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Sexual Assault Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Jan 04
0
Judge Writing On Paper At Desk

Unanimity Instruction Required and Not Given, But No harm, Says CCA

By | Jury Trial

Trial Court Failed to Give Unanimity Instruction to the Jury

The Court of Criminal Appeals recently handed down an opinion regarding a unanimity jury instruction in an aggravated sexual assault case. The issue before the Court was whether the trial court erred when it failed to instruct the jury that it must be unanimous in deciding how the sexual contact occurred when there were multiple allegations. The Court of Criminal Appeals found the jury instruction to be erroneous but concluded no harm occurred.

French v. State, (Court of Criminal Appeals 2018).

The Facts—The Defendant Was Convicted for Aggravated Sexual Assault of a Child

The defendant was originally indicted on a single count of aggravated sexual assault of a child. The indictment alleged that the defendant caused the penetration of the child’s anus by the defendant’s sexual organ. Before trial though, the indictment was amended to add “contact with” and “penetration of” the sexual organ of the child by the defendant’s sexual organ. As a result, the indictment presented four options for a conviction: (1) the defendant contacted the child’s anus with his sexual organ; (2) the defendant penetrated the child’s anus with his sexual organ; (3) the defendant contacted the child’s sexual organ with his sexual organ; and/or (4) the defendant penetrated the child’s sexual organ with his sexual organ.

At trial, the jury instructions authorized the jury to convict the defendant on any one of the four theories. In addition, the trial court explicitly instructed the jury that they need not all agree on the manner in which the sexual assault was committed. This instruction essentially authorized the jury to convict the defendant without agreeing as to which orifice he had “contacted or penetrated”—even though there was little to no evidence presented that defendant ever contacted or penetrated the child’s sexual organ. This prompted the defendant to object and ask the court for a unanimity instruction regarding the manner in which the sexual assault was committed. However, the court overruled the objection and the defendant was subsequently convicted.

The Court of Appeals Reversed the Defendant’s Conviction—Holding the Trial Court Erred in Failing to Submit a Proper Instruction Which Caused “Some Harm”

On appeal, the defendant argued that the jury charge failed to follow the juror unanimity requirement because it did not require the jury to agree as to which orifice he contacted and/or penetrated. For double jeopardy purposes, he argued the theories were considered distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred by failing to submit proper instructions. In light of this error, the court of appeals determined that the erroneous jury charge was sufficient to invoke the “some harm” standard under Almanza, which required a reversal.

The Court of Criminal Appeals Reversed the Court of Appeals’ Judgment—Finding No Actual Harm Occurred

On petition for discretionary review, the State did not contest the erroneous jury charge. Rather, it argued that any error in the jury charge as to the unanimity requirement did not result in harm to the defendant. The Court of Criminal Appeals agreed.

In analyzing whether there was “some harm,” the Court of Criminal Appeals considered the trial court’s error with respect to the four factors set out in Almanza: “(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole.”
The Court of Criminal Appeals noted that in concluding that “some harm” occurred the court of appeals only relied upon the second Almanza factor—the state of the evidence. That court identified there was “some evidence in the record” for the jury to potentially conclude that the defendant penetrated both the child’s anus and sexual organ with his own sexual organ. And, since there was “some evidence” it believed that the jury could have regarded itself as authorized to convict different ways without reaching any agreement on a specific theory beyond a reasonable doubt.

However, even considering the above reasoning, the Court of Criminal Appeals determined there was no harm suffered when taking into consideration all four of the Almanza factors. The Court explained that “the risk that a rational juror would have convicted the defendant on the basis that he contacted and/or penetrated the child’s sexual organ with his own—and not also on the basis that he contacted and/or penetrated the child’s anus—is so ‘highly unlikely’ as to be ‘almost infinitesimal.’” Not only was there overwhelming evidence at trial that suggested anal contact and penetration occurred, there was no encouragement for a specific finding, and the defendant’s only defense was that it never happened. All of this supports the Court’s conclusion that the harm was merely hypothetical and not actual. As such, the Court reversed and remanded the case even in light of the error.

Oct 21
3
Pretext Phone Call Texas Sexual Assault

Pretext Phone Calls in Sexual Assault Investigations

By | Sex Crimes

Pretext Phone Call Texas Sexual AssaultDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault investigations, especially where the victim knows the suspect, investigators often use recorded phone calls between the suspect and the complaining witness of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Jun 22
3
Sex Offender Deregistration Texas

Sex Offender Deregistration | Early Termination of Offender Registration

By | Sex Crimes

Sex Offender Deregistration TexasIn 2005, the Texas legislature enacted House Bill 867, which allows for the early termination of the requirement for an individual to register as a sex offender if it is determined that the person is no longer a continuing threat to society.

