Possession or Promotion of Child Pornography

Generally, Texas courts are following federal precedent with regard to possession or promotion of child pornography offenses.  But the Texas Penal Code sections that apply to these offenses, §43.25  and §43.26, include very general language that can easily be interpreted in a number of ways.  For example, section 43.26 of the Texas Penal Code states that, for a person to be guilty of possession of child pornography, he or she must “knowingly or intentionally possess 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.  Section 43.25 of the Texas Penal Code goes on to define “sexual conduct” as essentially any type of sexual act or “lewd exhibition of the genitals.”  But the penal code fails to discuss whether voyeuristic videos and/or photos fall within the definition, and leaves such an interpretation up to the jury.

If you or a loved one is facing a possession or promotion of child pornography charge, contact Dallas Criminal Defense Attorney Chad West  NOW at (214) 509-7555!

In general, Texas courts have used these factors (appropriated from federal case law) to consider whether the photograph or video would be considered “lewd exhibition of the genitals”

(1) the focal point of the visual depiction is the child’s genitalia;

(2) the place or pose of the child in the photograph is sexually suggestive;

(3) the child is depicted in an unnatural pose or inappropriate attire;

(4) the child is fully or partially clothed or nude;

(5) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and

(6) the visual depiction is intended or designed to elicit a sexual response in the viewer.

Some federal courts have been willing to expand beyond this list and include a level of subjectivity that defines “lewd exhibition of the genitals” to be anything that the photographer sets up towards his “fellow pedophilic audience” with the intent of eliciting a sexual connotation.

Contact the Law Office of Chad West to discuss the specifics regarding your case.