Aggravated Sexual Assault Involving Minors- Houston Attorney

Texas Penal Code Sec. 22.011 defines sexual assault in a manner which covers a wide range of incidents, most of which involve an allegation that the accused caused penetration by a sexual organ without the victim's effective consent. Sexual assault can include vaginal, anal or oral sex, and the accused can be a male or female. Further, the statute sets the minimum legal age of consent at 17. Charges of sexual assault of a child are considered aggravated if the child is under 14 years of age, if a deadly weapon is used, if a "date rape drug" known as rohypnol or ketamine was used with the intent of making the offense easier to commit, or if serious bodily injury is threatened.

A separate crime, Indecency with a Child, is defined by Texas Penal Code Sec. 21.11 as either engaging in sexual contact (defined as touching of the genitals with intent to arouse or gratify someone sexually) with a child, exposure of one's anus or genitals to a child under 17, or causing the child to expose his or her anus or genitals to the actor with the intent to arouse or gratify someone sexually. Indecency with a Child by Contact in most circumstances is a Second Degree Felony (2 to 20 years), and Indecency with a Child by Exposure is a Third Degree Felony (2 to 10 years).

Criminal Statutory Rape, as defined in Texas Penal Code Section 22.011(a)(2) is another unique form of rape charge in that its victims consent to the sexual acts, although they are not of age to do so with someone over the age of 19. Like many states attempting to mitigate the rigidity of statutory rape laws, the state of Texas has a “three year rule,” which states that consensual sexual acts between two people who are over the age of 14 and are within three years of age of another, do not comprise criminal statutory rape. 
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage, or that the victim lied about their age and a reasonable person would have believed them; but other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas.

In addition to these criminal penalties, Texas law requires those who have been convicted of certain sex offenses and other crimes to register as a sex offender upon release from state supervision. Most of the information that convicted sex offenders are required to provide is made available to the public in the Sex Offender Database. This database is accessible on-line from the Texas Department of Public Safety's Web site. Only certain information, like the offender's social security and driver's license numbers and any information that could identify the victim, are kept confidential.
Additionally, local law enforcement may contact schools, print notices in the local newspaper or send out postcard notifications to alert members of the community of the presence of certain high-risk offenders in their neighborhoods.


The false accusation of rape is the intentional reporting of a rape where no rape has occurred. It is difficult to assess the prevalence of false accusations because they are often conflated with non-prosecuted cases under the designation "unfounded." However, in the United States, the FBI Uniform Crime Report in 1996 and the United States Department of Justice in 1997 stated 8% of rape accusations in the United States were regarded as unfounded or false. 
David Lisak's study, published in 2010 in Violence Against Women, classified as false 8 out of the 136 (5.9%) reported rapes at an American university over a ten-year period. Applying IACP guidelines, a case was classified as a false report if there was evidence that a thorough investigation was pursued and that the investigation had yielded evidence that the reported sexual assault had in fact not occurred. 

It is extremely difficult to assess the prevalence of false accusations, and there are many reasons other than falsity that can result in a rape case being closed as unfounded or unproven. However, while researchers and prosecutors do not agree on the exact percentage of false allegations they generally agree on a range of 2% to 10%. Although these percentages may not seem high, a false accusation of sexual assault immediately changes the life of the accused,  jeopardizing careers, marriages, and reputations. More than any other type of crime, an accusation of sexual wrongdoing destroys a person’s life.
In some instances, a person makes false allegations because of jealously, or in an attempt to seek revenge on someone who did not reciprocate their feelings. Accusations of sexual misconduct also frequently come up in divorce or child custody cases, student-teacher relationships, employer-employee relationships and in any other context where the accuser may have a motive to lie.
Even if the defendant is innocent, it often requires an entire trial in order for this determination to be made, during which the defendant may well be ostracized or publicly ridiculed by the media.

Public hysteria regarding child molestation has changed the rules of the criminal justice system; physical and sexual abuse cases involving minors must be defended in an entirely different manner than the normal criminal case. In many cases, the child accuser does not have to appear in court and face the accused; instead, the state can offer the child's testimony through a video tape made by agents of the prosecution. "Hearsay" evidence may be admitted in a case, and there is often no physical evidence presented. The state does not have to prove guilt, but simply make the accusation; Once the accusation is made, the defendant must prove innocence beyond a reasonable doubt. Failing that, the jury will very often not take a chance the defendant may be a child molester, and will convict.

No other area in Criminal Law creates public outrage the way sex crimes do. The mere allegation of a sexual offense is sufficient to destroy reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have seen such a high percentage of convictions overturned because the person was actually innocent and subsequently cleared by DNA or witness recantation. A false allegation case can only be defended successfully by an attorney with significant trial experience and specifically with child sexual assault cases.

