plain View” Defined

2. Standard for Seizure of Item in Plain View
G. Employer Searches
H. Private Searches by Off-Duty, Law-Enforcement Officers
I. Civilian Searches
J. University-Campus Searches
K. Computer Technician/Repairperson Discoveries
L. Photo-Development Discoveries
M. Criminal Forfeiture
1. “Criminal Instrument”
2. “Obscene Device”
3. “Obscene Material”
N. Disciplinary Hearings for Federal and State Officers
O. Probation and Parolees Rights
III. JURISDICTION AND NEXUS
A. Jurisdictional Nexus
B. Internet Nexus
C. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
1. State
2. Federal
3. Concurrent
D. Interstate Possession of Child Pornography
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IV. DISCOVERY AND EVIDENCE
A. Defense Requests for Copies of Child Pornography
B. Introduction of E-mails into Evidence
1. Hearsay/Authentication Issues
2. Circumstantial Evidence
3. Technical Aspects of Electronic Evidence Regarding Admissibility
C. Text-Only Evidence
1. Introduction into Evidence

2. Relevance
D. Evidence Obtained from Internet Service Providers
1. Electronic Communications Privacy Act

2. Cable Act
3. Patriot Act
a. National Trap and Trace Authority
b. State-Court-Judge Jurisdictional Limits
E. Admissibility of Photographs to Prove Sexual Contact
1. To Show Context in Which Offense Occurred

2. To Show Intent
3. Other Grounds for Admissibility of Photographs
F. Prior Bad Acts
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
I. Presentation of Evidence During the Punishment Phase
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
K. Witnesses and Testimony
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
V. AGE OF CHILD VICTIM
A. Proving the Age of the Child Depicted in Child Pornography
B. The Defendant’s Knowledge of the Child’s Age
1. Child Pornography
2. Sexual Assault
VI. MULTIPLE COUNTS
A. What Constitutes an “Item” of Child Pornography?
B. Issues of Double Jeopardy
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
C. Notice Requirement for a Single Allegation in Indictment
VII. DEFENSES
A. General
1. Attempted Sexual Performance

a. Factual
b. Legal
2. Enticement
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
VIII. SENTENCING ISSUES
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
B. Probation for Aggravated Sexual Assault
C. Multiple Convictions
IX. SUPERVISED RELEASE
A. Supervised Release Generally
B. Conditions for Supervised Release (a.k.a. Community Supervision)
1. Sample Conditions
2. The State’s Burden for Revoking Supervised Release
C. Deferred Adjudication
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TEXAS
Case List by Court
An asterisk (*) next to a case name indicates an unpublished opinion.

Pursuant to the Texas Rules of Appellate Procedure,
unpublished opinions shall not be cited as authority by counsel or by a court.
I. United States Supreme Court
• Franks v. Delaware, 438 U.S. 154 (1978)

• Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
• Texas v. Brown, 460 U.S. 730 (1983)
II. Supreme Court of Texas
No cases reported.
III. Court of Criminal Appeals of Texas
• Allen v. State, 478 S.W.2d 946 (Tex. Crim. App. 1972)

• Bowles v. State, 550 S.W.2d 84 (Tex. Crim. App. 1977)
• Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978)
• Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984)
• Chen v. State, 42 S.W.3d 926 (Tex. Crim. App. 2001)
• Cummins v. State, 37 S.W. 435 (Tex. Crim. App. 1896)
• Cunyus v. State, 727 S.W.2d 561 (Tex. Crim. App. 1987)
• Davis v. State, 516 S.W.2d 157 (Tex. Crim. App. 1974)
• DuBose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996)
• Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. 1984)
• Escobar v. State, 133 S.W.2d 781 (Tex. Crim. App. 1939)
• Frazier v. State, 480 S.W.2d 375 (Tex. Crim. App. 1972)
• Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990)
• Gonzales v. State, 577 S.W.2d 226 (Tex. Crim. App. 1979)
• Green v. State, 533 S.W.2d 769 (Tex. Crim. App. 1976)
• Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990)
• Harris v. State, 661 S.W.2d 106 (Tex. Crim. App. 1983)
• Haynes v. State, 475 S.W.2d 739 (Tex. Crim. App. 1971)
• Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997)
• Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971)
• Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992)
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• Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990)
• 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)
• 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)
IV. Court of Civil Appeals of Texas
(The Court of Appeals of Texas was previously known as the Courts of Civil Appeals;
hence, this section refers to both courts.)
1. First District, Houston
• Conner v. State,* 2001 Tex. App. LEXIS 7526 (2001)

• Damian v. State, 881 S.W.2d 102 (Tex. App. 1994)
• Donaldson v. State,* 1988 Tex. App. LEXIS 971 (1988)
• Duron v. State, 915 S.W.2d 920 (Tex. App. 1996)
• Ex parte Hulin, 31 S.W.3d 754 (Tex. App. 2000)
• Hafford v. State, 989 S.W.2d 439 (Tex. App. 1999)
• Parker v. State,* 1998 Tex. App. LEXIS 7456 (1998)
• Renfro v. State,* 2001 Tex. App. LEXIS 1347 (2001)
• Rowell v. State, 14 S.W.3d 806 (Tex. App. 2000)
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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)
2. Second District, Fort Worth
• Hill v. State, 852 S.W.2d 769 (Tex. App. 1993)

• Jessup v. State, 853 S.W.2d 141 (Tex. App. 1993)
• State v. Young, 8 S.W.3d 695 (Tex. App. 1999)
3. Third District, Austin
• Bassa v. State,* 1998 Tex. App. LEXIS 2804 (1998)

• Grice v. State,* 2000 Tex. App. LEXIS 5838 (2000)
• Gutierrez v. State, 8 S.W.3d 739 (Tex. App. 1999)
• Hutchins v. State, 992 S.W.2d 629 (Tex. App. 1999)
• Riley v. State, 953 S.W.2d 354 (Tex. App. 1997)
• Roise v. State, 7 S.W. 3d 225 (Tex. App. 1999)
• Sanchez v. State, 712 S.W.2d 170 (Tex. App. 1986)
4. Fourth District, San Antonio
• 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)
5. Fifth District, Dallas
• Alexander v. State, 906 S.W.2d 107 (Tex. App. 1995)

• Brewer v. State,* 1994 Tex. App. LEXIS 3598 (1994)
• Caro v. State, 771 S.W.2d 610 (Tex. App. 1989)
• Daugherty v. State,* 1999 Tex. App. LEXIS 6132 (1999)
• Ex parte Mazziotta,* 1994 Tex. App. LEXIS 4110 (1994)
• Horwitz v. State,* 1997 Tex. App. LEXIS 6449 (1997)
• McColloch v. State,* 1999 Tex. App. LEXIS 4279 (1999)
6. Sixth District, Texarkana
• Clement v. State,* 2001 Tex. App. LEXIS 8228 (2001)
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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)
7. Seventh District, Amarillo
• Hampton v. State,* 2000 Tex. App. LEXIS 4721 (2000)

• LaSalle v. State, 923 S.W.2d 819 (Tex. App. 1996)
• Layton v. State,* 1997 Tex. App. LEXIS 5257 (1997)
• Taylor v. State, 54 S.W.3d 21 (Tex. App. 2001)
• Woodberry v. State, 856 S.W.2d 453 (Tex. App. 1993)
8. Eighth District, El Paso
• Mares v. State, 758 S.W.2d 932 (Tex. App. 1988)
9. Ninth District, Beaumont
• Gonzalez v. State, 648 S.W.2d 740 (Tex. App. 1983)

• Helton v. State, 909 S.W.2d 298 (Tex. App. 1995)
• Savery v. State, 767 S.W.2d 242 (Tex. App. 1989)
10. Tenth District, Waco
• Anderson v. State,* 2000 Tex. App. LEXIS 1484 (2000)

• Burke v. State, 27 S.W.3d 651 (Tex. App. 2000)
• Morris v. State,* 2001 Tex. App. LEXIS 7694 (2001)
• Scott v. State, 868 S.W.2d 430 (Tex. App. 1994)
11. Eleventh District, Eastland
No cases reported.
12. Twelfth District, Tyler
No cases reported.
13. Thirteenth District, Corpus Christi
• Baldonado v. State, 745 S.W.2d 491 (Tex. App. 1988)

• Bryson v. State, 820 S.W.2d 197 (Tex. App. 1991)
• Tarbutton v. State,* 1999 Tex. App. LEXIS 5447 (1999)
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14. Fourteenth District, Houston
• Cardenas v. State, 857 S.W.2d 707 (Tex. App. 1993)

• Greer v. State, 999 S.W.2d 484 (Tex. App. 1999)
• Jackson v. State, 889 S.W.2d 615 (Tex. App. 1994)
• Janjua v. State, 991 S.W.2d 419 (Tex. App. 1999)
• Nicholas v. State, 56 S.W.3d 760 (Tex. App. 2001)
• Staines v. State, 659 S.W.2d 50 (Tex. App. 1983)
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TEXAS
Topic Outline With Cases

I. OFFENSES DEFINED
A. Aggravated Kidnapping
• Romero v. State, 34 S.W.3d 323 (Tex. App. 2000)

1. Abduct
2. “Restraint” Defined
3. “Without Consent” Defined
B. Attempted Sexual Performance

1. “Sexual Performance” Defined
2. “Performance” Defined
3. “Sexual Conduct” Defined

• Ex parte Mazziotta,* 1994 Tex. App. LEXIS 4110 (1994)
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Texas
C. Child Enticement (a.k.a. Enticing a Minor from the Custody of a Parent)
1. What Is Enticement?
• Cummins v. State, 37 S.W. 435 (Tex. Crim. App. 1896)

2. What Is NOT Enticement?

• Escobar v. State, 133 S.W. 2d 781 (Tex. Crim. App. 1939)
3. Completed Offense
• Taggart v. State, 290 S.W.2d 226 (Tex. Crim. App. 1956)
D. Child Pornography
1. “Child Pornography” Defined
2. “Possession” Defined
3. “Visual Material” Defined
4. Virtual/Simulated Child Pornography
No state cases reported.
E. Criminal Solicitation of a Minor to Sexual Assault
F. Deviate Sexual Intercourse
1. “Deviate Sexual Intercourse” Defined
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Texas
2. Intent
G. Indecency With a Child
1. By Exposure
2. By Sexual Contact
H. Lasciviousness
1. Lewd or Lascivious Conduct

• Slusser v. State, 232 S.W.2d 727 (Tex. Crim. App. 1950)
2. Lewd or Lascivious Exhibition of the Genitals
a. Court of Appeals of Texas, Fifth District, Dallas
b. Lascivious Intent

• Allen v. State, 478 S.W.2d 946 (Tex. Crim. App. 1972)
• Bassa v. State,* 1998 Tex. App. LEXIS 2804 (1998)
• Green v. State, 533 S.W.2d 769 (Tex. Crim. App. 1976)
• McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981)
• Meredith v. State, 350 S.W.2d 550 (Tex. Crim. App. 1961)
• Santos v. State, 961 S.W.2d 304 (Tex. App. 1997)
I. Online Enticement/Solicitation for Travel With Intent to Engage in Sex With

a Minor
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Texas
J. Sexual Assault
1. Sexual Assault of a Child
2. Aggravated Sexual Assault of a Child

K. Transporting a Minor for Purposes of Prostitution
II. SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE
A. Search Warrants
1. Probable Cause
a. Sworn Affidavit

i. Facts to Be Included
• Staines v. State, 659 S.W.2d 50 (Tex. App. 1983)
ii. Sufficient of Facts and Allegations

• Massey v. State, 933 S.W.2d 141 (Tex. Crim. App.
1996)
• Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App.
1996)
• Taylor v. State, 54 S.W.3d 21 (Tex. App. 2001)
iii. Truth of Allegations

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Texas
iv. Totality of the Circumstances

• Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App.
1996)
v. Information Gathered During the Investigation
• Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App.

