Possession of Child Pornography is generally a third-degree felony in Texas carrying a punishment range of 2 to 20 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 defenses that can be raised in these cases.
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 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 use 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.
Under Texas Penal Code § 43.26, a person commits the offense of possession of child pornography, if he or she
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.
While possession of child pornography is typically a third-degree felony, it can be enhanced to a higher punishment range if the offender has been previously convicted of possession or promotion of child pornography. One previous conviction will result in a second-degree felony charge whereas two or more prior convictions result in a first-degree felony charge. Furthermore, if convicted of possession of child pornography the offender will be required to register as a sex offender for life. Failure to register as a sex offender, when required to do so, will result in an additional felony charge.
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.
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.
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.
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 v. State, 109 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)).
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:
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:
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.
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.
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.