Articles Posted in Criminal Appeals

Mark Bennett runs my favorite Texas defense lawyer blogs, Defending People. Mark has been arguing that part of the Texas law regarding Online Solicitation of a Minor is unconstitutional since 2008. Today, the Court of Criminal Appeals agreed and ruled 9-0 that part of the statue, 33.021(b)(1) is a violation of the First Amendment. Congrats to Mark. Let’s look at the opinion.

Online Solicitation of a Minor- What’s the law? 

The statute is a mess to read, so I’ll summarize. Basically, a person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service  communicates in a sexually explicit manner with a minor; or distributes sexually explicit material to a minor, or knowingly solicits a minor to meet with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse.

Corey Freeman had a bench trial and was convicted of online solicitation of a minor. Corey challenged the law as being unconstitutional for two reasons. One, was that he claimed the law was a strict liability offense in that there was no requirement that he actually believe he was talking to a 13 year old, and second that the statute infringed on his first amendment. The Dallas Court of Appeals disagreed, which is not surprising, almost every conviction and statute is upheld on appeal. This is Texas after all. On a side note, it’s the exact opposite situation for civil appeals, where judgments for plaintiffs are routinely thrown out to better serve our corporate overlords. But that’s a story for another day. Let’s take a closer look at Freeman vs. State.

Facts- Freeman was in a chat with a person identified by the screen name of “brook_chick13.” BrookChick13 stated in communications to Freeman that she was a thirteen-year-old girl. I’ll quote from the opinion here.

Their conversations, over the span of several months, gradually escalated in sexual explicitness. During the correspondence, appellant mentioned wanting to take the girl’s clothes off, kissing her, pulling off her pants and licking her, and “sliding into” her–all the while being reminded by her that she was only thirteen years old. In actuality, appellant was communicating with a male police officer.