1990)
• Parker v. State,* 1998 Tex. App. LEXIS 7456 (1998)
vi. Use of Hearsay
b. Informants
• Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. 1984)

• Frazier v. State, 480 S.W.2d 375 (Tex. Crim. App. 1972)
• Wood v. State, 573 S.W.2d 207 (Tex. Crim. App. 1978)
c. The Defendant’s Burden

2. Scope of Search Warrant

• Haynes v. State, 475 S.W.2d 739 (Tex. Crim. App. 1971)
• Snider v. State, 681 S.W.2d 60 (Tex. Crim. App. 1984)
• Swink v. State, 747 S.W.2d 53 (Tex. App. 1988)
3. Staleness

• Gonzales v. State, 577 S.W.2d 226 (Tex. Crim. App. 1979)
• Hafford v. State, 989 S.W.2d 439 (Tex. App. 1999)
• Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971)
• Moore v. State, 456 S.W.2d 114 (Tex. Crim. App. 1970)
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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)
B. Anticipatory Warrants
C. Timely Review of Evidence
D. Methods of Searching
E. Consent Search

• Woodberry v. State, 856 S.W.2d 453 (Tex. App. 1993)
1. Scope of the Search
2. Burden
• LaSalle v. State, 923 S.W.2d 819 (Tex. App. 1996)

3. Withdrawal of Consent
• Cardenas v. State, 857 S.W.2d 707 (Tex. App. 1993)

4. Third-Party Consent

F. Plain-View Searches
• Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000)

• Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
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Texas
• Texas v. Brown, 460 U.S. 730 (1983)
1. “Plain View” Defined

2. Standard for Seizure of Item in Plain View

• State v. Young, 8 S.W.3d 695 (Tex. App. 1999)
• Texas v. Brown, 460 U.S. 730 (1983)
G. Employer Searches
H. Private Searches by Off-Duty, Law-Enforcement Officers
I. Civilian Searches
J. University-Campus Searches
K. Computer Technician/Repairperson Discoveries
L. Photo-Development Discoveries
M. Criminal Forfeiture
1. “Criminal Instrument”
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Texas
2. “Obscene Device”
3. “Obscene Material”
N. Disciplinary Hearings for Federal and State Officers
O. Probation and Parolees Rights
III. JURISDICTION AND NEXUS
A. Jurisdictional Nexus
B. Internet Nexus
C. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
1. State
2. Federal
3. Concurrent
D. Interstate Possession of Child Pornography
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Texas
IV. DISCOVERY AND EVIDENCE
A. Defense Requests for Copies of Child Pornography
B. Introduction of E-mails into Evidence
1. Hearsay/Authentication Issues
2. Circumstantial Evidence
3. Technical Aspects of Electronic Evidence Regarding Admissibility
C. Text-Only Evidence
1. Introduction into Evidence
2. Relevance
D. Evidence Obtained from Internet Service Providers
1. Electronic Communications Privacy Act
2. Cable Act
3. Patriot Act
a. National Trap and Trace Authority
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Texas
b. State-Court-Judge Jurisdictional Limits
E. Admissibility of Photographs to Prove Sexual Contact
1. To Show Context in Which Offense Occurred
2. To Show Intent
3. Other Grounds for Admissibility of Photographs
• Harris v. State, 661 S.W.2d 106 (Tex. Crim. App. 1983)

F. Prior Bad Acts
1. Not Admissible
a. Character Evidence
b. Propensity Evidence

• Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992)
2. Admissibility

• Caro v. State, 771 S.W.2d 610 (Tex. App. 1989)
• Horwitz v. State,* 1997 Tex. App. LEXIS 6449 (1997)
a. Common Scheme
• Mares v. State, 758 S.W.2d 932 (Tex. App. 1988)

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Texas
b. Accident
• Baldonado v. State, 745 S.W.2d 491 (Tex. App. 1988)

c. Evidence of Prior Criminal Conduct

• Sanders v. State, 604 S.W.2d 108 (Tex. Crim. App. 1980)
d. Continuous Criminal Episode

• Mitchell v. State, 650 S.W.2d 801 (Tex. Crim. App. 1983)
e. Other Acts Committed by the Defendant Against the Same

Child Victim
• Grice v. State,* 2000 Tex. App. LEXIS 5838 (2000)

f. To Prove Scienter
• Valenciano v. State, 705 S.W.2d 339 (Tex. App. 1986)
3. “Reasonable-Notice” Requirement
4. Relevance

5. Admissibility at the Guilt-Innocence Phase

• Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992)
G. Proof of Similar Acts

• Hill v. State, 852 S.W.2d 769 (Tex. App. 1993)
• Jessup v. State, 853 S.W.2d 141 (Tex. App. 1993)
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Texas
H. “Background” Evidence

• Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)
I. Presentation of Evidence During the Punishment Phase

• Wright v. State, 468 S.W.2d 422 (Tex. Crim. App. 1971)
• Yohey v. State, 801 S.W.2d 232 (Tex. App. 1990)
J. Privileges
1. Physician-Patient Confidentiality
• Cassingham v. Lutheran Sunburst Health Serv., 748 S.W.2d 589 (Tex.

App. 1988)
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
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Texas
K. Witnesses and Testimony
1. Child-Victim Testimony
2. Expert Testimony
a. Qualifications

• Roise v. State, 7 S.W.3d 225 (Tex. App. 1999)
b. Relevance
• Roise v. State. 7 S.W.3d 225 (Tex. App. 1999)
c. “Harm-to-Children” Testimony in Possession-of-Child-

Pornography Case
• Roise v. State. 7 S.W.3d 225 (Tex. App. 1999)
3. Outcry Witness
a. General Rule
b. “Statement About the Offense”

L. Extrajudicial Confessions

• Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990)
V. AGE OF CHILD VICTIM
A. Proving the Age of the Child Depicted in Child Pornography
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Texas
B. The Defendant’s Knowledge of the Child’s Age
2. Sexual Assault

• Duron v. State, 915 S.W.2d 920 (Tex. App. 1996)
VI. MULTIPLE COUNTS
A. What Constitutes an “Item” of Child Pornography?
No state cases reported on exactly what constitutes a single item of child

pornography; however, see infra “Issues of Double Jeopardy,” Part VI.B for a
general discussion.
B. Issues of Double Jeopardy
1. Simultaneous Possession

• Roise v. State, 7 S.W.3d 225 (Tex. App. 1999)
• Vineyard v. State, 958 S.W.2d 834 (Tex. Crim. App. 1998)
2. Medium Involved
3. Multiple Victims
4. Multiple Violations of Same Victim
5. Separate Criminal Acts
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6. Violation of More than One Penal Statute

• Garay v. State, 954 S.W.2d 59 (Tex. App. 1997)
• Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992)
• Vineyard v. State, 958 S.W.2d 834 (Tex. App. 1998)
7. Greater and Lesser Included Offenses

• Hutchins v. State, 992 S.W.2d 629 (Tex. App. 1999)
C. Notice Requirement for a Single Allegation in Indictment

• Worley v. State, 870 S.W.2d 620 (Tex. App. 1994)
VII. DEFENSES
A. General
1. Attempted Sexual Performance
a. Factual
b. Legal
2. Enticement
• Escobar v. State, 133 S.W.2d 781 (Tex. Crim. App. 1939)

• Truelove v. State, 258 S.W. 826 (Tex. Crim. App. 1924)
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B. Specific
1. Age
2. Consent
• Pawson v. State, 865 S.W.2d 36 (Tex. Crim. App. 1993)
3. Diminished Capacity
a. Addiction to the Internet
b. Insanity
4. Entrapment
• Scott v. State, 868 S.W.2d 430 (Tex. App. 1994)
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
• Stone v. Simms,* 2001 Tex. App. LEXIS 717 (2001)
9. Mistake of Fact: Victim’s Age

10. Outrageous Conduct
11. Promiscuity
• Riley v. State, 953 S.W.2d 354 (Tex. App. 1997)
12. Researcher
13. Sexual Orientation
VIII. SENTENCING ISSUES
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
5. Sadistic, Masochistic, or Violent Material
6. Use of Computers
B. Probation for Aggravated Sexual Assault
• Helton v. State, 909 S.W.2d 298 (Tex. App. 1995)
C. Multiple Convictions
• Nicholas v. State, 56 S.W.3d 760 (Tex. App. 2001)
IX. SUPERVISED RELEASE
A. Supervised Release Generally
• Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978)

B. Conditions for Supervised Release (a.k.a. Community Supervision)
1. Sample Conditions

2. The State’s Burden for Revoking Supervised Release
• Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984)

• Reynolds v. State, 746 S.W.2d 536 (Tex. App. 1988)
C. Deferred Adjudication
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TEXAS
Case Highlights

Alexander v. State, 906 S.W.2d 107 (Tex. App. 1995)

The Court of Appeals for the Fifth Circuit, Dallas, adopted the federal courts’
interpretation of “lewd and lascivious exhibition of genitals.”
Allen v. State, 478 S.W.2d 946 (Tex. Crim. App. 1972)

Lascivious intent can be inferred from the defendant’s conduct, motions, gestures, and
surrounding circumstances.
Anderson v. State,* 2000 Tex. App. LEXIS 1484 (2000)

In a case involving the sexual assault of a child, the State is not required to show that the
defendant knew the victim was under the age of 17.
Baldonado v. State, 745 S.W.2d 491 (Tex. App. 1988)

