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Possession of Child Pornography

Crimes involving child pornography are some of the most serious crimes prosecuted under Texas law. To make the offense even more serious, if multiple images are found during a single search, a separate crime can be prosecuted for each image. In some cases, even the failure to report suspected child pornography is a crime. Even juveniles can be charged with a crime for texting images of themselves to other minors.

Many people in Plano, TX, and the surrounding areas in Dallas or Fort Worth find out about the charge of Possession of Child Pornography when law enforcement officers descend on the home or business to execute a search warrant. If you are under suspicion for any offense related to the promotion or possession of child pornography, then don't talk to law enforcement until after you have retained an experienced criminal defense attorney to help you.

Attorney for Possession of Child Pornography in Plano, TX

If you were arrested for or charged with possession of child pornography under the Texas Penal Code, Section 43.26(a), then contact an experienced criminal defense attorney at Stuckle & Associates PLLC. We represent clients throughout Plano, TX and the surrounding areas in Dallas and Fort Worth.

Call (972) 423-4405 to discuss your case today. During the initial consultation, we can explain the charges, potential penalties and punishments that apply, and defenses to the charge. Let us put our experience to work for you.


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Elements of Child Pornography Possession

Possession of Child Pornography under Penal Code Section 43.26(a) can be charged as a third-degree felony. The elements of the possession of child pornography under Penal Code Section 43.26(a) include:

  • The defendant acted intentionally or knowingly

  • The defendant possessed or accessed with intent to view visual material(s)

  • The materials visually depicted a child younger than 18 years of age at the time the image of the child was made

  • The materials visually depicted the child engaged in sexual conduct

If applicable, the criminal charge can be for a person who engages a child in sexual conduct as a victim of trafficking, and the person knows that the material depicts the child was engaging in sexual conduct.


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Definitions under the Texas Statute for Child Pornography Possession

The term “child” is defined as a person younger than 18 years of age.

Under the child pornography statute, the term “sexual conduct” is defined to include;

  • Sexual contact

  • Actual or simulated sexual intercourse

  • Deviate sexual intercourse

  • Sexual bestiality

  • Masturbation

  • Sado-masochistic abuse, or

  • Lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola

The term “visual material” is defined to include any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide, or any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.


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Defenses to Child Pornography Possession under Texas Penal Code Section 43.26(a)

Defenses to child pornography charges often focus on whether the person accused acted intentionally, or with intent, with respect to the nature of his or her conduct, or a result of his or her conduct. At trial, the prosecutor will attempt to prove that it was the defendant's conscious objective or desire to engage in the conduct or cause the result.

The prosecutor must prove in these cases that the defendant acted knowingly, or with knowledge, with respect to the nature of his or her conduct or to circumstances surrounding his or her conduct when he or she is aware of the nature of his or her conduct or that the circumstances exist. Texas law provides that a person acts knowingly or with knowledge with respect to the possession of child pornography when he or she is aware that his or her conduct is reasonably certain to cause the result.

In child pornography possession cases in Texas, the prosecutor can prosecute a defendant for possession of child pornography for each item of pornography the defendant allegedly possessed, even if all the items are seized from one search. (See Vineyard v. State, 958 S.W.2d 834 (Tex.Crim.App. 1998)).

The child pornography statute in Texas did not unconstitutionally place the burden on the defendant to show that the parties depicted were not children. Instead, the courts have found that the statute merely permitted the defendant to counter the State's evidence with evidence that the child depicted was 18 years or older. (See Webb v. State, 109 S.W.3d 580 (Tex.App.-Fort Worth 2003, no pet.)).


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Affirmative Defenses to Child Pornography Possession

Texas law provides for several different affirmative defenses to prosecutions for child pornography including:

  • The defendant was the spouse of the child at the time of the offense

  • The conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose, or

  • The defendant was not more than two years older than the child

If the jury at trial finds that the defendant proved one of the affirmative defenses by a preponderance of the evidence, then the jury should return a "not guilty' verdict at trial.


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Finding an Attorney for Child Pornography Possession in Plano, TX

If you were accused of intentionally or knowingly possessing child pornography under Penal Code Section 43.26(a) in Plano, Texas, or the surrounding areas in Dallas or Fort Worth, then contact an experienced criminal defense attorney at Stuckle & Associates PLLC.

We have represented clients on a variety of child pornography charges, including the failure to report images, possession and promotion. Call us today at (972) 423-4405 to discuss the case. Let us put our experience to work for you.


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