John T. Floyd

John T. Floyd
Travels to All Criminal Courts In Texas

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Houston, TX 77002

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Federal and State Criminal Defense Top Attorneys: Criminal Defense - 2008 and 2009 HTexas

Serious Criminal Defense Throughout Texas

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Houston Criminal Defense Attorney

Serious Criminal Defense in Federal and State Courts
Houston, Harris County, Throughout Texas and the U.S.A

Top Criminal Lawyer 2008, 2009 -HTexas

Phone:713-224-0101 Toll Free:866-374-1327
E-mail: JF@criminal-lawyer-houston-texas.com

Sex Crimes

Rape Date Rape Spousal Abuse Statutory Rape Sexual Battery Sexual Abuse Child Abuse	Lewd Conduct Child Molestation Indecent Exposure Internet Pornography Solicitation of Prostitution Aggravated Sexual Assault Possession of Child Pornography

Allegations of sexual assault can be the most frightening charges an individual can face for many reasons. First, the punishment for sex crimes can be extreme. Punishment for some sex offenses can be as high as life imprisonment and it is not uncommon for convicted sex offenders to receive punishments in excess of twenty years.Not only can the sentences for sex crimes be significantly higher than most other criminal offenses, but conviction often requires a life time requirement of registration as a sex offender.

More frightening, perhaps, is the fact that false and/or mistaken allegations are not unusual. Many studies have found that a significant number of allegations of sexual assault are intentionally false, motivated by personal animosity, or arise as a response to a mistaken identity. A 1996 a Department of Justice Report found that of approximately 10,000 sexual assault cases analyzed with DNA evidence over the previous seven years, 2,000 excluded the primary suspect, and another 2,000 were inconclusive. The report also notes that these findings mirror a National Institute of Justice survey of private laboratories, and suggests that there exists "some strong, underlying systemic problems that generate erroneous accusations and convictions." Some law enforcement studies have found that as many as ½ of allegations of sexual assault are false.

In addition, when children are involved, false statements, mistake and manipulation by adults, coupled with the public’s understandable urge to protect the young and helpless, can often lead to situations where individuals are wrongly accused and, in many cases, wrongly convicted. These cases can often start with a switch in the “emotional” burden of proof forcing the suspect to prove his or her innocence. And while this is not the true legal burden required in court, it is often the reality that a defendant must face and prepare to counter at ever opportunity.

For the above reasons it is imperative that an individual suspected or charged with a sex offense contact an attorney immediately. Houston Criminal Lawyer John T. Floyd advises, without exception, that an individual questioned by law enforcement regarding allegations of sexual abuse refuse any interviews until the suspect has had an opportunity to discuss the matter fully with an attorney and evaluate the real costs and benefits of cooperation. In no other type of criminal investigation do the extreme feelings of panic and fear, caused by the stigma of the allegations alone, coupled with false promises by law enforcement, cause such a high rate of false confessions. The bottom line is that anyone suspected of a sex crime must refrain from answering any questions by law enforcement until represented by an experienced attorney.

Sexual Abuse

Section 2242 sets forth two offenses involving a "sexual act" as defined in section 2246(2). The maximum punishment for each is 20 years imprisonment and a fine under Title 18.

Paragraph (1) of the section makes it an offense, in the special maritime and territorial jurisdiction of the United States or a Federal prison, for someone to cause another person to engage in a sexual act by means of express or implied threats or placing another in fear (other than by threats of, or placing in fear of, harm described in section 2241(a)(2)). The requirement of force may be satisfied by a showing that the threat or intimidation created in the victim's mind an apprehension or fear of harm to self or others.

Paragraph (2) of section 2242 makes it an offense to engage in a sexual act with another person who is incapable of appraising the nature of the conduct or physically incapable of declining participation, or communicating unwillingness to engage in, the sexual act. There is no spousal immunity, and corroboration of the victim's testimony is not required. Lack of consent by the victim is not an element of the offense, and the prosecution need not introduce evidence of lack of consent or of victim resistance. Id.

Aggravated Sexual Abuse

Section 2241 sets forth three offenses. All involve a "sexual act" as defined in section 2246(2). Subsection (a) makes it an offense for someone, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, (1) to use force against another person and thereby cause that person to engage in a sexual act, or (2) to cause another person to engage in a sexual act by means of threats express or implied or placing that person in fear that any person will be subjected to death, serious bodily injury, or kidnapping. Thus, it would be an offense, for example, for A to cause B to engage in a sexual act (with A or with someone else) by threatening to kill B's child.