If you have been required to register as a sex offender in Texas, you may be eligible for this deregistration after a minimum time of registration. Whether you will be eligible for early termination will depend on whether the registerable offense meets specific criteria under State and Federal laws. In addition to determining whether your offense meets these criteria, there are other procedures you must follow and a judicial order that must be granted in order to obtain early termination. Because of the intricacies of this process and the requirement of filing for the judicial order, we recommend that you hire an experienced criminal defense lawyer to help you with the sex offender deregistration process.

Do I Qualify for Early Termination of My Obligation to Register as a Sex Offender?

1. ONLY 1 CONVICTION: The first requirement to qualify for deregistration as a sex offender is that you must only have one single reportable adjudication or conviction that requires registration under Texas Code of Criminal Procedure Chapter 62.

2. EXCEED THE FEDERAL MINIMUM TIME: The second requirement is that the minimum registration period for your reportable conviction must exceed the minimum required registration under Federal Law. Eligible offenses can be found here. For most offenses, the Federal minimum is 10 years. Texas Code of Criminal Chapter 62 specifically states that if an offense is not on this list, then it does not qualify.

Application to the Council on Sex Offender Treatment

To determine eligibility, you must submit an application to the Council of Sex Offender Treatment. To do this, you must fill out the Initial Eligibility Checklist. You will also need to obtain your Texas Department of Public Safety and FBI criminal histories. It might take a few weeks, but the Council on Sex Offender Treatment will respond by sending you a letter telling you whether you are an eligible candidate for deregistration.

If Eligible, What are the Next Steps to Deregister as a Sex Offender in Texas?

Just because an offense meets the initial requirements of deregistration, it does not mean that the person automatically qualifies for deregistration. While initially eligible, the person must move to the next steps of the procedure.

Deregistration Evaluation

Once it is determined that an offense is eligible, the next step to deregister is to undergo a risk assessment known as a Deregistration Evaluation. The person applying for deregistration is financially responsible for paying for this risk assessment and this assessment must be conducted by one of the 22 deregistration specialists that have been authorized by the Texas Council on Sex Offender Treatment. Your attorney can put you in contact with one of these specialists to have them conduct the assessment.

Judicial Order from the Original Court

The final step is to obtain an Order Granting Early Termination from a judge. To obtain an Order you must submit a Motion for Early Termination to the judge in the court that originally presided over your case. This motion must also be accompanied by certified copy of the risk assessment report prepared by the specialist in addition to a written explanation of the offense’s eligibility. After filing this Motion, the court will likely grant you a hearing by the judge where you will have an opportunity to present evidence to pursuade the judge to sign the Order Granting Early Termination. Because of this process, it’s highly recommended that you have an attorney who can help you with this process and hearing.

Are There Any Other Processes to Avoid Registering as a Sex Offender?

Under Texas Code of Criminal Procedure Section 42.017 and 42A.105, there are some limited remedies available to a person that’s otherwise required to register as a sex offender due to an offense of Indecency with a Child or Sexual Assault. Specifically, for these offenses, if:

  1. at the time of the offense, you were not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age, and
  2. the conviction is based solely on the ages of the defendant and the victim or intended victim at the time of the offense. Also, this must be the result of a single reportable adjudication or conviction.

If the above criteria are met, then under Texas Code of Criminal Procedure 62.301, a person may petition the court anytime at or after the date of the person’s sentencing for an exemption to register as a sex offender. An order issued under this exemption does not expire, but the court is required to withdraw the order if a person receives a subsequent reportable conviction or adjudication.

What Happens if an Order for Early Termination of the Duty to Register as a Sex Offender is Granted?

If deregistration is granted, then a person is no longer required to register as a sex offender. Getting an order for early termination does not destroy the records or remove the conviction from a person’s record, but it does mean that the threat of a new felony case being filed for failure to register is no longer a possibility. Your name will also be removed from the Texas Sex Offender Registry database.

Free Consultation | Tarrant County Deregistration Attorneys

If, after reading this article, you believe that you or a loved one might qualify for sex offender deregistration, contact our team today for a free case evaluation. We would be happy to help you get the sex offender registration requirement behind you. Contact us at (817) 993-9249.