Extraneous offenses, such as evidence of the defendant’s conduct with other children, are
admissible to prove scienter and to rebut claims that contact with child victims was
innocent.
Bassa v. State,* 1998 Tex. App. LEXIS 2804 (1998)

In a prosecution for indecency with a child, the requisite intent to arouse or gratify sexual
desire can be inferred from the defendant’s conduct and remarks.
Bowles v. State, 550 S.W.2d 84 (Tex. Crim. App. 1977)

Lascivious intent can be inferred from the defendant’s conduct, remarks, and surrounding
circumstances.
Bradley v. State, 564 S.W.2d 727 (Tex. Crim. App. 1978)

Probation may not be terminated without an affirmative finding of a violation of
probation supported by a preponderance of the evidence. The probationer is entitled to
certain due-process protections in revocation proceedings.
Brewer v. State,* 1994 Tex. App. LEXIS 3598 (1994)

Because no other evidence was admitted to dissipate the taint caused by the admission of
the extraneous-offense evidence, the court could not conclude beyond a reasonable doubt
that the erroneously admitted evidence did not contribute to the appellant’s conviction.
Bryson v. State, 820 S.W.2d 197 (Tex. App. 1991)

Extraneous offenses are admissible to negate or rebut the possibility of accident.
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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.
Cardenas v. State, 857 S.W.2d 707 (Tex. App. 1993)

The scope of a general oral consent to search is not limitless, but rather, “constrained by
the bounds of reasonableness.”
Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984)

A trial court abuses its discretion in revoking a defendant’s probation on the ground that
the defendant failed to “report to the probation officer as required,” a condition that, due
to its vagueness and indefiniteness, fails to inform the probationer with sufficient
certainty of what he or she is supposed to do.
Caro v. State, 771 S.W.2d 610 (Tex. App. 1989)

When a law-enforcement officer makes a lawful custodial arrest of the occupant of an
automobile, the officer may search the passenger compartment of that automobile as a
contemporaneous incident of the arrest.
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.
Chen v. State, 42 S.W.3d 926 (Tex. Crim. App. 2001)

Evidence presented at trial, when viewed in the light most favorable to the verdict, was
sufficient for the trier of fact to reasonably conclude that the appellant was guilty of
attempted sexual performance by a child, even though the “child” was a 47-year-old male
undercover officer posing as a 13-year-old girl.
Clement v. State,* 2001 Tex. App. LEXIS 8228 (2001)

When information attributed to an informant is unaltered, it is immaterial whether the
statement is written, verbal, or a combination thereof.
Conner v. State,* 2001 Tex. App. LEXIS 7526 (2001)

Mistake of fact with respect to the victim’s age is not a defense to sexual assault.
Cummins v. State, 37 S.W. 435 (Tex. Crim. App. 1896)

The statute, art. 625a, Penal Code, Enticing Minor from Parent, requires that a minor be
knowingly decoyed or enticed from his or her parent. The bare fact that a party hires a
minor with knowledge that that minor has a parent living is not sufficient to constitute
this offense.
Cunyus v. State, 727 S.W.2d 561 (Tex. Crim. App. 1987)

Offering children beer, showing them obscene magazines, and offering to take them to
the movies, while unacceptable and inappropriate behavior, does not rise to the level of
criminal behavior for purposes of enticing a child.
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Damian v. State, 881 S.W.2d 102 (Tex. App. 1994)
An extrajudicial confession is insufficient to support a conviction absent corroboration.
Daugherty v. State,* 1999 Tex. App. LEXIS 6132 (1999)

Community supervision is revocable if the terms of the supervision are violated.
Davis v. State, 516 S.W.2d 157 (Tex. Crim. App. 1974)

There are two elements necessary to establishing a violation of the assault-with-intent-to
murder statute: (1) there must be an assault; and (2) the assault must be carried out with
the specific intent to kill. If the instrument used to commit the assault is not deadly per
se, then the intent may be ascertained from and shown by the surrounding facts and
circumstances.
Davis v. State, 968 S.W.2d 368 (Tex. Crim. App. 1998)

Deferred adjudication is a type of community supervision, wherein if the defendant
violates a condition of community supervision, the court may proceed to adjudicate guilt
and assess punishment.
DeMoss v. State, 12 S.W.3d 553 (Tex. App. 1999)

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 the search warrant.
Donaldson v. State,* 1988 Tex. App. LEXIS 971 (1988)

Evidence of prior criminal conduct that is collateral to the charge on which the defendant
is being tried is inadmissible; however, when one offense or transaction is one
continuous criminal episode, or another offense is a part of the case on trial, or closely
interwoven therewith, proof of all the facts is proper.
DuBose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996)

When reviewing a trial court’s denial of the defendant’s motion to suppress the abuse-of-
discretion standard is to be used by the appellate court.
Duron v. State, 915 S.W.2d 920 (Tex. App. 1996)

The crime of indecency with a child in Texas does not require the State to prove the
defendant knew at the time of the offense his or her victim was a child under age 17.
Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. 1984)

The scope of a warrantless search of an automobile is not defined by the nature of the
container in which the contraband is hidden. Rather it is defined by the object of the
search and the places in which there is probable cause to believe that it may be found.
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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.
Ex parte Hulin, 31 S.W.3d 754 (Tex. App. 2000)

It is a defendant’s burden to show that bail is excessive. The primary factors to be
considered in determining what constitutes reasonable bail are the punishment that can be
imposed and the nature of the offense.
Ex parte Mazziotta,* 1994 Tex. App. LEXIS 4110 (1994)

The defendant has the burden of showing that bonds are excessive and that he attempted
to make bond in the fixed amount but could not do so. Although the ability to make bail
is one fact, even indigence is not controlling.
Franks v. Delaware, 438 U.S. 154 (1978)

Where a defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in a search-warrant affidavit, and if the allegedly false statement is necessary to
the finding of probable cause, the Fourth Amendment of the U.S. Constitution requires
that a hearing be held at the defendant’s request. In the event that at that hearing the
allegation of perjury or reckless disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish probable cause, the search
warrant must be voided and the fruits of the search excluded to the same extent as if
probable cause was lacking on the face of the affidavit.
Frazier v. State, 480 S.W.2d 375 (Tex. Crim. App. 1972)

The search of a defendant’s coat, as he begins to put it on after being arrested, is within
the permissible scope of a search incident to arrest. Further, hearsay may be the basis for
a warrant. When hearsay forms the basis of an affidavit for a search warrant, two types of
information must be disclosed: (1) information showing that matter which is lawfully
subject to seizure is probably where it is alleged to be; and (2) information showing the
reliability of the informant.
Garay v. State, 954 S.W.2d 59 (Tex. App. 1997)

The Texas Penal Code provides separate punishments for “inducing a child to engage in
sexual conduct” and “producing a performance that includes sexual conduct by a child.”
The two statutes require proof of different elements for a violation to occur.
Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990)

The outcry witness must be the first person, 18 years old or older, to whom the child
makes a statement that in some discernible manner describes the alleged offense. The
statement must be more than words that give a general allusion that something in the area
of child abuse was going on.
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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.
Gonzales v. State, 577 S.W.2d 226 (Tex. Crim. App. 1979)

The requirements for a sufficiently particular description can vary according to the thing
being described.
Gonzalez v. State, 648 S.W.2d 740 (Tex. App. 1983)

A law-enforcement photograph depicting an automobile in plain view in an area open to
use by the public is admissible as evidence without a warrant.
Green v. State, 533 S.W.2d 769 (Tex. Crim. App. 1976)

In an indictment the omission of the act constituting the attempt is not fundamental error.
Greer v. State, 999 S.W.2d 484 (Tex. App. 1999)

In a probation-revocation hearing, the State must prove by a preponderance of the
evidence that the defendant violated a condition of his or her probation. Proof of a single
violation is sufficient to support a revocation.
Gribble v. State, 808 S.W.2d 65 (Tex. Crim. App. 1990)

The corpus delicti of capital murder includes more than merely homicide by a criminal
agency. Evidence independent of the appellant’s confession is required to show that his
or her victim had been kidnapped. Such evidence need not, however, be sufficient by
itself to prove the offense of kidnapping.
Grice v. State,* 2000 Tex. App. LEXIS 5838 (2000)

Evidence of other acts committed by the defendant against the same child victims is
admissible for its bearing on relevant matters, including the defendant’s state of mind.
Gutierrez v. State, 8 S.W.3d 739 (Tex. App. 1999)

Those who commit multiple discrete assaults against the same victim are liable for
separate prosecution and punishment for every instance of such criminal misconduct.
Hafford v. State, 989 S.W.2d 439 (Tex. App. 1999)

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.
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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.
Harris v. State, 661 S.W.2d 106 (Tex. Crim. App. 1983)

Where pictorial evidence will help the jury to understand verbal testimony, such as the
technical language used by a medical doctor in describing the injuries sustained by a
victim of a crime, a trial judge does not abuse his or her discretion in admitting these
photographs.
Haynes v. State, 475 S.W.2d 739 (Tex. Crim. App. 1971)

The contents of an envelop found in the same container as marijuana were not admissible
because the seizure or compulsory production of a person’s private papers, the contents
of which are to be used in evidence against him or her, compels him or her to be a
witness against him- or herself in violation of the Fifth Amendment and constitutes an
illegal search and seizure under the Fourth Amendment.
Helton v. State, 909 S.W.2d 298 (Tex. App. 1995)

The Texas Criminal Code excludes anyone convicted of aggravated sexual assault from
eligibility for court-ordered probation.
Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997)

The attorney-client privilege must yield to strong public-policy concerns, such as
protecting a child from death.
Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971)

The affidavit supporting a search warrant was defective because it failed to disclose facts
that would enable the magistrate to ascertain from the affidavit that the event upon which
the probable cause was founded was not so remote as to render it ineffective; therefore,
the subsequent search was illegal.
Hill v. State, 852 S.W.2d 769 (Tex. App. 1993)

The State must demonstrate that evidence of extraneous offenses had relevance apart
from its tendency to prove the defendant’s character and to show he or she acted in
conformity therewith.
Horwitz v. State,* 1997 Tex. App. LEXIS 6449 (1997)

Evidence of other crimes, wrongs, or acts is admissible to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
absence of accident.
Hutchins v. State, 992 S.W.2d 629 (Tex. App. 1999)

Greater-inclusive and lesser-included offenses are the same for jeopardy purposes.
Indecency with a child by exposure is a lesser-included offense of aggravated sexual
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assault. Consequently double jeopardy arose when the defendant was convicted of
indecency after having already been convicted of aggravated sexual assault.
Iglehart v. State, 837 S.W.2d 122 (Tex. Crim. App. 1992)