The maximum penalty for an offense under subsection (a) is life imprisonment and/or a fine under Title 18.

Subsection (b) makes it an offense (1) knowingly to render another person unconscious and thereby engage in a sexual act with that person, or (2) knowingly to administer a drug, intoxicant or other similar substance to another person, thereby (A) substantially impairing that other person's ability to appraise or control conduct and (B) engaging in a sexual act with that other person. The subsection requires that the drug, intoxicant, or other similar substance be administered by force or threat of force, or without the knowledge or permission of the person to whom the drug, intoxicant, or other similar substance is administered.

The maximum penalty for a violation of subsection (b) is life imprisonment and/or a fine under Title 18.

Subsection (c) makes it an offense knowingly: to cross a state line with the intent to engage in a sexual act with a person who is less than 12 years old; to engage in a sexual act with a person less than 12 years old in the special maritime and territorial jurisdiction of the United States or a federal prison; or under the circumstances of Subsections (a) and (b) to engage in a sexual act with another person who has attained the age of 12 but has not attained the age of 16 years and is at least 4 years younger than that person, or to attempt to do so.

The maximum penalty is life imprisonment and/or a fine under Title 18. If the defendant has prior violation of subsection (c) or has a state offense that would have been an offense under either such provision had the offense occurred in a federal prison, unless the death penalty is imposed, shall be sentenced to life in prison. Subsection (d) provides that, in a prosecution under subsection (c), the government need not prove that the defendant knew that the victim was less than 12 years old. Thus, there is strict liability as to the age of a victim.

For all of the offenses set forth in section 2241, there is no spousal immunity, and corroboration of the victim's testimony is not required. Lack of consent by the victim is not an element of the offense, and the prosecution need not introduce evidence of lack of consent.

Sexual Abuse of a Minor or a Ward

Section 2243 defines two offenses involving a "sexual act" as defined in section 2246(2). Subsection (a) makes it an offense, in the special maritime and territorial jurisdiction of the United States or a Federal prison, for a person to engage in, or attempt to engage in, a sexual act with someone who is (1) at least 12 but less than 16 years old and (2) at least four years younger than that person. The maximum punishment is 15 years imprisonment and/or a fine under Title 18.

This offense, like that described in section 2241(c), does not require the use of force or threats, or the administering of a drug, intoxicant, or other similar substance. It applies to behavior that the participants voluntarily and willingly engage in. The offense is intended to reach older, mature persons who take advantage of younger, immature persons, but not to reach sexual activity between persons of comparable age.

Corroboration of the victim's testimony is not required. Since subsection (a) reaches no coercive conduct, and since some States permit marriage by persons of less than 16 years of age, subsection (c)(2) sets forth a defense that the parties were married at the time of the sexual act. The defendant has the burden of establishing this defense by a preponderance of the evidence.

Subsection (b) of section 2243 makes it an offense for a person to engage in a sexual act with someone (1) who is in official detention, and (2) who is under the custodial, supervisory, or disciplinary authority of the defendant. The maximum punishment is one year imprisonment and/or a fine under Title 18. Corroboration of the victim's testimony is not required.

Sexual Exploitation of Children

Title 18 U.S.C. § 2251 sets forth three offenses. Subsection (a) proscribes the employment or enticement of a minor to engage in sexually explicit activity for the purpose of producing any visual depiction of such conduct. Either the visual depiction must be actually transported in interstate or foreign commerce, or mailed, or the person must know or have reason to know that it will be so transported, or the visual depiction must be produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer.

Subsection (b) prohibits any parent, legal guardian, or person having custody or control over a minor to permit such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.

Subsection (c) penalizes anyone who makes, prints or publishes any notice or advertisement seeking or offering: (1) to receive, exchange, buy, produce, display, distribute or reproduce a visual depiction of a minor engaging in sexually explicit conduct; or (2) to participate in any act of sexually explicit conduct by or with a minor. Such person should know or have reason to know that such notice or advertisement will be transported in interstate or foreign commerce by any means, including by computer or mail.