Jun 08
2
Baylor Football Ukwuachu Sexual Assault

Baylor Football Player Sam Ukwuachu’s Sexual Assault Conviction Reinstated

By | Sex Crimes

Baylor Football Ukwuachu Sexual AssaultBaylor Sexual Assault Case: Ukwuachu v. State (Tex. Crim. App. 2018) 

Anyone who lives in the state of Texas has heard about the sexual assault scandal at Baylor. One of the cases that triggered the investigation of how Baylor handles sexual assault accusations recently took an interesting turn. Former Baylor football player Sam Ukwuachu was found guilty of sexual assault in 2015. He has been fighting that conviction ever since. The prosecution achieved this conviction with the help of text messages sent from the victim to her friend. Ukwuachu’s defense attorney argued that earlier text messages sent to the same friend would help to show the complete nature of the relationship and could be compelling evidence that the woman consented to sex. However, the trial court decided that those text messages were inadmissible under Texas’ Rape Shield Laws and Ukwuachu was ultimately convicted. The process did not stop there.

Ukwuachu Appealed the Sexual Assault Conviction

Ukwuachu appealed his conviction arguing that the earlier text messages should have been admissible and the trial erred by refusing to admit them. In 2017, the 10th Court of Appeals sided with Ukwuachu, reversing the conviction and ruling that the trial court abused its discretion by refusing to admit the messages. The court reasoned that under Texas Rules of Evidence 412 and 107, the messages should have been allowed even though Ukwuachu’s attorney did not present the evidence under Rule 412.

Texas Court of Criminal Appeals Overturns the Lower Court, Reinstates Conviction

This week, Texas’s highest criminal court issued its opinion on the case. Ukwuachu v. State (Tex. Crim. App. 2018). The CCA held that the 10th Court of Appeals erred when it reversed the conviction. In a plurality opinion, the CCA held that the trial court did not abuse its discretion in not allowing the text messages.

Texas Rule of Evidence 412 and 107

Rule 412 is also known as the “Rape Shield” law. It is a rule of exclusion that prevents the admission of evidence of a sexual assault victim’s “past sexual behavior.” TEX. R. EVID. 412(a)(1). It also makes any evidence in the form of depictions of specific instances of the victim’s sexual conduct inadmissible. TEX. R. EVID. 412(a)(2). However, it has many exceptions.

The exceptions the TRE 412 include when the evidence:

  • is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;
  • concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;
  • relates to the victim’s notice or bias;
  • is admissible under Rule 609; or
  • is constitutionally required to be admitted

Rule 107 is known as the Rule of Optional Completeness. Rule 107 states,

 “[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.”

Under this rule, there are two avenues to the admission of evidence. The first is if partial evidence is introduced, any remaining part of that same evidence may be introduced so long as it is on the same subject. Second, other evidence, even evidence that is not a part of what has already been introduced, may be introduced if it is necessary to explain or help the trier of fact fully understand the part that was introduced. Basically, the courts do not want the parties to present a false picture to the jury by selectively presenting pieces of the whole.

Rule 107 was the focal point at the trial court regarding the admission of the “other text messages.” The defense argued that the order messages were necessary to help the jury to fully understand the messages that were already in evidence. The state (and the trial court) disagreed.

Why Was the Conviction Reinstated?

The CCA explained that at the trial court, neither party discussed Rule 412 and how it would apply to the text messages. Instead, both the state and the defense argued based on Rule 107. Accordingly, it was inappropriate for the 10th court to decide the appeal using Rule 412. When analyzing Rule 107, the Judge noted that the text messages could have been interpreted in multiple ways. They could have been part of the same conversation, they could have been necessary to explain the messages already introduced to the jury, or they could have fallen into neither category, making them inadmissible. The trial court determined that the messages fell into neither category and were inadmissible. The CCA explained that this was not error because it fell under the trial court’s discretion. Judge Walker wrote:

Arguably, both parts of the text stream are within the same conversation, because a text message conversation can span a long period of time and the messages at issue in this case were all sent on the same night over what was, at most, a one hour and forty-five minute time period. On the other hand, the earlier text messages that defense counsel sought to have admitted appear to be during a time when the victim was traveling with Appellant to Appellant’s apartment, and the later text messages that the State introduced appear to be during the time that the victim was actually at Appellant’s apartment, including the time after the assault occurred. This latter interpretation is the one that the trial court made during the hearing.

A court only abuses its discretion if its decision lies outside the zone of reasonable disagreement. Since the trial court’s decision in this case fell within a reasonable zone of disagreement, its decision to deny the introduction of the text messages should stand. This means that Sam Ukwuachu’s original conviction is reinstated.

The case was remanded back to the lower court.

May 29
4
Innocent DNA Transfer in Laundry

Innocent Transfer of DNA Through a Load of Laundry

By | DNA

What is Transfer DNA and Why is it Important in Criminal Cases?

