Child Pornography
If you are accused of the possession child pornography under either state or federal law, it is important to recognize the seriousness of the charges. Seek out the advice of an experienced criminal defense attorney before making any statements to any law enforcement officer.
Houston Child Pornography Defense Lawyer
Matt Horak defends people facing charges of possessing, distributing or producing explicit materials involving minors. If you face these serious charges, contact an experienced Houston child pornography lawyer. Call Horak Law at (713) 225-8000 or toll-free at [phone-tollfree] to set up a consultation.
Matt Horak represents people accused of sex crimes throughout the Houston area, including in Harris and Montgomery County and in Baytown, Tomball, Kingwood, Cypress, and Pasadena.
Overview of Child Pornography Law in Harris County
- Child Pornography Charges Under Texas Law
- Search Warrants in Child Pornography Cases
- Possession of Child Pornography
- Determining the Child’s Age
- Related Offenses Involving Children
Child Pornography Charges Under Texas Law
Each count of child pornography is generally charged as a third-degree felony. The penalties for a third-degree felony are a sentencing range of two to ten-year range as set out in section 12.34(a) of the Texas Penal Code. See Tex. Penal Code Ann. § 12.34 (West 2011).
Texas Penal Code Ann. § 43.26(a), (d) defines the possession of child pornography and states that it is a third-degree felony. Additionally, under the Texas Penal Code, the trial court is permitted to order the sentences to run consecutively. See Tex. Penal Code Ann. § 3.03. See Reynolds v. State, 04-13-00176-CR, 2014 WL 1302548 (Tex. App. Apr. 2, 2014).
Under Texas law, a person commits the offense of possession of child pornography if:
- the person knowingly or intentionally possesses 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; and
- the person knows that the material depicts the child as described by Subdivision (1).
TEX. PENAL CODE ANN. § 43.26(a).
Search Warrants in Child Pornography Cases
In many of these cases, the police will learn through n investigation that a certain household is using an internet connection to send or receive child pornography. The police will then obtain a search warrant to search the house and seize computers or any images found.
Many of these officers often work on a special task force for Internet Crimes Against Children. These officers often have extensive experienced in investigating sexual crimes against children. When obtaining the search warrants, the officers often alleged the following types of facts to support the warrant:
- Peer-to-peer networks are the most pervasive method of the Internet distribution of child pornography.
- These networks enable individual users, through the use of a variety of software, to connect through each computer’s unique Internet Protocol (IP) address and share image files within the network.
- Specialized software allows investigators to compare the digital hash values of files shared by network users with the digital hash values of known child pornography provided by the National Center for Missing and Exploited Children, which acts as a clearinghouse for child pornography images and videos.
- Comparison of hash values for the shared files with the hash values for the confirmed child pornography files provides an extremely accurate method for identifying individuals who possess and own child pornography.
- The software investigation method also allows the investigator to narrow his search to confirmed images of child pornography possessed or shared within a particular geographic location.
In these search warrants, the officer will then allege facts specifically related to the case including the IP address that was advertising files for sharing on a peer-to-peer network. The files contained images depicted child pornography.
The officers will then conduct the search at the suspect’s home with the goal of conducting an interrogation of the suspect and getting a confession.
Possession of Child Pornography
Possession is defined by the Penal Code as “actual care, custody, control, or management.” Id. § 1.07(a)(39). In child pornography cases, one court explained the issue of possession this way:
When contraband is not found on a person or is not in a location that is under the exclusive control of a person, mere presence at the location where the contraband is found is insufficient by itself to establish actual care, custody, or control of the contraband. However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g.“links”), may be sufficient to establish possession beyond a reasonable doubt.
Evidence that links the defendant to the contraband suffices for proof that he possessed it knowingly. It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial. This “affirmative links” rule protects the innocent bystander from conviction merely because of his or her fortuitous proximity to someone else’s contraband.
Wilson v. State, 419 S.W.3d 582, 596 (Tex. App. 2013)(citations omitted).
Determining the Child’s Age
In many of these cases, there is little evidence to show the actual ages of the person depicted in the image or that the viewer knew the person depicted was under eighteen years of age. The courts have found that the images themselves constitute evidence from which a rational juror could have concluded beyond a reasonable doubt that the images depicted children less than eighteen years of age. The Texas Penal Code does not require expert testimony to determine a child’s age in a possession of child pornography case.
Texas Penal Code Section 43.25(g) provides that when it becomes necessary for purposes of section 43.26 to determine whether a child who participated in sexual conduct was younger than eighteen years of age, the court or jury may make such a determination by any of the following methods:
- personal inspection of the child;
- inspection of the photograph or motion picture that shows the child engaging in the sexual performance;
- oral testimony by a witness to the sexual performance as to the age of the child based on the child’s appearance at the time;
- expert medical testimony based on the appearance of the child engaging in the sexual performance; or
- any other method authorized by law or by the rules of evidence at common law.
TEX. PENAL CODE ANN. § 43.25(g) (West 2011) (emphasis added).
Related Offenses Involving Children
Regarding indecency with a child by contact, the penal code provides, “A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person … engages in sexual contact with the child or causes the child to engage in sexual contact.” Id. § 21.11(a)(1). The offense requires the specific intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c). Specific intent can be inferred from the defendant’s conduct, his remarks, and all surrounding circumstances.
- Continuous Sexual Assault of a Young Child
To establish continuous sexual abuse of a young child, the State must prove that (1) a person (2) who is seventeen or older (3) has committed a series of two or more acts of sexual abuse (4) during a period of thirty or more days, and (5) each time the victim was younger than fourteen. TEX. PENAL CODE ANN. § 21.02(b). The underlying acts here supporting the allegations of this offense involve either indecency with a child, if the actor committed the offense in a manner other than by touching, or aggravated sexual assault of a child. See id. § 21.11(a); id. § 22.021(a)(1) & (2)(B).
- Aggravated Sexual Assault of a Child
The elements of aggravated sexual assault of a child applicable here are: a person commits an offense if the person (1) intentionally or knowingly (2) causes the penetration of the child’s sexual organ by any means or causes the sexual organ of the child to contact the sexual organ of another person, including the actor, and (3) the child is under the age of fourteen. TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i) & (iii), 22.021(a)(2)(B).
Horak Law – A Child Pornography Defense Attorney
Contact Horak Law to discuss your case. Matt Horak is a Houston criminal defense lawyer who represents clients charged with child pornography in state and federal court throughout the greater Houston area including all of Harris County and the surrounding areas including The Woodland and Montgomery County. Texas.
Call Horak Law locally at (713) 225-8000 or toll-free at [phone-tollfree] to take advantage of a confidential consultation.
