Charged with Sending and Receiving Explicit Photos in Texas?
The term “sexting” is used to describe the sending of sexually explicit messages, usually between mobile phones. While this can oftentimes be consensual behavior between adults or teenagers, Texas criminalizes the practice of sexting.
Depending on the ages of the parties involved, a person convicted for electronically transmitting material with sexual conduct can result in fines and possible imprisonment. Adults who send explicit messages to minors can be subject to very aggressive prosecution.
If you have been arrested for allegedly sending messages with sexual conduct to a minor, it is critical that you speak to a skilled child sex abuse lawyer right away. The sex crime defense attorneys at Dunham & Jonesover 200 years of combined legal experience handling various alleged sex crimes, and they fight on behalf of clients throughout Texas. Our firm can review your case when you call 800-499-8455 or fill out our online form to set up a free, confidential consultation.
How Would a Person Be Charged With a Sexting Offense?
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Adults and minors can be subject to different criminal penalties for sexting, but either group can face significant consequences. These charges can be impacted by previous violations and whether attempts at solicitation or distribution were involved.
In Texas statutes, the term “promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same. Wholesale promote means promote for the purpose of resale.
State charges that are specific to minors include:
- Electronic Transmission of Certain Visual Material Depicting Minor, Texas Family Code § 43.261 — This is a Class C misdemeanor if a person younger than 18 years of age intentionally or knowingly:
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- Promotes by electronic means to another minor visual material the alleged offender produced or knows that another minor produced depicting a minor—including the alleged offender—engaging in sexual conduct. This offense is a Class B misdemeanor if the alleged offender either promoted the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another party, or was previously convicted one time of promoting or possessing material depicting a minor engaging in sexual conduct. This is a Class A misdemeanor if the alleged offender has been previously convicted one or more times of promoted the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another party, or convicted two or more times of promoting or possessing material depicting a minor engaging in sexual conduct.
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- Possesses in an electronic format visual material the alleged offender produced or knows that another minor produced depicting another minor engaging in sexual conduct. This offense is a Class B misdemeanor if the alleged offender has been previously convicted one time of promoting or possessing material depicting a minor engaging in sexual conduct. This is a Class A misdemeanor if the alleged offender has been previously convicted two or more times of promoting or possessing material depicting a minor engaging in sexual conduct.
In certain cases, minors may also be subject to some of the criminal charges that adults face in sexting cases. These criminal offenses include:
- Possession or Promotion of Child Pornography, Texas Family Code § 43.26 — It is a third-degree felony if a person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, 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, including a child who engages in sexual conduct as a sex trafficking victim. It is a second-degree felony if a person knowingly or intentionally promotes or possesses with intent to promote 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, including a child who engages in sexual conduct as a sex trafficking victim. An alleged offender who possesses visual material that contains six or more identical visual depictions of a child engaging in sexual conduct is presumed to possess the material with the intent to promote it.
- Obscenity, Texas Family Code § 43.23 — It is a state jail felony if an alleged offender, knowing its content and character, wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device. This is a Class A misdemeanor if an alleged offender, knowing its content and character, promotes or possesses with intent to promote any obscene material or obscene device, or produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to its obscenity. An alleged offender who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same. Either one of these offenses can be classified a second-degree felony if the obscene material visually depicts activities engaged in by either a child younger than 18 years of age at the time the image was made, an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age, or an image created, adapted, or modified to be the image of an identifiable child.
- Online Solicitation of a Minor, Texas Family Code § 33.021 — It is a third-degree felony if an alleged offender 17 years of age or older, with the intent to arouse or gratify the sexual desire of any person, intentionally communicates in a sexually explicit manner with a minor or distributes sexually explicit material to a minor over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service. This criminal offense is a second-degree felony if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. It is also a second-degree felony if the alleged offender, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the alleged offender, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the alleged offender or another person.
What Are the Possible Penalties for a Sexting Conviction in Texas?
The possible consequences of a conviction for sexting offenses in Texas can be quite severe. In addition to possibly having to register as a sex offender for several years or maybe even life, an alleged offender also faces the following sentencing punishments, depending on the classification of the crime:
- Class C Misdemeanor —Fine of up to $500
- Class B Misdemeanor — Up 180 days in jail and/or fine of up to $2,000
- Class A Misdemeanor — Up to one year in jail and/or fine of up to $4,000
- State Jail Felony — Up to two years in jail and fine of up to $10,000
- Third-Degree Felony — Up to 10 years in prison and fine of up to $10,000
- Second-Degree Felony — Up to 20 years in prison and fine of up to $10,000
- First-Degree Felony — Up to 99 years or life in prison and fine of up to $10,000
Are There Any Defenses Against Sexting Charges?
Some of these statutes allow for affirmative defenses in which the alleged offender can legally justify his or her allegedly criminal actions. Some affirmative defenses include:
- Electronic Transmission of Certain Visual Material Depicting Minor — The visual material depicted only the alleged offender or another minor who is not more than two years older or younger than the alleged offender and with whom the alleged offender had a dating relationship or was the spouse of the alleged offender at the time of the offense, or the material was promoted or received only to or from the actor and the other minor.
- Possession or Promotion of Child Pornography — The alleged offender was the spouse of the child at the time of the offense, is not more than two years older than the child, or the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose.
- Obscenity, Texas Family Code — The alleged offender possessed or promoted alleged material or device for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.
- Online Solicitation of a Minor — This statute states that it is a defense to prosecution that, at the time conduct, the alleged offender was married to the minor or not more than three years older than the minor and the minor consented to the conduct.
If an affirmative defense is not applicable in your case, you may still be able to utilize another defense that could possibly include, but is not limited to:
- Entrapment
- Illegal search and seizure
- Lack of evidence
- Mistaken identity
- No criminal intent
Contact a Lawyer at Our Firm Now for Legal Defense Against Sexting Allegations
Are you under investigation for or have you been arrested for allegedly sexting a minor in Texas? If so, you will need the help of an experienced child sex abuse lawyer as soon as possible. Our sex defense attorneys work tirelessly to help clients throughout Texas. Call 800-499-8455 or fill out our online form right now to have our firm review your case during a free legal consultation.
