Child Pornography Lawyer

Serving Plano, Dallas, McKinney, Frisco, Allen, and Surrounding Areas

False allegations of child pornography in Texas can occur in a number of situations. For example, if you were set up or blamed for viewing or possessing child porn, if the image didn’t actually show an underaged child, or if you accidentally viewed child porn while browsing the Internet on a computer or cell phone, you could be falsely accused of committing this serious criminal offense.

Unfortunately, false accusations often lead to convictions and severe criminal penalties. If you or someone you love has been charged with the possession, promotion or distribution of pornography involving minors, turn to Dunham & Jones. An experienced lawyer at our firm can help you surpass your allegations. Contact us today to discuss your rights and legal options during a free consultation.

What Is Considered Child Pornography in Texas?

Child pornography is commonly defined as any visual depiction of sexually explicit conduct that involves a child. Visual depictions can include any of the following:

• A video,
• A picture,
• A photo,
• A movie,
• A film,
• An image,
• A computer-generated image,
• A computer-generated graphic, and/or
• Any other recording, broadcast or transmission through electronic means.

Allegations of child pornography must be proven by the state prosecutor beyond a reasonable doubt in order to convict the alleged offender of the offense. This can be a very difficult burden to meet and any doubt in the mind of the judge or jury at trial can result in an acquittal at trial of the charges you are facing. Being prepared for trial also means that the prosecutor suddenly becomes more willing to drastically reduce the charges or negotiate a more favorable plea bargain. 

An experienced child pornography lawyer can help identify evidence or put on witnesses that that would raise doubts about the prosecutor’s case. From the instant you contact our legal team, we immediately begin investigating the circumstances surrounding the false accusations that have been made against you and work on the best legal defense for your particular situation. Our attorneys are knowledgeable in all areas of Texas criminal statutes and will make every effort to help you achieve the most desirable case outcome.

Improper Photography or Recording of a Child

Texas law defines a minor, child or juvenile as anyone under the age of 18, according to the Texas Penal Code § 43.24(a)(1). An individual can be charged with improper photography or visual recording of a child under Texas Penal Code § 21.15 if they photograph, videotape or otherwise record, broadcast or transmit through any electronic means a visual image of a child at a location without the videotaped minor’s consent and with the intent to arouse or gratify any person. This offense must occur at any location aside from a bathroom or private dressing room, and is generally punishable as a state jail felony.

An individual can also be charged with this offense if they photograph, videotape, or otherwise record, broadcast or transmit through any electronic means a visual image of a child at a bathroom or private dressing room:

• Without the child’s consent, and
• With the intent to invade the child’s privacy, or arouse or gratify the sexual desires of any person.

Charges for Sale, Distribution or Display of Harmful Material to a Minor

An individual can be charged with the sale, distribution or display of harmful materials to a minor under Texas Penal Code § 43.24 if they:

• Sell, distribute, exhibit or possess for sale, distribute or exhibit to a minor harmful material knowing the minor is underage and with knowledge the material is harmful;
• Display harmful material and is reckless about whether a minor is present that will be offended or alarmed by the display with knowledge the material is harmful; or
• Hires, employs or uses a minor to do or accomplish or assist in doing or accomplishing any of the acts prohibited above with knowledge the material is harmful.

This offense is generally punishable as a Class A misdemeanor or a felony of the third degree.

The term “harmful material” is defined under Texas law as any material that has a dominant theme that:

• Appeals to the prurient interest of a minor through sex, nudity or excretion;
• Is patently offensive to most adults with respect to what is suitable for minors; and
• Is utterly without redeeming social value for minors.

Sexual Performance of a Child

An individual can be charged with sexual performance of a child under the Texas Penal Code § 43.25 if they employ, authorize or induce a child under the age of 18 to engage in sexual conduct or a sexual performance knowing the character and content of the conduct or performance. This offense is generally punishable as a felony of the second degree. However, if the alleged victim was under the age of 14, the offense is punishable as a felony of the first degree.

An individual can also be charged with this offense if they produce, direct or promote a performance that includes sexual conduct of a child under the age of 18 while knowing the character and content of the material. This offense is generally punishable as felony of the third degree. However, if the alleged victim is under the age of 14, the offense is punishable as a felony of the second degree.

Possession or Promotion of Child Pornography 

An individual can be charged with possession of child porn under the Texas Penal Code § 43.26 if they knowingly or intentionally possess visual material that depicts a child under the age of 18 engaging in sexual conduct and the alleged offender knows the material depicted a child under the age of 18. This charge for possession of child porn is generally punishable as a felony of the third degree.