Innocent DNA Transfer in LaundryWhen a person thinks of DNA evidence, they typically think of blood, semen, or some sort of bodily fluid left at a crime scene that indicates a suspect in a crime. However, this is no longer the case. With the advances in technology, DNA can be detected from just sitting near another person. In a study done by Australian forensic scientist Roland van Oorschot, he found that in 50% of volunteers who sat at a table and shared a jug of juice they ended up with another’s DNA on their hands. The volunteers never touched one another and some of the DNA found was from individuals who were not even at the table. They found that DNA was much easier to transfer than anyone had previously thought.  This means that at any given crime scene, there could be hundreds of DNA profiles. The DNA found by investigators could be from an innocent person or the suspect. This is concerning because, while there is a way to discover whose DNA it is, there is not a way to discern how it got there. Who’s to say they won’t find yours?

The DNA Phantom Case From Germany

That is exactly what happened in the case of the Phantom of Heilbronn. In Germany, DNA from one woman was found at crimes scenes ranging from murders to thefts. This woman’s DNA was connected to 40 crimes extending as far back as 1993 and covering the countries of Germany, Austria, and France. However, the DNA that was found did not belong to the perpetrator, it belonged to a woman who made the cotton swabs used to collect DNA samples from the crime scene. Even though the cotton swabs went through the proper sterilization process, they still contained traceable amounts of DNA. The Phantom of Heilbronn is an example of how easily DNA can be innocently transferred to a crime scene.

How DNA Can Be Transferred Through Laundry in Child Sexual Assault Cases

When it comes to child sexual abuse cases, researchers have found that DNA can be transferred innocently by the laundry even after clothes are supposed to be “clean.” A Canadian study discovered that when undergarments are washed with sheets containing bodily fluids, the undergarment too will have DNA on them. The DNA from the sheets transfers to the undergarments in the washer and the washer itself. This is problematic because a person’s DNA can end up on every household member’s clothing in one wash. This DNA can later be collected during an investigation, but investigators might make the wrong assumption as to how it got there.

To help distinguish between innocent DNA transfer from laundering and DNA that was left during a crime, the researchers studied the location of the DNA on the items of clothing. In the process of this experiment, the findings strongly suggest that bodily fluids that were transferred during laundering were absorbed deeper into the fabric. Swab samples that yield significant quantities of bodily fluids are indicative of the fluid being deposited directly on the clothing as opposed to transfer during laundering. DNA that is transferred during the laundering process is both found in a different location and lesser in quantity than DNA deposited through abuse.

What Does This Mean for the Future of DNA Analysis?

The findings from this research are important for the future of DNA evidence, especially in the case of child sexual abuse cases. This research shows that DNA does not immediately indicate sexual abuse. This research emphasizes that the mere presence of DNA on a child’s undergarments does not confirm abuse. Investigators should gather all available evidence before they come to a conclusion.

Jan 12
1
Megans Law Sex Offender Passport

Passports Revoked for Sex Offenders Pursuant to New Law

By | Sex Crimes

Megan’s Law and the Implications for Passports of Registered Sex Offenders

Sex Offender Passport LawIn February of 2016, we wrote about President Obama signing Megan’s Law and the implications that the law would have on passports.

Effective January 11, 2018, in accordance with Megan’s Law, the U.S. State Department has started to revoke passports issued to registered sex offenders. The law was passed October 31, 2017 but is now in effect. This law prevents the Department of State from issuing passports to sex offenders without a unique identifier printed on the person’s passport and authorizes the State Department to immediately revoke all passports currently held by registered sex offenders that do not contain this identifier.

Required Endorsement for Sex Offender Passports

Passports re-issued to registered sex offenders will now bear an endorsement on the passport, which will read:

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”

According to federal law, endorsements cannot be printed on passport cards, so qualifying individuals will not be issued passport cards.

This new procedure by the State Department does not prohibit registered sex offenders from leaving the country. But, it certainly leads to the presumption that this identifying marker on these passports could very likely lead to these individuals being denied entry into other countries.

In the coming weeks, the Department of State will be sending letters to those individuals covered under this law notifying them that their passports are now revoked.

There are a wide number of crimes that can lead to a person being on the sex offender registry. These crimes can include sexual assault of a child, indecency with a child, online solicitation of a minor and viewing or sharing child pornography (either inadvertently or on purpose).

For more information, visit the Department of State website.

 

Oct 24
2
Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

By | Sex Crimes

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

Jul 31
10
psychosexual evaluation sex offender risk assessment

Psychosexual Evaluations: A Risk Assessment for Sexual Allegation Cases

By | Sex Crimes

psychosexual evaluation sex offender risk assessmentA psychosexual evaluation is a method utilized by courts, prosecutors, and defense attorneys to provide a scientific basis to determine with a person is likely to be a repeat sexual offender. The evaluation is performed by a state-licensed mental health professional and, if requested by the defense, it is completely confidential for the client and their attorney.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options that will be most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

Explaining the Psychosexual Evaluation Process

How long does the evaluation last?