Where the same act or transaction violates two distinct statutory provisions, or, as here,
violates one statutory provision twice, a subsequent prosecution is not barred by the
double-jeopardy clause if each statutory provision requires proof of a fact that the other
does not.
Jackson v. State, 889 S.W.2d 615 (Tex. App. 1994)

To convict for aggravated sexual assault or sexual assault of a child, the State is not
required to show that the defendant knew the victim was younger than 17 years of age.
The State has also long denied the defense of ignorance or mistake in relation to sexual
offenses involving children.
Janjua v. State, 991 S.W.2d 419 (Tex. App. 1999)

The Texas Code of Criminal Procedure provides authority to forfeit certain items used in
the commission of an offense involving a criminal instrument.
Jessup v. State, 853 S.W.2d 141 (Tex. App. 1993)

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.
Johnson v. State, 803 S.W.2d 272 (Tex. Crim. App. 1990)

In Texas the spouse of the accused has a privilege not to be called as a witness for the
State; however, this rule does not prohibit the spouse from testifying for the State, even
over objection by the accused. A spouse who testifies on behalf of an accused is subject
to cross-examination. Failure by an accused to call his or her spouse as a witness, where
other evidence indicates that the spouse could testify to relevant matters, is a proper
subject of comment by counsel.
Johnson v. State, 967 S.W.2d 848 (Tex. Crim. App. 1998)

In cases involving sexual assault of a child, the State is not required to show that the
appellant knew the victim to be younger than 17 years of age. To do so would establish
ignorance or mistake as a defense in contravention of the clear legislative intent.
LaSalle v. State, 923 S.W.2d 819 (Tex. App. 1996)

Neither the Texas constitution nor statutory law requires a defendant be rewarned when
there is a transition from questioning regarding one offense to questioning about another
offense, and it stands to reason that a rewarning is not required where the interrogation is
only a continuation about the same offense.
Layton v. State,* 1997 Tex. App. LEXIS 5257 (1997)

The data imparted in an affidavit must be truthful in the sense that it is believed or
appropriately accepted by the affiant as true.
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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.
Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992)

Evidence of extraneous offenses that are indivisibly connected to the charged offense and
necessary to the State’s case in proving the charged offense may be admissible as
relevant evidence to explain the context of the offense for which the defendant is on trial.
Mares v. State, 758 S.W.2d 932 (Tex. App. 1988)

The Confrontation Clause merely guarantees an opportunity for effective cross-
examination before the jury, not confrontational cross-examination at each and every
opportunity. The full opportunity for cross-examination at trial in the defendant’s
presence means there has been no violation of the constitutional right to confrontation
and cross-examination.
Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996)

An affidavit must allege substantial facts establishing probable cause to believe that the
items would be found at the identified place. The question is whether the facts submitted
to the magistrate are sufficient to justify a conclusion that the property that is the object
of the search probably is on the premises to be searched at the time the warrant issues.
McColloch v. State,* 1999 Tex. App. LEXIS 4279 (1999)

Regarding the admissibility of prior bad acts at the punishment phase, regardless of the
plea and whether the punishment be assessed by the judge or the 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.
McKenzie v. State, 617 S.W.2d 211 (Tex. Crim. App. 1981)

Proper jury argument is that which summarizes the evidence, makes reasonable
deductions from the evidence, responds to argument of opposing counsel, and pleads for
law enforcement. For a prosecutor to argue outside the record and inject personal opinion
is improper.
Meredith v. State, 350 S.W.2d 550 (Tex. Crim. App. 1961)

The appellant’s lascivious intent can be inferred from his conduct of intentionally
exposing his private parts to a 3-year-old female child and from his obscene and indecent
remarks accompanying such conduct.
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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.
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991)

If extraneous-offense evidence is not “relevant” apart from supporting an inference of
“character conformity,” it is absolutely inadmissible under Rule 404(b).
Moore v. State, 456 S.W.2d 114 (Tex. Crim. App. 1970)

As to the delay in securing the search warrant, simultaneity is normally impossible, but
just how long a time may be permitted to elapse without destroying the basis for a
reasonable belief as to the continuance of the situation set forth in the affidavit will vary
according to the facts of the individual case.
Morris v. State,* 2001 Tex. App. LEXIS 7694 (2001)

Appellate courts give great deference to the magistrate’s decision to issue the warrant and
determine whether, considering the totality of the circumstances, the magistrate had a
substantial basis for concluding probable cause existed.
Navarro v. State,* 2000 Tex. App. LEXIS 2688 (2000)

Evidence of extraneous bad acts to prove the defendant’s character in order to show
conformity therewith is not admissible. Such evidence is admissible, however, for other
purposes provided the State extends reasonable notice to the defendant. “Reasonable
notice” depends on the facts and circumstances of the case.
Nicholas v. State, 56 S.W.3d 760 (Tex. App. 2001)

A trial judge has the discretion to cumulate sentences for two or more convictions. A trial
court abuses its discretion when it applies an erroneous legal standard or when no
reasonable view of the record supports the trial court’s conclusion under the correct law
and facts viewed in the light most favorable to its legal conclusion. As a practical matter,
however, an abuse of discretion generally will be found only if the trial court imposes
consecutive sentences where the law requires concurrent sentences, where the court
imposes concurrent sentences but the law requires consecutive ones, or where the court
otherwise fails to observe the statutory requirements pertaining to sentencing.
O’Neal v. State, 421 S.W.2d 391(Tex. Crim. App. 1967)

Extraneous evidence, showing that the defendant had committed sexual acts with boys
other than the complainant under similar circumstances and conditions, is admissible to
show common plan or scheme, lascivious intent, purpose, and motive.
O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988)

The trial court, in its discretion, may order the State to make its election as to which
criminal act upon which it will rely to prove a crime, at any time prior to the resting of
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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.
Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992)

When the State seeks to admit extraneous offense evidence under a theory of “system” or
modus operandi, there must be a showing that the extraneous offense that was committed
by the defendant was so nearly identical in method to the charged offense as to earmark
them as the handiwork of the accused. The State must show more than the mere repeated
commission of crimes of the same type or class.
Parker v. State,* 1998 Tex. App. LEXIS 7456 (1998)

A search warrant is supported by probable cause if it reflects facts and circumstances
within a law-enforcement officer’s knowledge that would warrant a reasonable person to
believe that items of contraband or evidence of a crime may be presently found in a
specified place. Additionally, probable cause can be supported by information gathered
by the affiant or other law-enforcement officers during the course of an investigation.
Pawson v. State, 865 S.W.2d 36 (Tex. Crim. App. 1993)

Consent is irrelevant to a prosecution involving the sexual assault of a child.
Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App. 1996)

Whether the facts alleged in a probable-cause affidavit sufficiently support a search
warrant is determined by examining the totality of circumstances. The allegations are
sufficient if they would justify a conclusion that the object of the search is probably on
the premises.
Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000)

A protective sweep must not be a full search of the premises. Rather it may only extend
to a cursory inspection of those spaces where a person may be found and may only last
long enough to dispel the reasonable suspicion of danger. The protective sweep is not an
automatic right law enforcement possesses when making an in-home arrest. It is
permitted only when justified by a reasonable, articulable suspicion that the house is
harboring a person posing a danger to those on the arrest scene.
Renfro v. State,* 2001 Tex. App. LEXIS 1347 (2001)

The rule is that a fatal variance results when the indictment alleges that a person’s
identity is unknown to the grand jury, and proof at the trial shows that the grand jury did
in fact know the name of the person or could have ascertained it by reasonable diligence.
Reynolds v. State, 746 S.W.2d 536 (Tex. App. 1988)

Proof by a preponderance of the evidence that a probationer violated one of the
conditions of his or her probation is sufficient to justify the court in revoking such
probation. Appellate review of an order revoking probation is limited to determining if
the trial court abused its discretion, and when there is factually sufficient evidence to
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support a finding that a condition of probation has been violated the trial court does not
abuse its discretion in revoking probation.
Riley v. State, 953 S.W.2d 354 (Tex. App. 1997)

The Third District Court of Appeals, Austin, has held that promiscuity involves a variety
of consensual sexual conduct with a variety of partners continuing over a reasonable
period of time.
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993)

There is a two-part test to be applied in determining the admissibility of background
evidence. The first question to be addressed is whether the background evidence is
relevant. If the background evidence in question is relevant, the next issue to be resolved
is whether the evidence should be admitted as an exception.
Roise v. State, 7 S.W.3d 225 (Tex. App. 1999)

The party offering the expert’s testimony bears the burden of proof. Two initial hurdles
must be overcome before expert testimony will be admissible. The proponent of the
testimony must establish: (1) that the scientific, technical, or other specialized knowledge
will aid the trier of fact; and (2) that the expert witness is qualified to testify on the
subject.
Romero v. State, 34 S.W.3d 323 (Tex. App. 2000)

In order to be entitled to a lesser-included-offense instruction, a defendant is required to
show: (1) the lesser included offense is included within the proof necessary to establish
the charged offense; and (2) some evidence exists in the record that would allow a
rational jury to conclude that the appellant was guilty only of the lesser offense.
Rosales v. State,* 2002 Tex. App. LEXIS 256 (2002)

Aggravated kidnapping requires proof of all the elements for kidnapping as well as proof
of an aggravating element. Thus kidnapping is a lesser-included offense of aggravated
kidnapping because kidnapping is within the proof necessary to establish aggravated
kidnapping, the offense charged in this case.
Rowell v. State, 14 S.W.3d 806 (Tex. App. 2000)

Probable cause ceases to exist when, at the time the search warrant is issued, it would be
unreasonable to presume the items remain at the suspected place.
Sanchez v. State, 712 S.W.2d 170 (Tex. App. 1986)

In a case of enticement of a minor, the State must offer evidence as to the nature of the
relationship between the defendant and a minor prior to the day in question, or of any
conduct on the defendant’s part, from which it can be inferred that the defendant
“enticed” or “persuaded” the minor to leave his or her parents. Even if the evidence is
sufficient to establish that the defendant knowingly “took” the minor from his or her
parents’ custody, the record must also contain no evidence of an intent on the defendant’s
part to interfere with the parents’ lawful custody.
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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.
Santos v. State, 961 S.W.2d 304 (Tex. App. 1997)

Unexplained flight has long been deemed indicative of consciousness of guilt. The Court
of Criminal Appeals has stated flight amounts to a quasi-admission of guilt. No
distinction has been made between flight from the immediate scene of the crime and
flight from peace officers.
Savery v. State, 767 S.W.2d 242 (Tex. App. 1989)

The First Amendment does not forbid a state from prohibiting child pornography. Even
the possession of child pornography may be prohibited.
Savery v. State, 782 S.W.2d 321 (Tex. App. 1989)