An individual can be charged with possession or promotion of child pornography if they knowingly or intentionally promote or possess with intent to promote material that visually depicts a child under the age of 18 engaging in sexual conduct and they know the material depicts a child under the age of 18. If anyone possesses material that contains six or more identical depictions of a child under the age 18 engaging in sexual conduct, it’s presumed they are possessing pornographic material with the intent to promote. This offense is generally punishable as a felony of the second degree.

Possession of Child Pornography under Penal Code Section 43.26(a) can be charged as a third-degree felony. The elements of the possession of child pornography under Penal Code Section 43.26(a) include:

• The defendant acted intentionally or knowingly
• The defendant possessed or accessed with intent to view visual material(s)
• The materials visually depicted a child younger than 18 years of age at the time the image of the child was made
• The materials visually depicted the child engaged in sexual conduct

If applicable, the criminal charge can be for a person who engages a child in sexual conduct as a victim of trafficking, and the person knows that the material depicts the child was engaging in sexual conduct.

Potential Penalties for Child Porn and Related Crimes

If you have been falsely accused of possession or sale of child pornography, it’s important consult an experienced attorney as soon as you are aware of the allegations. A conviction can result in any of the following repercussions or penalties:

• Sex offender registration requirements;
• Ineligibility to vote or hold public office;
• An inability to own or possess a firearm;
• Ineligibility to apply for certain jobs or occupations;
• A refusal to be admitted into certain educational programs; and/or
• Personal humiliations or public embarrassment.

The punishment also depends on the classification of the offense:

• A conviction for a Class A misdemeanor child porn offense can result in a jail sentence up to one year and/or a fine up to $4,000.
• A conviction for a state jail felony child pornography offense can result in a jail sentence ranging from 180 days to two years and/or a fine up to $10,000.
• A conviction for a felony of the third degree child porn offense can result in a prison sentence ranging from two to ten years and/or a fine up to $10,000.
• A conviction for a felony of the second degree child pornography offense can result in prison term ranging from two to 20 years and/or a fine not more than $10,000.
• A conviction for a felony of the first degree child porn offense can result in a prison term ranging from five to 99 years or life imprisonment and/or a fine up to $10,000.

Definitions under the Texas Statute for Child Pornography Possession

The term “child” is defined as a person younger than 18 years of age.

Under the child pornography statute, the term “sexual conduct” is defined to include;

• Sexual contact
• Actual or simulated sexual intercourse
• Deviate sexual intercourse
• Sexual bestiality
• Masturbation
• Sado-masochistic abuse, or
• Lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola

The term “visual material” is defined to include any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide, or any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

Defenses to Child Pornography Possession under Texas Penal Code Section 43.26(a)

Defenses to child pornography charges often focus on whether the person accused acted intentionally, or with intent, with respect to the nature of his or her conduct, or a result of his or her conduct. At trial, the prosecutor will attempt to prove that it was the defendant’s conscious objective or desire to engage in the conduct or cause the result.

The prosecutor must prove in these cases that the defendant acted knowingly, or with knowledge, with respect to the nature of his or her conduct or to circumstances surrounding his or her conduct when he or she is aware of the nature of his or her conduct or that the circumstances exist. Texas law provides that a person acts knowingly or with knowledge with respect to the possession of child pornography when he or she is aware that his or her conduct is reasonably certain to cause the result.

In child pornography possession cases in Texas, the prosecutor can prosecute a defendant for possession of child pornography for each item of pornography the defendant allegedly possessed, even if all the items are seized from one search. (See Vineyard v. State, 958 S.W.2d 834 (Tex.Crim.App. 1998)).

The child pornography statute in Texas did not unconstitutionally place the burden on the defendant to show that the parties depicted were not children. Instead, the courts have found that the statute merely permitted the defendant to counter the State’s evidence with evidence that the child depicted was 18 years or older. (See Webb v. State, 109 S.W.3d 580 (Tex.App.-Fort Worth 2003, no pet.)).

Affirmative Defenses to Child Pornography Possession

Texas law provides for several different affirmative defenses to prosecutions for child pornography including:

• The defendant was the spouse of the child at the time of the offense
• The conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose, or
• The defendant was not more than two years older than the child

If the jury at trial finds that the defendant proved one of the affirmative defenses by a preponderance of the evidence, then the jury should return a “not guilty’ verdict at trial.

Promotion of Child Pornography

Texas law provides for several presumptions that help the prosecutor prove charges for promoting child pornography under the Texas Penal Code, Section 43.26. A criminal defense attorney will often fight to convince the judge that the presumption should not be read to the jury because it does not apply under the particular facts of the case.

One presumption under Texas law that is often requested by the prosecutor is that “a person who possesses visual material that contains six or more identical visual depictions of a child that would constitute an offense under this section is presumed to possess the material with the intent to promote the material.” Because this and other assumptions can lead to severe criminal penalties and lifelong registry as a sex offender, it’s crucial to retain legal counsel immediately.