The evaluation usually lasts a full day, but can sometimes spill over into a second day. However, the entire evaluation can be completed in about six hours. A typical schedule for the evaluation will last from 8:30am – 5:00pm, with breaks between sections of tests.

The Evaluation Consists of Four Parts

  1. Clinical interview
  2. Psychometric tests
  3. Physiological assessment of sexual arousal
  4. Risk assessment

Clinical Interview

The clinical interview lasts about one hour and serves to help the therapist and the client get to know each other before the tests begin. It also gives the client an opportunity to talk about the allegation with the therapist. This is the point where the therapist will document their initial impressions and provide detailed notes on the client. It is important that the person is honest and open about the nature of the allegation. If conducted at the request of the individual’s attorney, the evaluation is covered under the attorney-client privilege and the attorney cannot disclose the results or what was said without the client’s permission.

Psychometric Tests

The psychometric tests are comprised of a personality inventory, sexual inventory, and intelligence test. These tests are primarily in written formats, including true or false questions. The personality inventory allows the therapist to evaluate the client’s personality type, which will be factored in throughout the assessment. The sexual inventory is the longest portion, consisting of about 560 items. It is a thorough assessment of the client’s sexual history, background, and development. Again, this portion of the test factors into the therapist’s overall assessment of the client’s situation. The final portion is the intelligence test. This portion only lasts about twenty minutes and is essentially an IQ test. The intelligence test is important because it allows the therapist to effectively advocate that the client can handle the mental demands of treatment.

Physiological Assessment of Sexual Arousal

The physiological assessment helps the therapist understand whether the allegation would be outlier behavior for the client or not. This is primarily achieved by gaining an understanding of the client’s sexual preferences using the penile plethysmograph (PPG). The PPG operates by measuring blood pressure and erectile changes in the penis of the client due to the introduction of different visual stimuli. The PPG also monitors the client’s breathing to determine whether they’re attempting to deliberately falsify the results. Because accurate results are required for the therapist to make a strong evaluation on behalf of the client, the client should not attempt to cheat the PPG. Due to the nature of the visual stimuli and the physical intrusiveness of the PPG, this is considered the most difficult part of the evaluation for individuals being tested.

Rarely, a polygraph will also be performed. The polygraph is only used when the client denies any actual physical contact because the chance of recidivism is greatly diminished if there is no physical contact. If the polygraph is failed, then the results will not be used in the therapist’s evaluation because they do not indicate anything significant about the client’s situation.

Risk Assessment

The risk assessment consists of two parts, general criminality and sexual recidivism. The general criminality portion determines the client’s risk of recommitting crimes, while the sexual recidivism portion determines the client’s risk of recommitting sexual crimes. This part of the psychosexual assessment is extremely important because it allows the therapist to assign the client a risk profile to reoffend, both in general criminality and in sexual criminality. The therapist’s testimony that the client is a low risk to reoffend can be crucial for the defense in asserting that the client does not deserve a harsh punishment for the original allegation.

Confidentiality

When the psychosexual evaluation is obtained as part of the defense case preparation, it is completely confidential. Only the client and his attorney will be provided with it. Neither the client’s spouse nor any government entity can see the evaluation, unless it is used in court, and the defense attorney will only use the evaluation in court if it is beneficial to the client’s case. The evaluation is occasionally used at trial, but it is more often used during the plea-bargaining stage to improve the client’s case or during a sentencing portion of a trial.

Advice for Clients and Attorneys Regarding Psychosexual Evaluations

Clients should be honest with the therapist because it allows for a more reliable and accurate evaluation, which will be more beneficial to the client’s case. If the client lies or attempts to cheat the tests, the therapist will not be able to provide a good evaluation and may not be able to testify as well on behalf of the client.

Attorneys should provide information the therapist regarding the charges being made against the client (within the limits of discovery laws). Not only does this allow the therapist to factor that into the evaluation, but it also bolsters their testimony in court as they have accounted for the charges and facts of the case already. The stronger and more complete the therapist’s evaluation, the more likely that it will stand up in court against tough cross-examination.

Apr 17
6
Fort Worth Criminal Defense Personal Injury Attorneys

Indecent Exposure: From Class B Misdemeanor to Sex Offender

By | Sex Crimes

Sex Offender Registration for the Offense of Indecent Exposure

Most “sex offenses” in Texas are felonies. Most sex offenses involve some sort of physical contact or an indecent act with a minor. However, there is one offense that is classified as a low-level Class B misdemeanor, than can result in sex offender registration.