Child pornography is subject to State prohibition, regulation, and criminalization. Texas
possesses the power to prohibit and avert child pornography, including forbidding
possession in a home.
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)

The question whether a consent to a search was in fact “voluntary” or was the product of
duress or coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances. While knowledge of the right to refuse consent is one
factor to be taken into account, the government need not establish such knowledge as the
sine qua non of an effective consent. As with law-enforcement questioning, two
competing concerns must be accommodated in determining the meaning of a “voluntary”
consent – the legitimate need for such searches and the equally important requirement of
assuring the absence of coercion.
Scott v. State, 868 S.W.2d 430 (Tex. App. 1994)

Article 18.02 of the Code of Criminal Procedure sets forth the items for which a search
warrant may be issued. Specific items not listed in subsections one through nine may be
sought in a search warrant under the catchall language of subsection (10). A search
warrant issued under article 18.02(10) is referred to as an “evidentiary warrant.” Only
judges of municipal courts of record licensed as attorneys, statutory county or district
judges, or judges from the Court of Criminal Appeals or Supreme Court may issue
evidentiary warrants under article 18.02(10); however, if the item sought to be seized is
listed in article 18.02 then any magistrate may issue the warrant.
Simmonds v. State, 51 S.W.3d 445 (Tex. App. 2001)

For a “plain-view” seizure to be constitutionally permissible, two requirements must be
met. First the officer must have a right to be where he or she is. Second the incriminating
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nature of the evidence must be immediately apparent; that is, there must be probable
cause to associate the item with criminal activity.
Slusser v. State, 232 S.W.2d 727 (Tex. Crim. App. 1950)

The statute defining sodomy is not void for vagueness or indefiniteness.
Snider v. State, 681 S.W.2d 60 (Tex. Crim. App. 1984)

There are three conditions that must be met in order to invoke the plain-view exception to
the warrant requirement: the initial intrusion must be proper so that law enforcement has
a right to be where they are; the discovery of the evidence must be inadvertent; and it
must be immediately apparent to law enforcement that they have evidence before them.
Staines v. State, 659 S.W.2d 50 (Tex. App. 1983)

An affidavit for a search warrant is valid when it states facts and circumstances from
which a reasonable person could conclude that the items to be seized are where it claims
them to be and that the items are of a criminal nature such that the law authorizes their
seizure.
State v. Young, 8 S.W.3d 695 (Tex. App. 1999)

Officers may seize plain-view evidence when the objects discovered and seized are
reasonably related to the offense under investigation and the discovery is made in the
course of a good-faith search conducted within the parameters of a valid search warrant.
Stone v. Simms,* 2001 Tex. App. LEXIS 717 (2001)

Parties have the right to contract regarding their property as they see fit, provided they do
not contravene public policy and their contracts are not otherwise illegal. Texas courts
will not enforce an illegal contract, particularly where the contract involves the doing of
an act prohibited by statutes intended for the protection of the public health and welfare.
Texas courts will neither aid in the enforcement of such a contract, nor grant any relief to
a party who has executed it.
Swink v. State, 747 S.W.2d 53 (Tex. App. 1988)

When the scope of a search is contested because of the location of the items seized, the
officers must show that they were properly in the place where the item was found. The
officers may show that they were properly in the place searched based on a search
warrant.
Taggart v. State, 290 S.W.2d 226 (Tex. Crim. App. 1956)

The fact that the appellant desisted without the intervention of an outside force did not
affect his purpose. When the appellant enticed the child into the automobile for the
purpose of having indecent familiarity with her, the felony offense charged (aggravated
assault) is complete. Whether or not he ultimately committed the aggravated assault upon
her is not the test.
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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.
Taylor v. State, 54 S.W.3d 21 (Tex. App. 2001)

In reaching a decision as to whether or not the facts mentioned in an affidavit are
sufficient to establish probable cause, the magistrate may draw reasonable inferences
from fact and circumstances alleged in the affidavit before him or her.
Texas v. Brown, 460 U.S. 730 (1983)

Objects such as weapons or contraband found in a public place may be seized by law
enforcement without a warrant. The seizure of property in plain view involves no
invasion of privacy and is presumptively reasonable, assuming that there is probable
cause to associate the property with criminal activity.
Truelove v. State, 258 S.W. 826 (Tex. Crim. App. 1924)

It is not a defense to enticement that the child left the home of her father voluntarily.
Valenciano v. State, 705 S.W.2d 339 (Tex. App. 1986)

It is a general rule that a defendant is entitled to be tried on the accusation in the State’s
pleading and not for being a criminal generally; however, extraneous acts of misconduct
by the accused are admissible to prove scienter where intent or guilty knowledge is an
essential element of the State’s case and cannot be inferred from the act itself.
Vasquez v. State, 622 S.W.2d 864 (Tex. Crim. App. 1981)

In order to establish criminal responsibility for the offense of rape of a child, the State
must allege and prove that the defendant acted intentionally, knowingly, and recklessly.
The indictment and charge before the court required the State to show the appellant
knowingly engaged in the sexual intercourse. It did not require the State to show that the
appellant knew the victim to be younger than 17.
Vineyard v. State, 958 S.W.2d 834 (Tex. Crim. App. 1998)

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 of a fact that the other does not.
Wachter v. State, 961 S.W.2d 598 (Tex. App. 1997)

Probable cause to support the issuance of a search warrant exists where the facts given to
the magistrate are sufficient to justify a conclusion that the object of the search is
probably on the premises to be searched at the time the warrant is issued. It is enough that
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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.
Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000)

A law-enforcement officer’s subjective motive will never invalidate objectively
justifiable behavior under the Fourth Amendment. Subjective intentions play no role in
an ordinary, probable-cause, Fourth-Amendment analysis.
Wood v. State, 573 S.W.2d 207 (Tex. Crim. App. 1978)

The general rule is that the issuance of a subpoena to a third party to obtain the records of
the party does not violate the rights of a defendant, even if a criminal prosecution is
contemplated at the time the subpoena is issued.
Woodberry v. State, 856 S.W.2d 453 (Tex. App. 1993)

A landlady with access to the defendant’s room for the purposes of cleaning it is not
enough to establish that she has joint control; therefore, she is not able to consent to a
search of the room.
Worley v. State, 870 S.W.2d 620 (Tex. App. 1994)

An extraneous offense is any act of misconduct, whether resulting in prosecution or not,
which is not shown in the charging instrument and which was shown to have been
committed by the accused. Multiple occurrences of the same conduct committed against
the same complainant may be shown at trial, and the State will be required, upon timely
request by the accused, to elect which occurrence it will rely upon for the conviction.
Wright v. State, 468 S.W.2d 422 (Tex. Crim. App. 1971)

Care, control, and management of property are not necessarily exclusive in one person
but may be joint in several persons. If there are two joint possessors, it may be alleged
that one of them was in possession of the property.
Yohey v. State, 801 S.W.2d 232 (Tex. App. 1990)

Unfair prejudice is a consideration that can justify the exclusion of relevant evidence. The
term, however, does not simply mean that the evidence will injure or prejudice the
opponent’s case, which is, after all, the central point of offering evidence. The term refers
to an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.
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TEXAS
Offenses Defined

I. Aggravated Kidnapping
• A person commits the offense of aggravated kidnapping if he or she intentionally or

knowingly abducts another person with the intent to violate or abuse him or her
sexually. Tex. Penal Code Ann. § 20.04(a)(4).
– Romero v. State, 34 S.W.3d 323, 325 (Tex. App. 2000).
– Rosales v. State,* 2002 Tex. App. LEXIS 256, 2-3 (2002).
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
• “Restrain” means to restrict a person’s movements without consent, so as to

interfere substantially with his or her liberty, by moving him or her from one
place to another or by confining him or her. Tex. Penal Code Ann. § 20.01(1).
C. “Without Consent” Defined
• Restraint is “without consent” if it is accomplished by force, intimidation, or

deception, or by any means if the victim is less than 14 years of age. Tex.
Penal Code Ann. § 20.01(1).
II. Attempted Sexual Performance
• The offense of attempted sexual performance by a child is committed if:

(1) the defendant;
(2) with specific intent to commit sexual performance by a child;
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(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.
– 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).
A. “Sexual Performance” Defined
• Sexual performance means any performance or part thereof that includes

sexual conduct by a child younger than 17 years of age. 1985 Tex. Gen. Laws
2133.
– But see Tex. Penal Code Ann. § 43.25(a)(1) (stating that “sexual performance” means any
performance or part thereof that includes sexual conduct by a child younger than 18 years
of age).
B. “Performance” Defined
• Performance means any play, motion picture, photograph, dance, or other

visual representation that can be exhibited before an audience of one or more
persons. Tex. Penal Code Ann. § 43.25(a)(3).
C. “Sexual Conduct” Defined
• Sexual conduct is actual or simulated sexual intercourse, deviate sexual

intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd
exhibition of the genitals. Tex. Penal Code Ann. § 43.25(a)(2).
– Ex parte Mazziotta,* 1994 Tex. App. LEXIS 4110, 3 (1994).
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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– Cunyus v. State, 727 S.W.2d 561, 563 (Tex. Crim. App. 1987).
• In order to constitute the offense of enticing a minor from the custody of a

parent under provisions of Article 625a of the Texas Penal Code, it is
necessary that the minor be knowingly decoyed or enticed from his or her
parent(s).
– Cummins v. State, 37 S.W. 435, 435 (Tex. Crim. App. 1896).
B. What Is NOT Enticement?
• The mere employment of a minor child is not sufficient to constitute the

offense of knowingly decoying or enticing a minor from his or her parent(s).
– Escobar v. State, 133 S.W. 2d 781, 783 (Tex. Crim. App. 1939).
• 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).
• There is no enticement when there is no evidence of an intent on the

defendant’s part to interfere with the parents’ lawful custody of the minor
child.
– Sanchez v. State, 712 S.W.2d 170, 172 (Tex. App. 1986).
C. Completed Offense
• When an individual entices a child into an automobile for the purpose of

having indecent familiarity with him or her, the felony offense, of lasciviously
intending to entice any child under 14 years of age to enter the vehicle for the
purpose of committing an aggravated assault upon the child, is complete.
Whether or not an aggravated assault was ultimately committed upon the child
is not the proper test.
– Taggart v. State, 290 S.W.2d 226, 228 (Tex. Crim. App. 1956).
• 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).
IV. Child Pornography
A. “Child Pornography” Defined
• Child pornography is the visual depiction of a child, younger than 18 years of