If you have been charged with sexual assault contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Sexual Assault Involving Adults- Houston Attorney

Under Texas state law sexual assault, commonly known as rape, is defined in Texas Penal Code §22.011. Sexual assault covers a wide range of incidents, most of which involve an allegation that the accused caused penetration by a sexual organ without the victim's effective consent. Sexual assault can include vaginal, anal or oral sex, and the accused can be a male or female.
In cases of sexual assault involving two or more adults in which deadly weapons are not used, the crime is typically considered a Second Degree felony and carries a potential sentence of 2-20 years imprisonment, plus a $10,000 fine and lifetime registration as a sex offender. It is also a “3g” offense, which means a person convicted of the offense and sentenced to prison must serve at least 50% of the sentence before being eligible for parole. It also means that a judge may not place a person so convicted on ordinary community supervision (however, the judge may place the person on deferred adjudication).

When the alleged assault includes certain factors, the charge may be elevated to the more severe offense of aggravated sexual assault. Aggravated Sexual Assault is described independently in the Texas Penal Code, and it shares elements of both the Aggravated Assault offense and the Sexual Assault offense.
The crime of Sexual Assault can be elevated to Aggravated Sexual Assault in any of these cases:

• The victim is under the age of 17, an elderly individual or a disabled individual;
• The defendant causes or acts with another person who causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
• The defendant threatens the victim or any person with death, serious bodily injury, or kidnapping;
• The defendant uses or exhibits a deadly weapon;
• The defendant administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense.

Conviction of aggravated sexual assault can lead to a prison sentence of 5 to 99 years, or even life in prison. Additionally, if the victim was younger than six or was younger than 14 and was subjected to actual violence, the perpetrator could face a minimum of 25 years in prison. Again, registry as a sex offender is mandatory.

The most apparent issue in sexual assault cases involving adults is that of consent. There are several situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law;

•  The victim was compelled to submit or participate by the use or threat of physical force or violence against the them or another person;
• At the time of the sexual assault the defendant knew that the victim was incapable either of appraising the nature of the act, or of resisting it as a result of mental disease or defect;
•  The defendant knew that the other person was unaware that the sexual assault was occurring, or intentionally impaired the other person’s power to appraise or control the their conduct by administering any substance without the other person’s knowledge; 
• The defendant is a public servant, mental health services provider, clergyman or a health care services provider who coerces or exploits the victim’s emotional dependency on them in order to make them submit or participate;
• The defendant is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other.

Even if there is no physical evidence to support an accusation of sexual assault a charge can still be filed. In many cases the evidence boils down to “he said, she said”, and unfortunately false allegations do occasionally arise; for instance as a result of divorce, child custody battles, conflicts between a child and a step-parent; or in relationships involving an unstable person. Sexual assault charges are sometimes made after consensual sex, for one reason or another. Tragically, children are also sometimes coerced or manipulated into making false charges of sexual assault.

 No other area in Criminal Law creates public outrage the way sex crimes do. The mere allegation of a sexual offense is sufficient to destroy reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have seen such a high percentage of convictions overturned because the person was actually innocent and subsequently cleared by DNA or witness recantation.

If you have been charged with sexual assault, possession of child pornography or prostitution related crimes you need an experienced criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Law Enforcement: Profiling and Vehicle Searches

One of the exceptions to the Fourth Amendment's warrant requirement is the so-called ''automobile'' exception. If a vehicle is stopped by police, a warrantless search of the vehicle is usually allowable under this exception if the police have probable cause to believe that it contains evidence of a crime. This is based on the principle of exigency, or the need for immediate action arising out of the likely disappearance of the vehicle and the possibility of destruction of the evidence.

Generally, a speeding or traffic violation by itself does not justify the search of a vehicle, but this rule is not without exceptions. If the officer has a reasonable belief that they might be assaulted by the driver, or if the driver fails to produce a valid license or produces a forged one, a search will normally be valid. 

In most instances, a valid search of a vehicle can include any containers within the car, such as packages or luggage. While there must be a connection between a crime and the search, there is no  rule that the search be limited only to items relating to that crime; i.e., the police can search the driver and the car if they have a reasonable belief, or probable cause to believe, that there is a gun in the driver's possession or in the car.
When there is probable cause to search a vehicle, it is not necessary that the search take place immediately. A valid search can occur long after the initial stop and even after the car has been moved to the police station or impound lot. 

When a car is impounded, the police can search it for the purposes of taking an inventory of its contents. It is not necessary that the search be conducted for the purpose of seeking evidence of a crime. While the police can search the entire car and catalog its contents, they are limited in what they can do with the contents; for an inventory search to be valid, it must be made pursuant to standardized police procedures.