Indecent Exposure under Section 21.08 of the Texas Penal Code is a Class B misdemeanor, which means it only carries a range of punishment of 0-180 days in county jail and a fine up to $2,000. Indecent Exposure can range from urinating on a public golf course, to having intercourse in a parked car in a public parking lot, to flashing someone. A person convicted or sentenced to Deferred Adjudication for Indecent Exposure does not typically have to register as a sex offender. If the offense is the first time that person has been charged or convicted with Indecent Exposure, then there is no registration requirement.

10-Year Sex Offender Registration for the 2nd Indecent Exposure Conviction

Under Section 62.005(5)(F) of the Texas Penal Code, a person is required to register as a sex offender for a period of 10 years for “the second violation of Section 21.08 (Indecent exposure), Penal Code.” However, “if the second violation results in a deferred adjudication,” then the person is not required to register. Because the statute uses the term “violation,” instead of “conviction,” a first charge of Indecent Exposure that results in a deferred adjudication still counts toward the total, even if the defendant ultimately has their case dismissed. So it is imperative that a defense attorney negotiate for a deferred adjudication if their client has a previous conviction or deferred for Indecent Exposure.

See what other crimes require Sex Offender Registration in Texas.

Mar 09
5
Passout Blackout Alcohol Memory Sexual Assault Attorney

Passout vs. Blackout: How Alcohol Can Affect Memory (Voice for Defense Article)

By | Sex Crimes

Alcohol and Memory: An Interview with Texas Forensic Psychologist, Dr. Kelly Goodness, Ph.D

Passout Blackout Alcohol Memory Sexual AssaultAs you can probably imagine, many criminal cases involve events that occur when people are intoxicated. This can be especially true for cases involving allegations of sexual offenses. In these alcohol-fueled situations, the issue of memory can play a large part in the case. When we encounter intoxication and memory issues in sexual assault cases, we often employ the assistance of a forensic psychologist to serve as either an expert consultant or expert witness.  One of the best in her field is Dr. Kelly Goodness of Keller, Texas. Dr. Goodness is an expert in alcohol and the brain, including the difference between “pass out” and “blackout” evidence.  She is one of the most highly employed experts for alcohol-related sexual assault cases involving members of the U.S. Military. What follows is an interview that we conducted with Dr. Goodness regarding how alcohol can impact a person’s memory and how it can apply to the sexual assault context.
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Q: Dr. Goodness, How is Alcohol Related to Memory?

A: Alcohol is a potent amnestic agent. Beginning with just one or two drinks, alcohol can produce detectable memory impairments. As the dose increases, so does the potential magnitude of the memory impairments, all the way up to the total inability to recall events during a drinking episode, otherwise known as a blackout.

Q: How does alcohol disrupt memory formation?

A: There are three general processes involved in long-term memory formation, all of which can be impacted by alcohol. First, information must be perceived by one or more of the senses (sight, hearing, taste, smell, and touch) to form a sensory memory which can last a few seconds. Second, if concentrated on for more than about eight seconds, sensory memory can be transferred to short-term memory to be retained. Short-term memory can last from seconds to minutes, depending on distractions and ability to rehearse or repeat the information. Third, once some kind of association or sufficient repetition has occurred; information can be consolidated, encoded and transferred from short-term memory into long-term memory which then makes the information available for later recall.

Alcohol, affects all stages of the memory process, but the primary effect is on the transfer of information from short-term to long-term memory storage. The drinker can recall long-term memories that were established before they became intoxicated, but their ability to transfer information into long-term storage can begin to degrade with just one or two drinks. As the dose of alcohol increases, the impairment increases and can culminate in blackouts. When blackouts occur the individual can participate in complex activities and even very emotionally charged events that they later cannot remember.

Q: You mentioned blackouts. What exactly is a blackout?

A: Blackouts are periods of amnesia, caused by excessive consumption of alcohol, during which a person actively engages in behaviors, but the brain’s ability to create memories for what transpires is impaired or non-existent. This leaves holes in a person’s memory that can range from spotty recall for events of the previous night (or drinking episode) to the utter absence of memory for large portions of an evening. The person is still able to carry on conversations, engage in activities and respond to others. They just will not recall some or all of what occurred.

Q: Are there different types of blackouts that a person can experience?

A: Yes. There are En Bloc Blackouts and Fragmentary Blackouts. Blackouts are classified based on the extent of amnesia. The amnesia can be total (“en bloc”) or partial (“fragmentary”).