Section 2251 imposes a mandatory minimum of 10 years' imprisonment and/or a fine to a twenty year maximum for the first offense and a minimum of 15 years' to a maximum thirty years' imprisonment together with a fine for the second offense if the offender has one prior conviction under Chapter 110, Chapter 109A, or Chapter 117, or under the laws of any state relating to the sexual exploitation of children. An offender with two or more such prior convictions faces a mandatory minimum of thirty years with a maximum sentence of life in prison.

Certain Activities Relating To Material Involving The Sexual Exploitation Of Minors -- 18 U.S.C § § 2252 And 2252A

Section 2252 of Title 18, United States Code sets forth four offenses. Subsection (a)(1) prohibits anyone from knowingly transporting in interstate or foreign commerce or mailing any visual depiction involving the use of a minor engaging in sexually explicit conduct.

Subsection (a)(2) prohibits anyone from knowingly receiving or distributing any visual depiction of a minor engaging in sexually explicit conduct that has been mailed or transported in interstate or foreign commerce or from knowingly reproducing any such visual depiction for distribution in interstate or foreign commerce or through the mails.

Subsection (a)(3)(A) prohibits anyone in the special maritime and territorial jurisdiction of the United States, or on any government land, or in any government facility, from selling or possessing with the intent to sell any visual depiction of a minor engaged in sexually explicit conduct that has been shipped in interstate or foreign commerce or was made with materials sent in interstate or foreign commerce. Subsection (a)(3)(B) penalizes the knowing sale or possession with the intent to sell of any visual depiction of a minor engaged in sexually explicit conduct shipped in interstate or foreign commerce, or produced using materials mailed or shipped by any means, including by computer where the production involved the use of a minor engaged in sexually explicit conduct and the visual depiction of such conduct.

Subsection (a)(4) prohibits the possession of one or more books, magazines, periodicals, films, video tapes, or other matter containing any visual depiction of a minor engaging in sexually explicit conduct, which was shipped or transported or made with materials shipped or transported in interstate or foreign commerce, including by computer.

Section 2252 imposes, for the first three offenses, a maximum 15 years' imprisonment and/or a fine for the first offense and a minimum five years' imprisonment to a maximum 30 years' imprisonment and/or a fine for a subsequent conviction under this Section, under Chapter 109A, under Chapter 117, or under the laws of any state relating to aggravated sexual abuse, or abusive sexual conduct involving a minor or ward, or the trafficking in child pornography. The penalty for violation of Subsection (a)(4) is a maximum sentence of five years and/or a fine for the first offense, and a two year mandatory minimum with a ten year statutory maximum if the offender has a prior conviction as set forth above.

It is an affirmative defense that if the person possessed less than three matters containing the proscribed visual depictions, such person promptly reported same to law enforcement or took steps to destroy without sending it to anyone else other than law enforcement.

Title 18 U.S.C. § 2252A is identical to 18 U.S.C § 2252, with two exceptions. First, section 2252A expands the definition of the prohibited material by using the more inclusive term "child pornography" instead of the words "visual depiction of a minor engaging in sexually explicit conduct" that is utilized in § 2252. A second difference is found in the possessory offense set forth in § 2252A(a)(5)(B), which makes it illegal to possess an image of child pornography.

Section 2252A imposes, for the first four offenses, a maximum 15 years' imprisonment and/or a fine for the first offense and a minimum five years' imprisonment to a maximum 30 years' imprisonment and/or a fine for a subsequent conviction under this Section, under Chapter 109A, or under the laws of any state relating to aggravated sexual abuse, or abusive sexual conduct involving a minor or ward, or the trafficking in child pornography. The penalty for violation of Subsection (a)(5) is a maximum sentence of five years and/or a fine for the first offense, and a two year mandatory minimum with a ten year statutory maximum if the offender has a prior conviction as set forth above. The 1998 legislative amendments included this section under the forfeiture provisions of Sections 2253 and 2254.

This Section was challenged in United States v. Hilton, 167 F.3d 61 (1st Cir. 1999). The appeals court, unlike the district court, found that the 1996 amendment to the child pornography definition in Section 2256 was constitutional, and therefore not vague and overbroad. Similarly, in United States v. Acheson, 195 F.3d 645 (11th Cir. 1999), the court found that the Child Pornography Prevention Act (CPPA) was not facially invalid, not overbroad, and not void for vagueness.

