Do you think a picture has to be produced in order to successfully prosecute this case at trial?

My case (briefly). 15 year old girl wearing a mini-skirt at Wal-Mart sees creepy guy looking at her. She is alone in an isle with him. When she turns to ignore him he brushes into her causing her to drop what she had in her hand. She kneels / bends over to pick it up and sees a hand between her legs with a camera phone and hears a click. She starts crying and finds a Wal-Mart employee. He is found leaving the store and is detained until the police arrive. Search of Defendant's phone and there is no up skirt picture of her.

Do I need to produce a picture at trial or is his acting of taking the picture and her hearing click enough? What's to stop the defendant from erasing the pictures every time he gets caught before a police officer arrests him and takes his phone into custody?

Thanks in advance,

Alton

The absence of a photo suggests you have an attempted crime. Jury might believe he deleted it. Perhaps there is a tampering with evidence felony case. Can't forensics recover it? We had a case like that and plead it as a misdemeanor attempt.

How are you going to prove he did it or, unless deleted photos can be retrieved from cell phones as JB advised to look into, that there was even evidence to be tampered with in the first place?

Through the words of a scared 15-year old girl.

Subpoena the surveilance video from Wal-Mart

Surveillance video helps, but you still have to prove PHOTOGRAPHY. If there's no photograph taken, there's no crime (execept maybe attempt). The surveillance video might just show him bending over doing something creepy. I think your only hope is if you're able to retrieve a deleted image off the phone, forensically.

Thank you all for your input. I have the video from Wal-Mart and it captures the defendant with his cell phone flipped open and what appears to be him taking a picture between her legs. Her testimony, the video, and the potential door opening to the fact that the defendant has done this several more times at the same Wal-Mart, I am inclined to see what the jury will do and then how the record looks for the appeal. I've read every opinion from the Texas appellate criminal courts concerning 21.15 and I do not believe the courts have considered the issue yet.

Great work. That is a case worth pursuing. At the worst, you get an attempted improper photography conviction. They are going to hate the defendant.

I was just browsing for some CLE dates and saw this website carried the story concerning this case. The defendant ended up pleading open a month or so ago and a PSI was ordered. After a hearing where the now 16 year old and her mother testified, the defendant and his wife testified, the judge gave the defendant straight pro 2/5 with sex offender caseload and 90 days cop upfront. The victim and her mother were very pleased.

Thanks for the follow-up! So many of these threads never finish with the rest of the story; I wish more posters would follow suit (hint hint!).

Offer the follow-up poster a free TDCAA set of dominos.

I think we're out.

How about some "Get Out of Jail Free" cards for use in Williamson County?

Maybe Ken Sparks could kick in a few free caps instead.