En Bloc blackouts are classified by the inability to later recall any memories from the intoxication period, even when prompted or given cues.

  • No matter what happens, you can never recall it.
  • The information was never recorded so recall is not possible.
  • Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed.
  • It is difficult to determine the end of this type of blackout as sleep typically occurs before they end.

Think of a loved one you have known who has Alzheimer’s. They may tell you what they had for dinner and five minutes later tell you the exact same thing. They never recorded the event of initially informing you in the first place, so they tell you again. En Bloc blackouts are essentially the same phenomenon – just with a different cause.

Fragmentary blackouts are characterized by the inability to recall some events from an intoxicated period, but not all events.

  • The person may be unaware that memories are missing until reminded by others of the existence of these “gaps” in memory.
  • Cues can help them remember at least some of what happened because at least some of the information actually was recorded.
  • They may have more snapshot type recall and it may not be in sequential order.
  • Research indicates fragmentary blackouts are far more common than en bloc blackouts and likely involve alcohol-induced deficits in contextual memory.

Q: Is a blackout different from passing out?

A: Yes, they are different. Although many people refer to “passing out” as going to sleep following ingestion of alcohol, when I say “pass out” in my testimony or describing the research, I am referring to the more formal definition as used in the field of alcohol treatment, in which a pass out is a loss of consciousness due to excessive alcohol intake. By definition, blackout and pass out are mutually exclusive: a blackout is amnesia for the events of any part of a drinking episode, without loss of consciousness. A person in blackout continues to interact and perform complex activities, but has amnesia for these events. A person who is passed out is unconscious and is not having any behavioral experiences to record.

Q: Can blackout and pass out co-occur?

A: Yes. Passing out and blacking out can co-occur. Under the right conditions, a person who consumed alcohol to the point of passing out can be awakened from sleep, engage in activities and have a blackout for that time period.

Q: Can you tell if someone is having a blackout?

A: Determining whether someone is in a blackout state from their behavior alone is next-to impossible. To outside observers, the person may appear to be aware and functioning well enough. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or serious aggression, with little or no recall. They can drive a car, have a normal conversation, or engage in sexual relations.

Even loved ones are unlikely to know. We know that the wives of alcoholics who are known to be prone to blackouts may only know their husband was blacked out when he does not recall information the next day.

Research designed to bring about blackouts shows that those who are in the midst of an En Bloc blackout can easily recall things that have occurred within the last 2 minutes, yet they cannot recall anything that occurs during the episode prior to this period.

Q: From your knowledge of the research on this topic, what causes blackouts?

A: Blackouts are caused by the selective effects of alcohol on specific brain systems and involve a breakdown in the production and utilization of proteins and neurotransmitters in the brain. Blackouts can occur from rapid consumption of alcohol, such as guzzling, chugging, or shots and are more likely with consumption of hard alcohol or the combination of hard alcohol and beer, versus beer alone.

Q: Is there a typical Blood-Alcohol Concentration (BAC) at which a blackout is likely to occur?

A: Blackout BAC’s are individual dependent, but we know the blood-alcohol level is typically very high (above 0.25) when a blackout occurs. Some recent studies indicate .28 to .30 as the median BAC at which blackout is likely to occur. Still, a person can experience a fragmentary blackout with a BAC as low as .08 and an en bloc blackout with a BAC of.14 and above. These can only be used as estimates.

Q: Is intoxication level synonymous with blackouts?

A: No. Intoxication depends not only on the blood alcohol level, but on the rate of increase and tolerance of the individual. One may have a blackout without appearing grossly impaired. One may be drunk with poor judgment and control but not blackout. This is why even eye-witnesses may be (and usually are) unaware that a person is having a blackout.

Q: Are there any known risk factors for blackouts?

A: Yes. The following are risk factors typically associated with alcohol blackouts:

  • Drinking on an empty stomach as there is less food to absorb alcohol
  • History of serious head injury
  • Heavy drinker – but to be sure – a blackout can happen with a single drinking episode and naïve drinkers are not immune
  • History of prior alcohol blackouts – past history of blackouts shows the person is vulnerable ad also can produce damage that predisposes the person to future blackouts
  • Genetic predisposition
  • Alcohol in combination with certain common drugs
  • Female

Q: Why are females more vulnerable to memory impairment when drinking?

A: Several reasons.

  • Females typically weigh less.
  • They also have less water in their bodies, which means that they cannot dilute the alcohol as well, which can result in a higher alcohol levels in the brain.
  • Females are more likely to skip meals to save calories when they drink which means there is less food in the stomach to help absorb alcohol.
  • Females are more likely to drink beverages that are higher in alcohol concentration such as wine and mixed drinks rather than beer.
  • Females have less of an enzyme in the gut that breaks down alcohol before it gets into the body. In fact, studies have shown that it takes much less alcohol for women to experience blackouts than for men.