At trial, the elements of promotion of child pornography must be proven by the prosecution beyond all reasonable doubt include:

• The defendant intentionally or knowingly promotes or possesses with intent to promote visual material
• The material visually depicts a child younger than 18 years of age at the time the image of the child was made
• The child in the image is engaged in sexual conduct, and
• The person knows that the material depicts the child engaging in sexual conduct

Definitions under the Promotion of a Child Porn Statutes in Texas

• Under the statute in Texas for promotion of child pornography, the term “child” means a person younger than 18 years of age.
• The term “promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of these actions.
• The term “sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.
• Under Texas law, the definition of “visual material” is any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide, or any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other method.

Defenses to Child Pornography Promotion 

Under Texas Penal Code, Section 43.26(h), it’s a defense to prosecution for the promotion of child pornography if the defendant is a law enforcement officer or school administrator who possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of transmission of child pornography and allowed law enforcement or other school administrative personnel to possess or access the material only as appropriate based upon the allegation described and then took reasonable steps to destroy the material within an appropriate period.

If the defendant establishes the defense, then at trial, the jury would be instructed that it should return a “not guilty” verdict if the affirmative defense for a law enforcement officer or school administrator is proven by a preponderance of the evidence.

Failure to Report Child Pornography

When the Texas Legislature was considering creating the current law for the failure to report child pornography under Texas Business and Commerce Code Section 109.003, the sponsor’s statement of intent provided:

Due to recent technological advancements, information has become readily accessible and available via the Internet. However, this increase in access to information has also led to increased access to child pornography, which is illegal under both state and federal law.

Cases of child exploitation often go unreported or unprosecuted due to the anonymous nature of the Internet and computer hard drives. While federal, state, and local agencies work to combat child pornography through underground sting operations and other aggressive measures and are effectively identifying, catching, and prosecuting sexual predators, child pornography discovered by computer service technicians often goes unreported, partly due to the fact that current Texas law does not require a computer service technician to report such a discovery.

Interested parties contend that several other states have enacted laws requiring computer or information technology technicians to report child pornography found on personal computers during the normal course of repair. H.B. 2539 amends current law relating to requiring computer technicians to report images of child pornography and provides a criminal penalty.

Penalties for Failing to Report Child Pornography in Texas

Texas Business and Commerce Code, Section 109.003, requires a Computer Technicians to report child pornography. A violation of this statute can be prosecuted as a Class B Misdemeanor. it’s a defense to prosecution that the defendant did not report the discovery of an image of child pornography because the child in the image appeared to be at least 18 years of age. In many of these cases, the computer technician will assert that it did NOT appear that the image was child pornography, which is a defense to the charge.

The elements for the offense of failure to report child pornography include:

• The defendant is a computer technician, and 
• In the course and scope of employment or business, the defendant intentionally failed to report an image that was or appeared to be child pornography.

Texas law provides that any computer technician who, in the course and scope of employment or business, views an image on a computer that is or appears to be child pornography must immediately report the discovery of the image to a local or state law enforcement agency or the Cyber Tipline at the National Center for Missing and Exploited Children. The report by the computer technician must include the name and address of the owner or person claiming a right to possession of the computer, if known, and as permitted by federal law.

Important Terms

• The definition of “computer technician” means an individual who in the course and scope of employment or business installs, repairs, or otherwise services a computer for a fee.
• The term “child pornography” is defined to mean an image of a child engaging in sexual conduct or sexual performance.

Contact Stuckle & Associates Today for a Free Consultation 

If you have been accused of committing a child pornography offense in Texas, contact Dunham & Jones today. We are ready to form a defensive strategy that best suits your individual needs. We can help you through every step of the process ahead. With determination and hard work, we can fight to ensure that your rights and future are protected. Trust our experience and dedicated knowledge of this field. Call us at (972) 423-4405 to schedule your free consultation regarding your child pornography charges. We can begin your defense today.

Additional Resources

• Bill Analysis for the Failure to Report Child Porn by a Computer Technician — Read the Senate Research Center bill analysis from May 13, 2013 authored by the sponsor of the legislation to make it a crime not to report what appears to be child pornography found by a computer technician. Find out the policy reasons behind the legislation.
• Sec 109.001 Business and Commerce Code — Read the statutory language for the crime of the Failure to Report Child Pornography when discovered by a computer technician.
• Texas Business and Commerce Code Section 109.003 – The statute prohibits a computer technician, except in a case of willful or wanton misconduct, from being held liable in a civil action for reporting or failing to report the discovery of an image. The statute also prohibits a telecommunications provider, commercial mobile service provider, or information service provider from being held liable under this chapter for the failure to report child pornography that is transmitted or stored by a user of the service.