On December 17, 1999, a majority panel of the Ninth Circuit, in Free Speech Coalition v. Reno,___ F.3d ___, 1999 WL 1206649, held that two subsections of the child pornography definition section were unconstitutionally vague and overbroad In following the statute's severability clause, the panel then severed the language "appears to be [a minor]" set forth in 18 U.S.C. § 2256(8)(B) and the language "convey[s] the impression [that the material is or contains a visual depiction of a minor]" set forth in 18 U.S.C. § 2256(8)(D) from the statute.

Production Of Sexually Explicit Depictions Of A Minor For Importation Into The United States

Section 2260 of Title 18, United States Code, prohibits the use of a minor outside the United States to engage in sexually explicit conduct for use in material to be imported or the transportation of a minor with the intent to create such visual depictions. Subsection (b) prohibits a person outside of the United States from knowingly receiving, transporting, selling, distributing a visual depiction of a minor engaged in sexually explicit conduct, intending such depiction be imported into the United States. The penalty for a person who violates this section, or conspires or attempts to do so, is imprisonment for not more than 10 years and/or a fine. A prior conviction under Chapter 109A or Chapter 110 of Title 18 raises the penalty to a maximum sentence of 20 years and/or a fine.

Indecency With A Child

State Law:

(a) A person commits an offense if, with a child younger than 17 years and not the person's spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or
(B) causes the child to expose the child's anus or any part of the child's genitals. (b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section. (c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person. (d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.

Aggravated Sexual Assault

State Law:

(a)A person commits an offense:
(1) if the person:
(A) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(iii) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means;
(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(v) causes the mouth of a child to contact the anus or exual organ of another person, including the actor; and (2) if:
(A) the person:
(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
(ii) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;
(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or
(vi) 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;
(B) the victim is younger than 14 years of age; or
(C) the victim is an elderly individual or a disabled individual. (b) In this section:
(1) "Child" has the meaning assigned by Section 22.011(c).
(2) ""Elderly individual" and "disabled individual" have the meanings assigned by Section 22.04(c). (c) An aggravated sexual assault under this section is without the consent of the other person if the aggravated sexual assault occurs under the same circumstances listed in Section 22.011(b).
(d) The defense provided by Section 22.011(d) applies to this section.
(e) An offense under this section is a felony of the first degree.

Sexual Assault

State Law:

(a)A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

(2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat;
(8) the actor is a public servant who coerces the other person to submit or participate;
(9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor;
(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or
(11) the actor 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 under Chapter 2, Family Code.

(c) In this section:
(1) "Child" means a person younger than 17 years of age who is not the spouse of the actor.
(2) "Spouse" means a person who is legally married to another.
(3) "Health care services provider" means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a licensed vocational nurse licensed under Chapter 302, Occupations Code;
(D) a physical therapist licensed under Chapter 453, Occupations Code;
(E) a physician assistant licensed under Chapter 204, Occupations Code; or
(F) a registered nurse or an advanced practice nurse licensed under Chapter 301, Occupations Code. (3) "Health care services provider" means:
(A) a physician licensed under Subtitle B, Title 3, Occupations Code;
(B) a chiropractor licensed under Chapter 201, Occupations Code;
(C) a physical therapist licensed under Chapter 453, Occupations Code;
(D) a physician assistant licensed under Chapter 204, Occupations Code; or
(E) a registered nurse, a vocational nurse, or an advanced practice nurse licensed under Chapter 301, Occupations Code. (4) "Mental health services provider" means an individual, licensed or unlicensed, who performs or purports to perform mental health services, including a:
(A) licensed social worker as defined by Section 505.002, Occupations Code;
(B) chemical dependency counselor as defined by Section 504.001, Occupations Code;
(C) licensed professional counselor as defined by Section 503.002, Occupations Code;
(D) licensed marriage and family therapist as defined by Section 502.002, Occupations Code;
(E) member of the clergy;
(F) psychologist offering psychological services as defined by Section 501.003, Occupations Code; or
(G) special officer for mental health assignment certified under Section 1701.404, Occupations Code. (5) "Employee of a facility" means a person who is an employee of a facility defined by Section 250.001, Health and Safety Code, or any other person who provides services for a facility for compensation, including a contract laborer.

(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.

(e) It is an affirmative defense to prosecution under Subsection (a)(2) that: (1) the actor was not more than three years older than the victim and at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section; and (2) the victim was a child of 14 years of age or older.

(f) An offense under this section is a felony of the second degree.