age at the time the image of the child was made, engaging in sexual conduct.
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– Greer v. State, 999 S.W.2d 484, 487 (Tex. App. 1999).
B. “Possession” Defined
• Possession of child pornography is defined as possessing visual material that

visually depicts a child younger than 18 years of age at the time the image of
the child was made who is engaging in sexual conduct. Tex. Penal Code Ann.
§ 43.26.
C. “Visual Material” 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.
D. Virtual/Simulated Child Pornography
V. Criminal Solicitation of a Minor to Sexual Assault
• To prove the essential elements of criminal solicitation of a minor to sexual assault,

the State has to prove:
(1) a person;
(2) with an intent that sexual assault of a child be committed;
(3) 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 make the minor a party to the commission of
sexual assault of a child.
Tex. Penal Code Ann. § 15.031(a).
– Ex parte Hulin, 31 S.W.3d 754, 760 (Tex. App. 2000).
VI. Deviate Sexual Intercourse
A. “Deviate Sexual Intercourse” Defined
• 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
• The specific intent to propose engaging in deviate sexual intercourse is the

intent needed to be alleged by the State.
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– Gonzalez v. State, 648 S.W.2d 740, 742 (Tex. App. 1983).
VII. Indecency With a Child
A. By Exposure
• An individual is guilty of indecency with a child by exposure if he or she

exposes his or her anus or any part of his or her genitals, knowing the child is
present, with intent to arouse or gratify him- or herself. Tex. Penal Code Ann.
§ 21.11(a)(2).
– Conner v. State,* 2001 Tex. App. LEXIS 7526, 7-8 (2001).
B. By Sexual Contact
• A person commits indecency with a child by sexual contact if he or she

engages in sexual contact with a child or exposes his or her anus or any part of
his or her genitals, knowing the child is present, with intent to arouse or
gratify the sexual desires of any person. Tex. Penal Code Ann. § 21.11(a).
– DeMoss v. State, 12 S.W.3d 553, 559 (Tex. App. 1999).
VIII. Lasciviousness
A. Lewd or Lascivious Conduct
• The term “lewd or lascivious manner” means in a vulgar manner inciting

sexual desire or appetite, and connotes lust, indecency, and sexual indulgence.
– 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).
• 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).
– Slusser v. State, 232 S.W.2d 727, 730 (Tex. Crim. App. 1950).
B. Lewd or Lascivious Exhibition of the Genitals
1. Court of Appeals of Texas, Fifth District, Dallas
• The Court of Appeals of Texas, Fifth District, Dallas, adopted the

federal interpretation of “lewd” or “lascivious” exhibition of genitals
for purposes of Texas Penal Code Annotated § 43.25.
• To determine whether a visual depiction of a child constitutes a lewd

or lascivious exhibition of the genitals, federal courts consider
whether:
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(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.
• When a child is the subject of a photograph, lewdness is not to be

considered as a characteristic of the child, but rather as a characteristic
of the photograph itself.
2. Lascivious Intent
• Lascivious intent can be inferred from the defendant’s conduct,

remarks, and surrounding circumstances.
– Allen v. State, 478 S.W.2d 946, 947 (Tex. Crim. App. 1972).
– Bowles v. State, 550 S.W.2d 84, 85 (Tex. Crim. App. 1977).
– Meredith v. State, 350 S.W.2d 550, 551 (Tex. Crim. App. 1961).
• Intent can be inferred from acts, words, or conduct.

• In a prosecution for indecency with a child, the requisite intent to

arouse or gratify sexual desire can be inferred from the defendant’s
conduct and remarks and from all surrounding circumstances.
– Bassa v. State,* 1998 Tex. App. LEXIS 2804, 4 (1998).
– Conner v. State,* 2001 Tex. App. LEXIS 7526, 8 (2001).
– McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
– Santos v. State, 961 S.W.2d 304, 308 (Tex. App. 1997).
• It is well settled that where intent is the only issue to be determined by

the circumstances a charge on circumstantial evidence is not required.
– Bowles v. State, 550 S.W.2d 84, 86 (Tex. Crim. App. 1977).
– Davis v. State, 516 S.W.2d 157, 161 (Tex. Crim. App. 1974).
– Green v. State, 533 S.W.2d 769, 770-71 (Tex. Crim. App. 1976).
IX. Online Enticement/Solicitation for Travel With Intent to Engage in Sex With a
Minor
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X. Sexual Assault
A. Sexual Assault of a Child
• 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).
B. Aggravated Sexual Assault of a Child
• Aggravated sexual assault of a child occurs when a person intentionally or

knowingly causes the sexual organ of a child to contact or penetrate the
mouth, anus, or sexual organ of another person, including the actor and the
child is a person younger than 14 years of age who is not the spouse of the
actor. Tex. Penal Code Ann. § 22.021.
– Damian v. State, 881 S.W.2d 102, 105 (Tex. App. 1994).
XI. Transporting a Minor for Purposes of Prostitution
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TEXAS
Search and Seizure of Electronic Evidence

I. Search Warrants
A. Probable Cause
1. Sworn Affidavit
• A request for a warrant must be supported by a sworn affidavit that

sets out facts sufficient to support a finding of probable cause. Tex.
Code. Crim. Proc. Ann. art. 18.01(b).
– Burke v. State, 27 S.W.3d 651, 653 (Tex. App. 2000).
– Clement v. State,* 2001 Tex. App. LEXIS 8228, 2-3 (2001).
a. Facts to Be Included
• The affidavit must state facts and circumstances from which a

reasonable person could conclude that the items to be seized
are where the affidavit claims them to be and that the items are
of a criminal nature such that the law authorizes their seizure.
Only a probability, not a prima facie showing of criminal
activity, need be shown.
– Staines v. State, 659 S.W.2d 50, 52 (Tex. App. 1983).
b. Sufficient of Facts and Allegations
• The facts asserted in the affidavit must be sufficient to show

“that property or items constituting evidence to be searched for
or seized are located at or on the particular person, place[,] or
thing to be searched.” Tex. Code. Crim. Proc. Ann. art.
18.01(c)(3).
– Clement v. State,* 2001 Tex. App. LEXIS 8228, 3 (2001).
– Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).
– Wachter v. State, 961 S.W.2d 598, 600 (Tex. App. 1997).
• The allegations are sufficient if they would justify a conclusion

that the items to be searched for are probably on the premises.
– Clement v. State,* 2001 Tex. App. LEXIS 8228, 3-4 (2001).
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– 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
• The data imparted must be truthful in the sense that it is

believed or appropriately accepted by the affiant as true.
– Franks v. Delaware, 438 U.S. 154, 164-65 (1978).
– Layton v. State,* 1997 Tex. App. LEXIS 5257, 9 (1997).
d. Totality of the Circumstances
• Whether the facts mentioned in an affidavit accompanying an

application for a search warrant are adequate to establish
probable cause depends on the totality of the circumstances.
– Layton v. State,* 1997 Tex. App. LEXIS 5257, 9-10 (1997).
– Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996).
e. Information Gathered During the Investigation
• Probable cause can be supported by information gathered by

the affiant or other law-enforcement officers during the course
of an investigation.
– Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990).
– Parker v. State,* 1998 Tex. App. LEXIS 7456, 5 (1998).
f. Use of Hearsay
• Hearsay upon hearsay may be utilized to show probable cause

as long as the underlying circumstances indicate that there is a
substantial basis for crediting the evidence at each level.
– Savery v. State, 782 S.W.2d 321, 326 (Tex. App. 1989).
2. Informants
• When a named informant is a private citizen whose only contact with

law enforcement is a result of having witnessed a criminal act
committed by another, the credibility and reliability of the information
is inherent.
– Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim. App. 1984).
– Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim. App. 1972).
– Morris v. State,* 2001 Tex. App. LEXIS 7694, 16-17 (2001).
– Wood v. State, 573 S.W.2d 207, 216 n.2 (Tex. Crim. App. 1978).
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3. The Defendant’s Burden
• If a defendant establishes by a preponderance of the evidence that a

false statement made knowingly, intentionally, or with reckless
disregard for the truth was included in a probable-cause affidavit, and
if it was material to establish probable cause, the false information
must be excised from the affidavit.
– Clement v. State,* 2001 Tex. App. LEXIS 8228, 7 (2001).
– Franks v. Delaware, 438 U.S. 154, 164-65 (1978).
B. Scope of Search Warrant
• 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.
– 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.
– 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.
– 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).
• 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.
– Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971).
– Moore v. State, 456 S.W.2d 114, 115 (Tex. Crim. App. 1970).
– Wachter v. State, 961 S.W.2d 598, 600 (Tex. App. 1997) (finding that information dating
back two years was stale).
• 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.
– Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. 1979).
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• 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).
II. Anticipatory Warrants
III. Timely Review of Evidence
IV. Methods of Searching
V. Consent Search
• Consent is an exception to the general rule that a warrantless search is per se

unreasonable. The State may show that a warrant was not needed because the
appellant freely and voluntarily consented to the search.
– Woodberry v. State, 856 S.W.2d 453, 456 (Tex. App. 1993).
A. Scope of the Search
• The scope of the search is limited to the consent given.

– DuBose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996).
B. Burden
• The burden of proving an individual freely and voluntarily consented to the

search lies with the State. The burden obligates the State to clearly and
convincingly establish that the consent allegedly given was positive,
unequivocal, and uncoerced.
– LaSalle v. State, 923 S.W.2d 819, 826 (Tex. App. 1996).
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C. Withdrawal of Consent
• Consent and its withdrawal are matter of intent.