If a driver gives a police officer permission to search their car, the warrant requirement is, of course, not necessary. Consent can be either ''express'' or ''implied.''
Implied consent usually becomes a factor when a driver is suspected of driving under the influence of alcohol (''DUI'' or ''DWI''); many states now have statutes that specify that when an officer has a reasonable suspicion that a driver is impaired, the driver's use of the public streets is considered implied consent to search of the driver's person and vehicle.
 Express consent arises when a police officer asks for and receives permission to search the driver's car. When such consent is given, the officer usually is permitted to open a closed container in the car if it might reasonably hold the object of the search.

The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandassociates.com for a free consultation. We are dedicated to protecting your Constitutional Rights.

Traffic Stops: Required Identification- Houston Lawyer

To stop a vehicle, a police officer only needs a reasonable suspicion that the driver is committing, or has committed, a traffic infraction. Usually that suspicion arises from the officer's own observation of the driver and vehicle; however, police also have the authority to stop a vehicle based upon information from an another anonymous driver or pedestrian.
 
On its own, a simple traffic violation will not justify the search of a vehicle; a driver's excessive speed or other minor traffic infraction does not usually indicate that the driver is violent, and it does not give the police officer any reason to think that he is in danger of being assaulted.
However, if the officer has a reasonable belief that he or she might be assaulted by the driver, or if the motorist fails to produce a driver's license or produces a forged one, a search by the officer may be valid.
The officer's suspicion might be reasonable even if the officer makes a mistake of fact, for instance if their computer mistakenly reports that the driver's license is under suspension. However, if the officer does stop a driver based on a mistake of law, the officer's suspicion is not reasonable and the stop will usually be invalidated.

A pretextual traffic stop occurs when an officer uses the suspicion of a traffic violation as an excuse to stop a vehicle for another reason. Pretext stops may still be valid even if a reasonable officer would not have made the stop. Thus, the officer's ulterior motive for making the stop may not be relevant in determining the validity of the stop. Still, many state courts will not blindly accept the officer's pretextual traffic violation justification. For example, weaving and improper lane changes may not be sufficient to show the pretext of a traffic violation unless it is also shown that the motorist's driving posed a safety issue to another vehicle.

Roadblocks or sobriety checkpoints are permitted under the Fourth Amendment so long as they are conducted in a neutral or non-arbitrary manner, their intrusion on motorists is limited, and they further an important governmental or public purpose. There is no requirement that an officer have a reasonable suspicion of criminal activity to justify a stop at a roadblock.

Independent of traffic violations, if a police officer has a reasonable suspicion that a motorist is either committing or preparing to commit a crime, the officer is justified in stopping the vehicle.


Once police officers have lawfully stopped a vehicle, either because of probable cause for a traffic infraction or reasonable suspicion of criminal activity, they can:

• Order the occupants out of the vehicle
• Ask to see the driver's license, registration, and other relevant information, such as proof of insurance.
• Conduct a limited search to gain access to the vehicle identification number.
• Conduct a dog sniff (''canine sniff''), so long as the sniff does not extend the length of the stop.
• Take actions reasonably related to the original reason for stopping the vehicle, or related to suspicions that develop during the stop.
• Frisk for weapons if they have or develop a reasonable suspicion that the occupants may be armed or dangerous, and
• Search the vehicle if the stop provides probable cause for the officers to believe it contains illegal or stolen goods or evidence of a crime.

 When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. For these and other reasons, it is vital that those accused of a crime select the most competent, experienced and effective attorney available.

Psychiatric Treatment in Criminal System:Part III

Harris County, Texas is the most populous county in the state and the third-most populous county in the United States. Its county seat is Houston, the largest city in Texas and fourth-largest city in the United States.
Harris County also  has one of the most underfunded public mental health systems in a state that consistently ranks last, or almost last, in per capita mental health spending. Community-based mental health care is funded mostly by state government, and for years, the Texas Legislature starved its public system. In 2003 Texas lawmakers slashed funding, and thousands of people who relied on the system were suddenly ineligible.
Many went into crisis and were picked up by police or wound up in emergency rooms, where they stayed briefly, stabilized, and were released, still unable to get treatment in the community.

In Texas, a defendant found not competent to stand trial in a violent offense is supposed to be committed for treatment in North Texas' Vernon State Hospital in order to attempt to restore competency.
Texas’ mental health hospital system was designed and built a century ago, when Texas was very rural and good treatment options for mental illness weren’t available. Large campuses of 60 to 90 acres, often in rural areas of the state, were built to house 3,000 patients each. Most patients sent to these facilities weren’t expected to recover.

