Possession Of Child Pornography In Texas

Possession of Child Pornography is generally a third-degree felony in Texas carrying a punishment range of 2 to 10 years in prison. But being charged with possession of child pornography is much more challenging than any other third-degree felony for a number of reasons – including the stigma of the arrest, the requirement to register for life as a sex offender, and the fact that the presumption of innocence seemingly goes out the window. In this article, we will discuss what possession of child pornography is in Texas, how these cases are investigated and developed, and the defenses that can be raised in these cases.

Why you should listen to us

Before we do a deep dive, why should you listen to us about possession of child pornography charges? First and foremost, we have defended cases much worse than yours. We have defended serious federal cases – even a case involving the hosting of child pornography that was described by agents as the “Netflix of child porn.” Second, we understand, better than most defense attorneys, the technology that law enforcement uses to base their allegations – from the use of the dark web to something as simple as tracing an IP back to a user. We know the assumptions and the mistakes agents they make. We have experts who can distinguish between actual and simulated child porn and we have gone to trial battling the most egregious of charges.

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What is Possession of Child Pornography Under Texas Law?

Under Texas Penal Code § 43.26, a person commits the offense of possession of child pornography, if he or she

  • knowingly or intentionally possesses or accesses with intent to view visual material that depicts a child younger than 18 years of age at the time the image was made, who is engaging in sexual conduct; and
  • the person knows the visual material depicts a child younger than 18 years of age.

Sexual conduct is a broad definition that encompasses everything from sexual contact to bestiality. The broad definition allows the state of Texas to prosecute a high volume of offenses that include images, videos, or digital downloads that sexually exploit children.

What is the Punishment for Possession of Child Pornography in Texas?

The punishment for possession of child pornography in Texas has changed. It is now as follows:

Fewer than 100 Visual Depictions

Third Degree Felony: Involves possession of fewer than 100 visual depictions of a child. Standard punishment for a third-degree felony includes 2 to 10 years of imprisonment and a possible fine of up to $10,000.

100 to Fewer Than 500 Visual Depictions

Second Degree Felony: Possession of 100 to fewer than 500 visual depictions. This degree typically carries a punishment of 2 to 20 years in prison and a fine of up to $10,000.

500 or More Visual Depictions

First Degree Felony: Possession of 500 or more visual depictions. Punishment for a first-degree felony ranges from 5 to 99 years or life imprisonment, with the same potential fine.

Aggravated Circumstances

This applies if the offender was an employee at a child-related facility or receiving state funds for child care:

Enhanced First Degree Felony: Punishable by life imprisonment or a term of 25 to 99 years.

Special Provisions for Younger Victims or Repeat Offenders:

If the depicted child was under 10 years old, or if the defendant has prior convictions for a similar offense, the offense is bumped up to the next higher category or the minimum term of confinement is increased to 15 years if it’s already a first-degree felony under standard conditions.

Number of Depictions Standard Offense Degree Enhanced Conditions Enhanced Offense Degree
Fewer than 100 Third Degree Felony Depicted child under ten or prior conviction – enhanced by one level Second Degree Felony
100 to fewer than 500 Second Degree Felony Depicted child under ten or prior convictions – enhanced by one level First Degree Felony
500 or more First Degree Felony Depicted child under ten or prior convictions (enhanced to a minimum 15 years) Enhanced First Degree Felony
Special roles (e.g., child-care worker) First Degree Felony Imprisonment range specific (25 to 99 years or life) Enhanced First Degree Felony

Is Possession of Child Pornography a 3G Offense in Texas?

Effective September 1, 2023, possession or promotion of child pornography is classified as a “3G offense” in Texas. A 3G offense in Texas is a designation for certain serious crimes that carry more stringent penal consequences. Individuals convicted of a 3G offense are required to serve at least half of their prison sentence before they become eligible for parole. Additionally, a judge cannot grant straight probation to a defendant convicted of a 3G offense unless it comes with the recommendation of a jury following a trial.

Registration as a Sex Offender for Child Pornography in Texas

If you plead guilty to or are found guilty of possession of child pornography, Texas law requires you to register as a sex offender for life – regardless of whether you are convicted or placed on deferred adjudication. Learn more about sex offender registration in Texas.

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How are Possession of Child Pornography Cases Investigated?

Tip Lines

The internet gives offenders a convenient way to quickly, anonymously, and inexpensively possess child pornography. The National Center for Missing and Exploited Children has a CyberTipline that gives electronic service providers and the general public the opportunity to file reports when they suspect a child is being sexually abused. After a report has been made, the Center staff thoroughly reviews the tip to find a location for the incident reported. The location is then made available to national and state investigators who continue the investigation of the case.  In 2019, the CyberTipline received 150,667 reports from the general public and 16,836,694 from electronic service providers.

For example, in December 2018 someone reported that an unknown man was sexually exploiting an infant. The IP address was quickly traced back to a location in San Jose, California. Just three hours after the report was made, the infant was located, 11 other children were rescued, and the suspect was arrested.