• 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).
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).
VI. Plain-View Searches
• Plain-view searches are an exception to the general requirement that a search

conducted without a warrant issued with probable cause is per se unreasonable.
– Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).
– Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
– Simmonds v. State, 51 S.W.3d 445, 447 (Tex. App. 2001).
• If during a lawful search the officer comes across evidence in plain view, the officer
may seize the evidence.
– Texas v. Brown, 460 U.S. 730, 738-39 (1983).
– Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
A. “Plain View” Defined
• For a “plain-view” seizure to be constitutionally permissible, two

requirements must be met. First the officer must have a right to be where he or
she is. Second the incriminating nature of the evidence must be immediately
apparent – there must be probable cause to associate the item with criminal
activity.
– Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
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B. Standard for Seizure of Item in Plain View
• Law-enforcement officers do not have to know or be certain that an item in

plain view is incriminating before seizing it; rather, they must have probable
cause to believe the item is associated with criminal activity.
– State v. Young, 8 S.W.3d 695, 699-700 (Tex. App. 1999).
– Texas v. Brown, 460 U.S. 730, 741-42 (1983).
VII. Employer Searches
VIII. Private Searches by Off-Duty, Law-Enforcement Officers
• A law-enforcement officer is on duty 24 hours a day regardless of the capacity in

which he or she acts; therefore, an off-duty officer working in a private capacity at the
time he or she executes the search is still acting in his or her capacity as a peace
officer to effectuate a legal search.
– DeMoss v. State, 12 S.W.3d 553, 556-57 (Tex. App. 1999).
• 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).
IX. Civilian Searches
X. University-Campus Searches
XI. Computer Technician/Repairperson Discoveries
XII. Photo-Development Discoveries
XIII. Criminal Forfeiture
• Following the final conviction of a person for an offense involving a criminal

instrument or an offense involving an obscene device or material, the court entering
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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.
• No device, sitting passively on the shelf, is a criminal instrument. The

ontological essence of what constitutes a criminal instrument must be
determined by both:
(1) its design or adaptation; and
(2) the facts and circumstances establishing its intended use.
B. “Obscene Device”
• An “obscene device” is a device including a dildo or artificial vagina,

designed or marketed as useful primarily for the stimulation of human genital
organs. Tex. Penal Code Ann. § 43.21(a)(7).
– Janjua v. State, 991 S.W.2d 419, 427 (Tex. App. 1999) (finding that the appellant’s
computer does not fit the definition of an obscene device).
C. “Obscene Material”
• In the context of obscene material, “material” means anything tangible that is

capable of being used or adapted to arouse interest, whether through the
medium of reading, observation, sound, or in any other manner, but does not
include an actual three-dimensional obscene device. Tex. Penal Code Ann. §
43.21(2).
– Janjua v. State, 991 S.W.2d 419, 427 (Tex. App. 1999) (holding that the Legislature
intended “obscene material” to include the tangible medium on which the obscene electronic
coding is stored and displayed, thus computers and floppy disks are tangible and magnetic
coding is not).
XIV. Disciplinary Hearings for Federal and State Officers
XV. Probation and Parolees Rights
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TEXAS
Jurisdiction and Nexus
I. Jurisdictional Nexus
II. Internet Nexus
III. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction
A. State
B. Federal
C. Concurrent
IV. Interstate Possession of Child Pornography
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TEXAS
Discovery and Evidence

Pursuant to Texas Rules of Appellate Procedure,
I. Defense Requests for Copies of Child Pornography
II. Introduction of E-mails into Evidence
A. Hearsay/Authentication Issues
B. Circumstantial Evidence
C. Technical Aspects of Electronic Evidence Regarding Admissibility
III. Text-Only Evidence
A. Introduction into Evidence
B. Relevance
IV. Evidence Obtained from Internet Service Providers
A. Electronic Communications Privacy Act
B. Cable Act
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C. Patriot Act
1. National Trap and Trace Authority
2. State-Court-Judge Jurisdictional Limits
V. Admissibility of Photographs to Prove Sexual Contact
A. To Show Context in Which Offense Occurred
• 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).
C. Other Grounds for Admissibility of Photographs
• 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).
• A photograph is admissible evidence if a verbal description of what is

depicted in the photograph is also admissible.
– Harris v. State, 661 S.W.2d 106, 107 (Tex. Crim. App. 1983).
– Lewis v. State, 676 S.W.2d 136, 140 (Tex. Crim. App. 1984).
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VI. Prior Bad Acts
A. Not Admissible
1. Character Evidence
• Generally, prior crimes or bad acts of a defendant are inadmissible to

prove that he or she has bad character.
– Bryson v. State, 820 S.W.2d 197, 199 (Tex. App. 1991).
2. Propensity Evidence
• Generally, prior crimes or bad acts of a defendant are inadmissible to

prove that he or she has the propensity to commit the offense charged.
• Because extraneous offense evidence carries with it an inherent risk

that a defendant may be convicted because of his or her propensity for
committing crimes generally rather than for the commission of the
charged offense, courts have historically been reluctant to allow
evidence of an individual’s prior bad acts or extraneous offenses.
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 13 (1994).
– Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992).
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).
• Illustrative of the permissible purposes for which extraneous acts may be

admissible are motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or absence of accident. Tex. R. Crim. Evid.
404(b).
– Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App. 1991).
1. Common Scheme
• To establish a common scheme, a sufficient degree of congruity must

exist between the indicated offense and the extraneous offense.
– Mares v. State, 758 S.W.2d 932, 936 (Tex. App. 1988).
– Navarro v. State,* 2000 Tex. App. LEXIS 2688, 7 (2000).
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2. Accident
• It is well established that extraneous offenses are admissible to negate

or rebut the possibility of accident.
– Baldonado v. State, 745 S.W.2d 491, 496 (Tex. App. 1988).
3. Evidence of Prior Criminal Conduct
• Evidence of prior criminal conduct that is collateral to the charge on

which the defendant is being tried is inadmissible.
– Donaldson v. State,* 1988 Tex. App. LEXIS 971, 7 (1988).
– Sanders v. State, 604 S.W.2d 108, 110 (Tex. Crim. App. 1980).
4. Continuous Criminal Episode

• When one offense or transaction is one continuous criminal episode, or
another offense is a part of the case on trial, or closely interwoven
therewith, proof of all the facts is proper.
– Donaldson v. State,* 1988 Tex. App. LEXIS 971, 7 (1988).
– Mitchell v. State, 650 S.W.2d 801, 811 (Tex. Crim. App. 1983).
5. Other Acts Committed by the Defendant Against the Same Child

Victim
• Evidence of other acts committed by the defendant against the same

child victims is also admissible for its bearing on relevant matters,
including the defendant’s state of mind or the previous relationship
between the defendant and the child. Tex. Code Crim. Proc. Ann. art.
38.37, § 2; Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (evidence
may be offered at a punishment hearing “as to any matter the court
deems relevant to sentencing”).
– Grice v. State,* 2000 Tex. App. LEXIS 5838, 2-3 (2000).
– Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App. 1999).
6. To Prove Scienter
• Extraneous acts of misconduct by the accused are admissible to prove

scienter where intent or guilty knowledge is an essential element of the
State’s case and cannot be inferred from the act itself.
– Valenciano v. State, 705 S.W.2d 339, 342 (Tex. App. 1986) (finding extraneous
acts admissible to prove the appellant’s intent to arouse or gratify his sexual
desire).
• Where intent or guilty knowledge is an essential element of the

offense, materiality is established.
– Valenciano v. State, 705 S.W.2d 339, 342 (Tex. App. 1986).
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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
• Evidence of extraneous bad acts to prove the defendant’s character in order to

show conformity therewith if the State extends reasonable notice to the
defendant. Tex. R. Evid. 404(b).
• “Reasonable notice” depends on the facts and circumstances of the case.

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).
– 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).
E. Admissibility at the Guilt-Innocence Phase
• 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).
– Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992).
VII. Proof of Similar Acts
• 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.
– Hill v. State, 852 S.W.2d 769, 770 (Tex. App. 1993).
– Jessup v. State, 853 S.W.2d 141, 143 (Tex. App. 1993).
– 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
• There are two types of “background” evidence:

(1) evidence of other offenses connected with the primary offense, referred to as
“same transaction contextual evidence”; and
(2) general background evidence, referred to as “background contextual
evidence.”
• “Background contextual evidence” is not admissible as an exception to rule 404(b),

but “same transaction contextual evidence” is admissible when such evidence is
necessary to a jury’s understanding of the instant offense.
– Brewer v. State,* 1994 Tex. App. LEXIS 3598, 20-21 (1994).
– Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
• 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.
– Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993).
IX. Presentation of Evidence During the Punishment Phase
• 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.
1. “Privileged Communication” Defined
• Tex. R. Crim. Evid. 503(b) states that privileged communications are

those that are made for the purpose of facilitating the rendition of
professional-legal services.
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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.
3. Crime-Fraud Exception
• The crime-fraud exception to the attorney-client privilege provides an

exception to the privilege for furtherance of crime or fraud. There is no
privilege under Tex. R. Crim. Evid. 503 if the services of the lawyer
were sought or obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should have known to be a
crime or fraud. Tex. R. Crim. Evid. 503(d)(1).
• The crime-fraud exception cannot be satisfied by the mere pendency of

ongoing criminal activity or the mere threat of future activity. The
attorney’s services must be sought or used to further the activity in
question.
– Henderson v. State, 962 S.W.2d 544, 552-53 (Tex. Crim. App. 1997).
4. Application of Privilege to Third Parties
• A third party need show only a reasonable possibility of the

occurrence of a continuing or future crime likely to result in serious
bodily injury or death to compel disclosure of attorney-client
privileged information. The third party must otherwise have legal
authority to compel such production.
– Henderson v. State, 962 S.W.2d 544, 557, 557 n.1 (Tex. Crim. App. 1997).
5. Suppression of Evidence
• Whether evidence must be suppressed under Tex. Code Crim. Proc.

Ann. art. 38.23 depends on whether the privileged communication
leading to that evidence was validly disclosed or compelled pursuant
to strong public-policy interests requiring the attorney-client privilege
to yield.
XI. Witnesses and Testimony
A. Child-Victim Testimony
• The testimony of a child victim alone is sufficient evidence of penetration to

support the conviction.
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B. Expert Testimony
1. Qualifications
• A degree alone is not enough to qualify a purported expert to give an

opinion on every conceivable medical question, legal question, or
psychological question. The inquiry must be into the actual
qualification.
– Roise v. State, 7 S.W.3d 225, 234 (Tex. App. 1999).
• There must be a fit between the subject matter at issue and the expert’s
familiarity therewith.
• 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.
• Research concerning the behavior of offenders who sexually victimize

children is a legitimate field of expertise. As a result of interviews,
case studies, and statistical research, a person may acquire superior
knowledge concerning the behavior of such offenders.
– McColloch v. State,* 1999 Tex. App. LEXIS 4279, 10-11 (1999).
2. Relevance
• In addition to showing the expert witness is qualified, Rule 702

requires the proponent to show that the expert’s testimony is relevant
to the issues in the case and is based on a reliable foundation.
– Roise v. State. 7 S.W.3d 225, 235 (Tex. App. 1999).
3. “Harm-to-Children” Testimony in Possession-of-Child-Pornography

Case
• While the purpose of Texas Penal Code Annotated § 43.26(a) is the

protection of an individual child from exploitation, that purpose does
not authorize “harm-to-children” testimony because the “purpose” is
not an essential element of the offense of possession of child
pornography.
– Roise v. State. 7 S.W.3d 225, 237-38 (Tex. App. 1999).
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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 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. Tex. Code Crim. Proc. Ann. art. 38.072.
– Tarbutton v. State,* 1999 Tex. App. LEXIS 5447, 3 (1999).
2. “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.
– Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).
– Tarbutton v. State,* 1999 Tex. App. LEXIS 5447, 3 (1999).
XII. Extrajudicial Confessions
• An extrajudicial confession is insufficient to support a conviction absent

corroboration.
• 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).
– 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