Q: What does research indicate is the prevalence rate of blackouts?

A: Research shows that 50% of college-age drinkers experience blackouts. Further, one in four college students who drink will experience a blackout in a given year. Although blackouts commonly occur with alcoholics, blackouts also occur in 25% of social drinkers.

Q: How can we know if a blackout is real or feigned?

A: It is hard to know. However, we can look at the known risk factors I previously discussed to determine whether the person was at a legitimate risk of experiencing a blackout.

Q: How does a drinker usually know if they passed out or experienced a blackout?

A: The short answer is they often do not know – and they especially do not know for sure given holes in their memory. Passout or blackout experiences are deduced from the circumstances in which the drinker finds themselves once they rouse, or from the information they are provided by others, or a combination of both. Loosing time through passout or a blackout can be very disturbing to an individual.

Once they wake, begin to sober, or are confronted by information from their surroundings or facts alleged by others; the drinker does what we all do all the time – they try to make sense of their situation by filling in the blanks with what seems logical to them. Their efforts may lead them to inaccurate assumptions and conclusions. This can be particularly true when the drinker has personal (i.e., religious, moral, employment) reasons for being distressed by behaviors such as those involving sexual activity.

Q: Can you explain how you would distinguish between a blackout and a pass out?

A: The fact patterns must be considered. If a person is so intoxicated that they are rendered unconscious, it should take significant time to return to normal cognitive and motor functioning. On the other hand, if a drinker was able to get up, communicate generally coherently, engage in physical movement, but later could not recall doing so, a blackout is much more likely.

Q: In a sexual assault allegation, why is it significant that the complainant might have been in a blackout rather than passed out?

A: Many who have experienced a blackout presume they physically and mentally could not have initiated or participated in sexual activity since they have no memory of doing so and may conceptualize themselves as someone who would never engage in sex in that situation or perhaps even with that person. Moreover, the notion they may have engaged in sex may bring them great cognitive dissonance and angst. As such, they may jump to the conclusion that they were passed out which by definition (unconscious) would mean they could not have participated. In reality, those who are in a blackout can, and do, engage in very complex behaviors including initiating and participating in sexual activity they simply will not recall because the memory traces were not encoded. To be sure, a person in a blackout can continue to perform any number of complex behaviors including driving, making purchases, arguing, criminal activity, and importantly – initiating and engaging in sexual activity – making it sometimes vital for fact finders to understand the psychological science related to blackouts.

Q: Thank you for your time, Dr. Goodness. If someone wanted to retain you to review a sexual assault case, how would they go about doing that?

A: They can either email me at kelly.goodness@drgoodness.com or contact my office at (817) 379-4663 and we can go from there.
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As you can see, alcohol can have a significant impact not only in the decisions that a person makes, but also in the way they remember those decisions. In the sexual assault context, this is particularly important because a complaining witness may engage in (and perhaps even initiate) sexual behavior and not remember what he or she did. Without a memory of the night’s events, the complaining witness might mistakenly believe that they were “passed out” when the sexual behavior occurred and that they were taken advantage of by an opportunistic assailant, when in all reality, they were an active and willing participant. Based on their words and actions, others around them, including their sexual partner, would have no idea that the person was experiencing an en bloc or fragmentary blackout.

Thank you to Dr. Kelly Goodness for her time an expertise in preparing this article. Dr. Goodness’s contact information is provided below:

Kelly R. Goodness, Ph.D
Clinical and Forensic Psychology
121 Olive Street
Keller, Texas 76248
www.drgoodness.com
Office: (817) 379-4663

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Brandon Barnett is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. He earned his J.D. from Texas Tech University School of Law and his LL.M. from George Washington University Law School. He is also a military judge in the Marine Corps Reserve and an adjunct professor at Texas A&M University Law School. He can be reached at barnett@bhwlawfirm.com.

Kelly Goodness, Ph.D. began her career as a clinical psychologist at the maximum security forensic hospital in Vernon, Texas. She entered private practice after learning lessons that could never be taught in a book and achieving recognition for her ability to identify and treat the factors that led individuals to be labeled the most dangerous and violent psychiatric patients in Texas. Dr. Goodness developed a thriving practice as a criminal litigation consultant and expert witness who feels privileged to offer her expertise in jury selection, case theory, expert testimony, and case presentation to the parties in state, federal and military cases worldwide with a special focus on homicide and sexual assault.