Ok...bear with me, folks. Joe rents a room in a house from Bob. Joe leaves town for a couple of months and tells Bob's daughter's boyfriend that he is welcome to use Joe's computer while he's gone. Guess what's on the computer????? Well, apparently, Joe has a digital camera hidden in the common bathroom in the house. On the computer are digital pics of Bob's wife and daughter (adult) in all their nakedness. Is there a chargeable crime here? I'm trying my darndest to come up with something. Has anyone been faced with a similar situation?

Have you looked at the new section 21.15 Improper Photography or Visual Recordings law?

Before that law existed, we used possession of a criminal instrument, making the camera a criminal instrument. It was a little tricky deciding the crime the defendant intended to commit with the criminal instrument, but the defendant agreed to plead with the intended offense being possession of child pornography.

[This message was edited by John Bradley on 07-03-02 at .]

Kristi, if you go forward with a prosecution for "Improper photography or video recording", let me know how it turns out -- some of the legislative sponsors of that bill just asked me last week if anyone is using it.

And if anyone else has tried it, drop me a line at edmonds@tdcaa.com and let me know how it's working out.

Thanks for the help. I guess this shows me that I need to pay closer attention to legislative updates!

I have a case where the defendant had hidden cameras in a bathroom and bedroom. He then would let daughters of a very, very close family friend (treated him like an uncle) of his spend the night or just hang out in general at his house. I now have 66 total criminal episodes of children taking showers or in some sort of undress or just using the toilet. To my great dismay, the only thing I can figure to charge him with is this state jail felony! To make matters worse, the defendant would go back and edit the continuous tapes onto one tape with each episode one after another. To make matters even worse, this is the very type of actions that should require the defendant to register as a sex offender but to no avail!! I will be emailing Shannon Edmonds about my situation, so she can tell the legislators, that are so interested in the use of this statute, the absurdity of this statute.

Try him on 3 or four cases and stack them. You have slam dunk cases. Granted, its not the most judicially economical way to do it, but you will get some decent time. Perhaps the statute should raise the ante to third degree felony for a course of conduct like this one.

This is dicey, but you can think about it. Maybe you could get a stacked state jail plea if a defendant were looking at this?

Check our Section 43.25, Tx.P.C., Second and Third Degree felonies. The objection from the defense would be that the specific offense in Section 21.15, Tx.P.C. controls over the general offense, but ... appellate issue.

"Producing", "promoting" and "inducing" sexual conduct in a child which you record is the nature of the offense. Before getting too far into this, read Garay v. State (App. 4 Dist 1997) 954 S.W.2d 59 which reads "inducing" much more narrowly than I believe is fair, but does let one two count with "producing". This line of thought as expressed in Garay is why we have Section 21.15.

What the child intended or did or knew is not an elememnt in my opinion. In my opinion a pervert could use sleeping baby of six months of age to be the object and the offense committed. Intent of the photographer, not the child, is the issue. Alexander v. State, 906 SW2d 107 (App.5 Dist. 1995).

The offense can be committed by inducing a child to engage in "sexual conduct". Permitting or causing the visit knowing that the child will have to strip and engage in the conduct complained of in an area you know you can photograph - that is inducing in the sense of a dictionary definition in that you create circumstances that insure she will engage in the conduct you seek to photograph. There is no statutory definition. Other statutes like the one about gang membership use "induce", but ...
In the Garay case cited above the court used a limited Webster's definition, i.e. "to lead on: move by persuasion or influence." It is what they chose to use, I like Black's Law Dictionary defintion, "To bring on or about, to affect, cause, to influence to an act or course of conduct, lead by persuasion or reasoning, incite by motives, prevail on." Your victim was certainly "induced" in that she was influenced in a course of conduct and caused to disrobe in front a camera your suspect set up. One can be influenced without being aware of it. The American advertising industry is built on this concept - why does a nation wide cola company pay movie production companies to have the star at a hotdog stand drink a beverage out of a cup with their logo on the cup facing the camera? However, the court in Garay may be right and the fall back position is the third degree "promoting (i.e.manufacture since he edited the tape) or producing"

There is the option to charge "produces, direct, or promotes a performance" ...

"Lewd" is in the eye of the beholder, Rosie v. State (App. 3 Dist. 1999) which went right on up to the Supremes in D.C. An innocent child incapable of understanding lewd, much less intentionally acting lewd can be the subject of a lewd photograph. Look at your photos, tapes, etc.? Would 12 out of 12 jurors find the depiction of the body lewd?

As with anything in Chapter 43, it is complex ...

Good luck.

We are filing an appellate brief today in case a lot like yours. Our appellant set up a hidden camera in his bathroom to film foreign exchange students. (This offense took place before 21.15 went into effect.) He was convicted (after pleading guilty) of Sexual Performance by Child 43.25(b) and was given several stacked 17 year sentences.
He is mainly complaining on appeal that "lewd exhibition of the genitals" is unconstitutionally vague as applied to his videos.

[This message was edited by david curl on 08-26-02 at .]

How do you prove lewd exhibition when target of the videotaping were presumably doing innocent bathing, etc?

The short answer is that since he pled guilty to the jury sufficiency of the evidence is off the table. Longer answer is that the camera was focused primarily on the girls' torsos with their heads and legs mostly excluded. It also wasn't just bathing.

That is where the case cited above and others that say it is not what the child in picture is trying to do, it's is what the maker or possessor of the picture is feeling that is the issue - art vs. pornography - both can involve depiction of nude humans. What is perceived by the viewer, not the model ...

The child doesn't have to believe that he or she is being lewd for it to be an offense.