X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Two brothers and a friend worked for the appellant doing household chores such as yard work, painting and bathing the appellant’s dogs. The appellant routinely offered to take the boys to dinner and a movie if they bathed in the guest bedroom. The boys took several showers during the months they worked for the appellant, despite the fact that there was no shower curtain. After discovering pornography on the appellant’s home computer, the boys went to the sheriff’s department. An investigation began, and a search of the appellant’s house yielded child pornography on the appellant’s computer and also revealed that he had been secretly videotaping the boys’ showers through use of a camera hidden in a digital clock in the bathroom. Each boy testified at trial that he masturbated frequently while in the appellant’s shower. Each, however, made it clear that the appellant never offered him money to masturbate in the shower, never encouraged him to do so, never threatened or coerced him into doing so and never asked him to do so. The boys testified that they did not know of the videotaping and that it was done without their consent. The appellant was charged with, and convicted of, nine different charges three charges relative to each of the three boys. In each of three indictments, one per boy, the state brought one count of inducing a sexual performance by a child (count I), one count of producing or promoting a sexual performance by a child (count II) and one count of possession of child pornography (count III). Overruling the appellant’s motion to sever the offenses, the trial court proceeded in a single prosecution. The appellant pleaded guilty to the three counts of possessing child pornography. A jury found him guilty of the three charges of inducing a sexual performance by a child and of the three charges of producing or promoting a sexual performance by a child. For each conviction of inducing a sexual performance, the appellant was sentenced to 20 years for a total of 60 years’ confinement. For each production conviction, he was sentenced to 10 years, a total of 30 years. Finally, for the three convictions for possessing child pornography, he was sentenced to a total of 10 years. The trial court stacked the sentences, resulting in a combined sentence of 100 years. HOLDING:The court reverses the trial court’s judgment of conviction and renders a judgment of acquittal as to count I in each indictment. Deciding that it cannot disregard the trial court’s error in its failure to sever each count III pursuant to the mandatory severance provision of Texas Penal Code 3.04(a), the court reverses the convictions as to each count II, severs each count III from the associated count II and remands the cause for a new guilt/innocence trial on each count II and a new punishment trial on each count III. A person commits an offense if, knowing the character and content thereof, he or she employs, authorizes or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance. Texas Penal Code 43.25(b). The Corpus Christi Court of Appeals addressed the limits of the term “induce” as used by 43.25(b) in Dornbusch v. State, 156 S.W.3d 859 (Tex. App. Corpus Christi 2005, no pet.). That court determined that 43.25(b)’s use of the term “induce” was not unconstitutionally vague as applied to that defendant’s alleged conduct. The record showed that the defendant in that case held a position of authority at the complainant’s school, that he provided the complanaint with alcohol, that he took her to a motel out of town during the school day and that he made unsolicited sexual advances while at the motel Jacuzzi. Since the complainant was supposed to be at school and was, instead, miles away having consumed alcohol, the court concluded the defendant had put her in a position in which she found it almost impossible to deny a sexual advance. Such conduct, held the Corpus Christi Court of Appeals, fell within the common understanding of the term “induce.” The court concludes that, in this case, the evidence was legally insufficient to prove that the appellant induced the boys to masturbate. “[The defendant's] inducement must relate to the specific sexual conduct at which the statute is aimed. That is, inducing the boys to take a shower does not violate the statute. Indeed, it is the masturbation that satisfies the sexual conduct element of the offense. It is this specific conduct which must be induced in order to violate the statute.” Before trial, the appellant responded and filed a motion to sever count III from counts I and II in each indictment. After hearing arguments, the trial court denied the motion to sever and allowed the state to proceed on the consolidated causes. The court concludes that the appellant was entitled to mandatory severance of count III from counts I and II in each indictment. The court finds that substantial rights � the presumption of innocence and the right to a fair trial on count II of each indictment � were most likely compromised by the trial court’s failure to sever each count III. The court reverses and remands for a new trial as to each count II. OPINION:Morriss, J.; Morriss, C.J., Ross and Carter, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.