Although these hospitals still  play an essential role in the mental health delivery system, many of them are functionally obsolete. Many are abandoned, decaying and considered a safety hazard. Buildings used for clinical care are in reasonable condition but poorly designed for modern care, with convoluted hallways with poor visibility from nursing stations. Higher-acuity patients require more caregivers, further crowding already limited common spaces.

A recent Department of State Health Services study determined that five state hospitals- Rusk, Austin, San Antonio, Terrell and North Texas at Wichita Falls - were beyond repair and should be replaced. Furthermore, the buildings and facilities at the Big Spring, Kerrville and North Texas at Vernon state hospitals, as well as the Rio Grande State Center, El Paso Psychiatric Center and Waco Center for Youth, should be repaired and renovated, and the unused, decaying buildings on these campuses should be torn down, the report said.

Because of the lack of beds in Vernon Hospital particularly, the Harris County Jail has now become the largest mental health facility in Texas and the second largest in the USA. It has more beds dedicated to the mentally ill than all other hospitals in the state, combined. Inmates may wait months before being transferred to Vernon.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence.

 

Texas Insanity Defense: Houston Lawyer Part II

In the state of Texas, the insanity defense and the requirements to raise the defense is codified in the Texas Penal Code Section 8.01:

Insanity
    (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

    (b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

An "affirmative defense" allows a defendant to avoid legal responsibility for the charged offense while still admitting guilt; essentially, it provides an excuse or justification for why the action transpired. An affirmative defense has the ability to mitigate the legal consequences of an unlawful action.

In Texas, the insanity defense is available only when there is proof that, because of severe mental disease or defect, the accused did not know his/her conduct was wrong. Very few defendants, even those who are seriously mentally ill and delusional, are incapable of knowing at some level their conduct is wrong or unlawful.

Some individuals with severe, untreated mental illness have symptoms of auditory or visual hallucinations that are quite real to them. While in a delusional state they may be unable to appreciate their acts are either legally or morally wrong.
Importantly, a defendant found not guilty by reason of insanity does not walk out of the courtroom a free person. Instead, that person will be committed for treatment in a maximum security facility and for a disposition within 30 days in cases where there was dangerous conduct. In cases where there was no dangerous conduct, the person will be will be detained for a civil commitment proceeding .

Unfortunately, Article 46C.154 provides that neither party nor the court shall inform the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. In others words, the jury will not be informed that a person found Not Guilty by Reason of Insanity will not be released – although this seems like it would be relevant and pertinent information for a juror to know when they are struggling with finding a person guilty or not guilty.

George Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case. .

Legal Competency: Houston Lawyer

In this first segment of a three-part series of videos discussing Mental Competency and the Insanity Defense, criminal defense attorney George Parnham discusses legal competency as applied to a criminal defense strategy.

There is an important distinction in the difference between competency and criminal responsibility:

• The issue of competency is determined by evaluating whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and determining whether or not defendant has a rational, as well as factual understanding of the process.
• Insanity (or lack of criminal responsibility) refers to whether a defendant can be held legally responsible for his or her criminal behavior.

Competency largely deals with the defendant's present condition, while insanity addresses the mental condition at the time the crime was committed.
Insanity is a legal concept, not a psychiatric concept. Having a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve a defendant from all responsibility for illegal acts they may commit: the mental disorder must be of such a degree as to render the individual incapable of knowing that his/her conduct was wrong.

For more information on Mental Incapacity and Insanity Criminal Defense please visit insanitydefenseattorney.com 

The Code of Criminal Procedure, Chapter 46B states that a person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or 
2.  a rational as well as factual understanding of the proceedings against the person. Further, article 46B.003 states that a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Further, the statute states that "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence."

There is an elaborate procedural process established for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. There are three stages in the pretrial competency determination procedure:

• Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; 
• Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; 
• Stage Three -the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future.

Based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings.
Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored. Incompetency to stand trial is not a defense to criminal responsibility.

Art. 46.05 in the Texas Code of Criminal Procedure provides that a person who is incompetent to be executed may not be executed. This statute is in response to Ford v. Wainright, and provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court will deny it.

Art. 46.05 defines incompetency to be executed as the defendant being unable to understand that he or she is to be executed, that the execution is imminent, and the reason why he or she is being executed.  The condemned has the burden of proving incompetence to be executed by a preponderance of the evidence.
If the trial court determines that the condemned has made a substantial showing of incompetency, they must then order at least two mental health experts to examine the condemned to determine if they are, indeed, incompetent. These experts then report back to the court, the prosecution and the defense attorney. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed.

Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.