I. Proving the Age of the Child Depicted in Child Pornography
II. The Defendant’s Knowledge of the Child’s Age
A. Child Pornography
B. Sexual Assault
• In cases involving the sexual assault of a child, such as rape of a child or

indecency with a child, the State is not required to show that the appellant
knew the victim to be younger than 17 years of age.
– Anderson v. State,* 2000 Tex. App. LEXIS 1484, 5 (2000).
– Duron v. State, 915 S.W.2d 920, 922 (Tex. App. 1996).
– Johnson v. State, 967 S.W.2d 848, 849 (Tex. Crim. App. 1998).
– Vasquez v. State, 622 S.W.2d 864, 866 (Tex. Crim. App. 1981).
• Mistake of fact with respect to the victim’s age is not a defense to sexual
assault. Tex. Penal Code Ann. § 22.011(a).
– Jackson v. State, 889 S.W.2d 615, 617 (Tex. App. 1994).
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TEXAS
Multiple Counts

I. What Constitutes an “Item” of Child Pornography?
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.
II. Issues of Double Jeopardy
A. Simultaneous Possession
• Simultaneous possession of multiple “film images” (i.e., a videotape or a

photograph) that involve differing proof facts creates separate units of
prosecution under the possession-of-child-pornography statute.
– Anderson v. State,* 2000 Tex. App. LEXIS 1484, 3-4 (2000).
– Vineyard v. State, 958 S.W.2d 834, 836, 838 (Tex. Crim. App. 1998).
• The simultaneous possession of each item of child pornography constitutes a

separate offense or an allowable unit of prosecution.
– Vineyard v. State, 958 S.W.2d 834, 837 (Tex. Crim. App. 1998).
B. Medium Involved
• It is of no moment whether the items in question are both tapes, both pictures,
or a combination.
C. Multiple Victims
• It is irrelevant whether the pornography depicts more than one victim.

D. Multiple Violations of Same Victim
• 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).
E. Separate Criminal Acts
• 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.
F. Violation of More than One Penal Statute
• 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.
• 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).
G. Greater and Lesser Included Offenses
• When greater-inclusive and lesser-include offenses arise from the same

conduct, they are the same for double-jeopardy purposes.
– Hutchins v. State, 992 S.W.2d 629, 631-33 (Tex. App. 1999).
III. Notice Requirement for a Single Allegation in Indictment
• 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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• 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.
– Worley v. State, 870 S.W.2d 620, 621 (Tex. App. 1994).
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TEXAS
Defenses

I. General
A. Attempted Sexual Performance
1. Factual
• Factual impossibility is not a valid defense. Factual impossibility

exists when, due to a physical or factual condition unknown to the
actor (i.e., a law-enforcement agent pretending to be a 13-year-old
girl), the attempted crime could not be completed.
2. Legal
• Legal impossibility is a valid defense. Legal impossibility exists where

the act, if completed, would not be a crime, even though what the actor
intends to accomplish would be a crime.
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
• It is an affirmative defense to possession of child pornography if the appellant,

in good faith, reasonably believed that the child engaged in sexual conduct
was 18 years of age or older. Tex. Penal. Code Ann. § 43.26(c).
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II. Specific
A. Age
B. Consent
• Consent is irrelevant to a prosecution involving sexually assaulting a child.

– Pawson v. State, 865 S.W.2d 36, 36 (Tex. Crim. App. 1993).
C. Diminished Capacity
1. Addiction to the Internet
2. Insanity
D. Entrapment
• It is a defense to prosecution that the actor engaged in the conduct charged

because he or she was induced to do so by a law-enforcement agent using
persuasion or other means likely to cause persons to commit the offense.
Conduct merely affording a person an opportunity to commit an offense does
not constitute entrapment. Tex. Penal Code Ann. § 8.06(a).
– Scott v. State, 868 S.W.2d 430, 431 (Tex. App. 1994).
• The Texas entrapment statute establishes an objective standard that ignores

the particular defendant’s predisposition to commit the offense.
– Scott v. State, 868 S.W.2d 430, 431 (Tex. App. 1994).
E. First Amendment
1. In-Home Possession
• It is no defense to a charge of possession of child pornography that the

child pornography was located in the charged individual’s home.
2. Nude-Art Defense
• There is no nude-art defense to the offense of possession of child

pornography. Tex. Penal Code Ann. § 43.26.
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F. Impossibility
1. Factual
• Factual impossibility is not a valid defense. Factual impossibility

exists when, due to a physical or factual condition unknown to the
actor (i.e., a law-enforcement agent pretending to be a 13-year-old
girl), the attempted crime could not be completed.
2. Legal
• Legal impossibility is a valid defense. Legal impossibility exists where

the act, if completed, would not be a crime, even though what the actor
intends to accomplish would be a crime.
G. Manufacturing Jurisdiction
H. Marriage
• It is an affirmative defense to a prosecution if the defendant was the spouse of

the child at the time of the offense. Tex. Penal Code. Ann. § 43.25(f).
– Stone v. Simms,* 2001 Tex. App. LEXIS 717, 14 (2001).
I. Mistake of Fact: Victim’s Age
• Mistake of fact with respect to the victim’s age is not a defense to sexual
assault. Tex. Penal Code Ann. § 22.011(a).
– Jackson v. State, 889 S.W.2d 615, 617 (Tex. App. 1994).
J. Outrageous Conduct
K. Promiscuity
• Before September 1, 1994, promiscuity was considered a defense to sexual

assault of a child 14 years of age or older.
– Riley v. State, 953 S.W.2d 354, 357 (Tex. App. 1997).
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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
D. Pattern of Activity for Sexual Exploitation
E. Sadistic, Masochistic, or Violent Material
F. Use of Computers
II. Probation for Aggravated Sexual Assault
• 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).
III. Multiple Convictions
• 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

I. Supervised Release Generally
• Because a community-supervision revocation proceeding is neither a criminal nor a

civil trial, but rather, is an administrative hearing, procedural and evidentiary
requirements are not enforced as strictly as they would be in a criminal trial.
– Bradley v. State, 564 S.W.2d 727, 729 (Tex. Crim. App. 1978).
– Hampton v. State,* 2000 Tex. App. LEXIS 4721, 2 (2000).
II. Conditions for Supervised Release (a.k.a. Community Supervision)
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).
• One condition of probation required the defendant-appellant to participate in a

treatment program for sex offenders. In order to advance to the next level of
treatment, the defendant-appellant was obligated to submit to a polygraph
examination.
B. The State’s Burden for Revoking Supervised Release
• The State must prove by a preponderance of the evidence that a defendant

violated the conditions of his or her community supervision.
– Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984).
– Hampton v. State,* 2000 Tex. App. LEXIS 4721, 2-3 (2000).
• Proof of any one violation will support an order revoking community

supervision.
– Hampton v. State,* 2000 Tex. App. LEXIS 4721, 4-5 (2000) (finding that the appellant’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).
– Reynolds v. State, 746 S.W.2d 536, 537 (Tex. App. 1988).
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III. Deferred Adjudication
• Deferred adjudication is a type of community supervision, the procedures for

which are set out in Code of Criminal Procedure article 42.12.
– Davis v. State, 968 S.W.2d 368, 369 (Tex. Crim. App. 1998).
• 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).
• Deferred adjudication may not be granted if the offense is indecency with a

child, sexual assault, aggravated sexual assault, sexual performance by a child,
possession or promotion of child pornography, prohibited sexual conduct, or
aggravated kidnapping with intent to violate or abuse the victim sexually.
– Davis v. State, 968 S.W.2d 368, 369 n.1 (Tex. Crim. App. 1998).
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TEXAS

B. Attempted Sexual Performance

1. “Sexual Performance” Defined

C. Child Enticement (a.k.a. Enticing a Minor from the Custody of a Parent)

1. “Child Pornography” Defined

E. Criminal Solicitation of a Minor to Sexual Assault

F. Deviate Sexual Intercourse

1. “Deviate Sexual Intercourse” Defined

G. Indecency With a Child

1. Lewd or Lascivious Conduct

I. Online Enticement/Solicitation for Travel With Intent to Engage in Sex With

1. Sexual Assault of a Child

K. Transporting a Minor for Purposes of Prostitution

II. SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE

C. Timely Review of Evidence

1. Scope of the Search

1. “Plain View” Defined

H. Private Searches by Off-Duty, Law-Enforcement Officers

K. Computer Technician/Repairperson Discoveries

N. Disciplinary Hearings for Federal and State Officers

O. Probation and Parolees Rights

III. JURISDICTION AND NEXUS

C. State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction

D. Interstate Possession of Child Pornography

A. Defense Requests for Copies of Child Pornography

B. Introduction of E-mails into Evidence

1. Introduction into Evidence

D. Evidence Obtained from Internet Service Providers

1. Electronic Communications Privacy Act

E. Admissibility of Photographs to Prove Sexual Contact

1. To Show Context in Which Offense Occurred

F. Prior Bad Acts

I. Presentation of Evidence During the Punishment Phase

K. Witnesses and Testimony

V. AGE OF CHILD VICTIM

A. Proving the Age of the Child Depicted in Child Pornography

B. The Defendant’s Knowledge of the Child’s Age

VI. MULTIPLE COUNTS

A. What Constitutes an “Item” of Child Pornography?

B. Issues of Double Jeopardy

C. Notice Requirement for a Single Allegation in Indictment

1. Attempted Sexual Performance

VIII. SENTENCING ISSUES

B. Probation for Aggravated Sexual Assault

IX. SUPERVISED RELEASE

A. Supervised Release Generally

B. Conditions for Supervised Release (a.k.a. Community Supervision)

An asterisk (*) next to a case name indicates an unpublished opinion.

I. United States Supreme Court

• Franks v. Delaware, 438 U.S. 154 (1978)

II. Supreme Court of Texas

III. Court of Criminal Appeals of Texas

• Allen v. State, 478 S.W.2d 946 (Tex. Crim. App. 1972)

IV. Court of Civil Appeals of Texas

1. First District, Houston

• Conner v. State,* 2001 Tex. App. LEXIS 7526 (2001)

2. Second District, Fort Worth

• Hill v. State, 852 S.W.2d 769 (Tex. App. 1993)

3. Third District, Austin

• Bassa v. State,* 1998 Tex. App. LEXIS 2804 (1998)

4. Fourth District, San Antonio

5. Fifth District, Dallas

• Alexander v. State, 906 S.W.2d 107 (Tex. App. 1995)

6. Sixth District, Texarkana