Continuously Trying

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Saturday, October 10th, 2015
Continuously Trying

Recently, I had a Continuous Sexual Abuse of a Young Child case in County A, Texas, which was outside of my home base in Austin, Texas. In the first of the “Sexual Abuse” allegations (as defined by Tex. Penal Code Ann. §21.02) in the indictment, (Exhibit A), it was undisputed that the alleged act was for an offense that occurred wholly in County B. The second allegation in the indictment (+30 days later with the same young child) was claimed to have taken place in County A. The indictment did not differentiate or allege where either act allegedly took place, other than the boiler plate language, “in the County and State aforesaid . . .”

I attacked the indictment on the grounds that County A did not have venue because both of the acts did not occur in County A. Not finding any direct authority for my claims, I scrambled and filed the following to support my position:

1.   A Motion to Quash the Indictment
2.   A Plea in Bar
3.   A Memo in Support

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Predictably, the State opposed all of my efforts. Predictably, the Judge in County A ruled in the State’s favor.

The generous offer prior to my efforts was for the 25-year minimum, which we rejected.

We had prepared a decent defense. The child’s mother, my client’s wife, was on his side. He had a good job and no prior felony convictions. The alleged victim was the Defendant’s troubled step-child, who was not living full time at the home of her mother and my client. Two other step-children, who resided with their mom and my client, were also on our side. So was our hired-gun expert, a noted psychologist. That said, these cases are always difficult to win. High reward-high risk.

On the brink of trial, the offer came down to ten years deferred adjudication on an Indecency with a Child. Although not discussed, the reduced plea offer was thought to be, in part, be­cause we had created a colorable claim for appeal—i.e., challenging County A’s venue, based on an act alleged to have been committed in County B.

Unfortunately, we were between the proverbial rock and a hard place (no pun intended). If my client plead to the single County A charge, this could and would be used as leverage and evidence in a subsequent charge of Indecency with a Child, or Continuous Sexual Abuse of a Child, in County B. Ironically, the child’s original outcry would have given rise to proper venue in County B for the offense of Continuous Sexual Abuse of a Young Child, because the alleged victim claimed the sexual abuse acts happened “like once a month.” Obviously, I never pointed this out to the County A prosecutor.

Although I thanked the County A prosecutor for the new offer, I explained that I/we could only accept the offer if we could get an agreement from County B not to prosecute my client on the County B allegation. No County B charges were pending at the time. I also insisted (politely), that the County A prosecutor approach/contact the County B prosecutor with this proposition, as I felt like the County B prosecutor would probably hang up on me midway thru my request.

I was pleasantly surprised when County B agreed to forego their prosecution if we entered a plea in County A. Quietly, we were prepared to accept a 12.45, or another ten-year deferred to run concurrently. I do applaud the efforts of the prosecutor in County A for working through these complications.

Ultimately, I advised my client to accept the deal. He would be guaranteed not to face prison time, only a difficult probation and registration as a sex offender. He would not have to deal with a trial in County A or B, and possibly an appeal or two. This article does not address the sticky question of whether he would have a claim of double jeopardy in County B if he was to be acquitted of the continuous charge in County A.

Although all of this was somewhat complicated for a layperson to understand, I know my client got it. He certainly understood the freedom and expense side of the equations. We really did have a chance to win, but of course, we will never know. You rarely get to trial on your best cases in our business. Sometimes, the best battles are in pretrial. It is not about us, it is about our clients. Happy hunting!

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