The National Center for Missing and Exploited Children cannot stop child sexual abuse alone, which is why electronic service providers like Dropbox, Microsoft, Google, and Facebook work with the National and International Centers for Missing and Exploited Children. In 2009 Microsoft, with the help of Dartmouth College, developed PhotoDNA, a tool that helps locate illegal images of child pornography on the internet, even after the image has been cropped or watermarked. PhotoDNA creates a unique hash, or digital signature, of the image which is then used to find copies of the same image. Microsoft ultimately donated PhotoDNA to the National Center for Missing and Exploited Children to help them look for known hashes of images that depict child pornography. Unfortunately, PhotoDNA does not help locate videos or encrypted files.

Sting Operations

Law-enforcement officials investigating possession of child pornography cases also regularly set up sting operations and host child pornography sites to catch offenders in the act. For example, in December 2014, the FBI was informed that a site called “Playpen” was hosting child pornography. After investigating the site and IP address, a search warrant was obtained and the server hosting the site was seized. Instead of shutting down the site, however, the FBI continued operating the child pornography website for roughly two weeks. When images of child pornography were downloaded, the FBI would send malware to the computer visiting the site, ultimately infecting over 1,000 computers. The malware would copy identifying information found on the computer and send it back to the FBI. Eventually, 137 individuals throughout the country who had accessed the child pornography site, were criminally charged.

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What are Possible Defenses to Child Pornography Charges in Texas?

Real vs. Simulated Child Pornography In Texas

Is the image actually child pornography? This defense is broader at the state-level than it is at the federal level. In Texas, it is an offense to knowingly or intentionally possess “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” if the person “knows that the material depicts the child” engaging in sexual conduct. Tex. Pen. Code Ann. § 43.26(a). Unlike the federal statute, the plain language of the Texas statute indicates that it prohibits only possession of material that depicts an actual child, not material that merely “appears” to depict a child.  (However, because section 43.26(a) only prohibits pornography depicting actual children, the statute is not vague or overbroad. Webb vState109 S.W.3d 580, 583 (Tex. App.—Fort Worth 2003, no pet.). Ex parte Fusselman, NO. 14-20-00549-CR, 13-14 (Tex. App. Mar. 30, 2021)).

Affirmative Defenses To Child Pornography In Texas

In Texas, there are also a number of affirmative defenses an attorney can make on behalf of his or her client to avoid prosecution for child pornography. An affirmative defense basically occurs when a person admits the conduct, but provides a legal justification. Under Texas Penal Code § 43.25(f), it is an affirmative defense if:

  • 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 is no more than 2 years older than the child.

Age Of Subject

If there is a question before the jury as to whether or not the person depicted in the recording is age 18, Section 43.25(g) provides that the determination can be made by:

  • 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
  • Any other method authorized by law or by the rules of evidence at common law.

Exceptions for Law Enforcement And School Administrators

Furthermore, no criminal culpability exists if the offender is a law enforcement officer or school administrator who possessed or accessed explicit images in good faith because two underage children were sexting, so long as the actor took reasonable steps to promptly destroy the images.

Possession Of Child Pornography

Illegal Searches in Child Porn Cases

In child pornography investigations it is not uncommon for defense attorneys to allege an illegal search or arrest. Police often make procedural errors that violate a person’s Fourth Amendment rights.

For example, the United States Fifth Circuit Court of Appeals recently reversed a nine-year sentence for a man accused of possession of child pornography after finding his Fourth Amendment right to unreasonable searches and seizures was violated.

In that case, Brian Morton was pulled over for speeding near Palo Pinto, Texas. Morton gave officers permission to search his vehicle, which resulted in the discovery of sixteen ecstasy pills, a bag of marijuana, a glass pipe, children’s school supplies, 14 sex toys, and 100 pairs of women’s underwear. Morton was promptly arrested. Soon after, an officer applied for warrants to search all three cellphones that were also found in Morton’s vehicle. The warrants were supported by affidavits mentioning the need to search the phones in order to find more evidence to support Morton’s drug charges. The affidavits, however, failed to mention anything regarding child exploitation, which would prove to be a problem.

While going through Morton’s cellphones, officers discovered 19,270 images of children being sexually exploited. As a result, Morton was charged with possession of child pornography. Morton’s attorney moved to have the explicit images suppressed because there was no probable cause to support searching through the camera roll to find evidence of drug possession. The motion to suppress was not granted, and Morton was found guilty of possession of child pornography and sentenced to nine years in prison.

On January 5, 2021, the United States Court of Appeals for the Fifth Circuit reversed Morton’s nine-year sentence because his Fourth Amendment right to unreasonable searches and seizures was violated. The court concluded that the motion to suppress had insufficient probable cause to support searching through Morton’s camera roll for evidence related to drug possession.

The Fourth Amendment guarantees people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. An additional defense to possession of child pornography includes arguing that the execution of a search warrant is invalid, like in the Morton case, because probable cause did not exist. It may also be argued that the State cannot prove the “possession” element required to be found guilty of possession of child pornography or the explicit images were possessed unintentionally.

Facing Possession of Child Pornography Charges? Contact Us

If you are under investigation or have been arrested for possession of child pornography, or any offense involving the sexual exploitation of children, it is important to contact a highly experienced attorney as soon as possible. We can help. Call 817-203-2220 for a consultation with a seasoned attorney skilled at handling these kinds of cases.

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