Dallas Sex Crimes Attorneys

How the Grand Jury Process Works in Texas Sexual Assault Cases

Usually, the defendant in a sexual assault case learns of the accusation before a grand jury formally charges or indicts them. During this period, the defense generally cannot examine the State’s evidence.

Even with limited information, the defense may attempt to prevent the client from being indicted by submitting a grand jury letter. In most Texas counties, prosecutors are willing to provide the defendant’s grand jury letter to the grand jury for consideration as it decides whether to return an indictment. But you must be cautious before taking this step. The downside to presenting such a letter is that the State will then know facts favorable to the defense or how the defense plans to defend the case.

Among the most challenging cases for prosecutors and investigators to handle are those in which a person admits they were so intoxicated that they have little recollection of what happened. Still, the person claims they are sure they would never have consented to have sex with the defendant. Although sex with an intoxicated person is usually grounds for expulsion from college, nothing under Texas law states an intoxicated but conscious person cannot give consent.

In these cases, and other exceptionally weak sexual assault cases, rather than telling the person they are refusing to prosecute, the prosecutors will often make a grand jury referral. Instead of arresting the defendant, the prosecutors will present a summary of the case to the grand jury and then inform the grand jury considering the case that the prosecutor is not requesting that the grand jury return an indictment. Instead, the prosecutor will defer to the grand jury’s decision.

Sometimes, defense counsel and the defendant decide to have the defendant undergo a polygraph examination or “lie-detector” test. If the defendant passes, prosecutors in some counties will permit the inclusion of this passed result with a grand jury letter. Most grand juries are impressed by a passed polygraph examination if the relevant test question conforms to the details of the accusation, and the polygrapher is reputable.

At Broden & Mickelsen, LLP, we use a polygraph examiner based in Dallas with a sterling nationwide reputation. Polygraph examinations are not admissible in a jury trial, and we can only use them during the grand jury process. A properly administered test is said to inaccurately indicate that a defendant is lying roughly 15 percent of the time, and to inaccurately indicate that the defendant is telling the truth about 5 percent of the time. Besides the demoralizing effect of a failed polygraph examination and the cost (usually about $1,500), there is little downside to taking such a test.

Common Defenses in Sex Crime Cases

The State’s case often has one glaring weakness: the State typically must rely solely on the uncorroborated word of the person alleging the sexual assault.

In these cases, the evidence often amounts to “he said, she said.” So, preparing a defendant to testify is critical. Although the judge will instruct the jury at the beginning and the end of the trial that it should not consider the fact that a defendant elected not to testify, it is highly doubtful that jurors are uninfluenced by the defendant’s failure to testify and deny guilt under oath. Naturally, the jury expects a defendant to deny guilt. However, a defendant can also provide a compelling narrative that the sexual encounter was consensual.

The defense must carefully weigh the downsides of testifying. For example, if the defendant has a prior conviction or if the defendant testifying will open the door to the admission of adverse evidence, the costs may outweigh the benefits.

Besides engaging an experienced private investigator and preparing the defense witnesses to testify, the other things we do at Broden & Mickelsen, LLP to prepare for trial will vary from case to case. Often, we employ several tactics, including:

• Consulting with and possibly retaining one or more expert witnesses
• Issuing subpoenas (requiring people to produce evidence they possess)
• Preparing numerous pretrial motions (often challenging the legality of seized evidence, the admissibility of evidence, or the validity of the indictment

What to Expect at a Sexual Assault Trial

A trial starts with jury selection. The judge will give initial instructions to a panel of prospective jurors, and the State will ask them questions for about an hour. The defense then has an equal opportunity to question them. Neither side can discuss the specific facts of the case and must discuss only the law that applies to the case. Usually, a great deal of time is spent talking about the State’s burden of proof.

Typically, some jurors will say something in response to a question that tends to show some bias or favoritism to one side or the other. Each side has 10 preemptive strikes. So, these jurors will likely be struck for any reason (with minimal exceptions) by one side.

Some jurors will take issue with the legal principles governing the case, or they may have some other conflict preventing them from serving as jurors, such as knowing a witness or one of the parties or having an irreconcilable scheduling conflict. These jurors typically will be excused by the judge or by agreement of the parties.

After jury selection, the State will make an opening statement, briefly summarizing the anticipated testimony of its witnesses. The defense then has a right to make a statement. Many defense lawyers decline to give an opening statement. At Broden & Mickelsen, LLP, we believe the defense almost always should make an opening statement (unless there are compelling reasons not to do so). We want to tell the jury as early as possible about the defendant’s answer to the charges.

Next, the State will put on witnesses. Typically, the State will call:

• The accusing witness – The State typically begins with this witness or any eyewitnesses to the events and circumstances surrounding the alleged sexual assault.
• Investigators – The State will want to satisfy the jury that the State did the best it could to gather all the relevant evidence.
• Advocates – In some cases, the State may also call an advocate for sexual assault victims. The advocate will tell the jury that there is no one-size-fits-all reaction to being a victim of a sexual assault.

Many defense lawyers believe they must destroy the complaining witness’s credibility to win the case. Although that is a valid strategy this is not necessarily the case. Aggressive efforts to destroy the credibility of a child witness may fail. Often, the complaining witnesses can be effectively cross-examined by eliciting every favorable fact from them or subtly suggesting problems with the reliability of their testimony. Other cases call for unique or unusual strategies that may result in an acquittal.

Sentencing for Sex Crimes in Texas

If the jury convicts, one of the most challenging things to do is to shift gears and effectively advocate during the punishment phase of the trial. It is difficult for a lawyer to credibly go from passionately arguing the client’s innocence to acknowledging the jury verdicts and arguing for leniency. Moreover, it is difficult for many defendants to discuss this topic before trial. As a result, the punishment phase of the trial is often short.

Many defense lawyers offer little meaningful evidence in this phase. However, an experienced Dallas sex crimes defense lawyer will prepare for any possible outcome.

Depending on the circumstances, a defendant may be able to call effective witnesses, such as:

• Members of the defendant’s family
• Clergy
• Close friends

It may be possible to call a sex offender treatment provider to testify concerning the defendant’s future risk of reoffending. The defense should call a probation officer to testify about potential sexual offender programs for the defendant. Jurors are often surprised to learn that the sexual offender treatment programs for offenders in Texas are rigorous, and recidivism rates are low.

Punishment Ranges for Texas Sexual Assault Cases

Texas law permits a defendant to decide whether the jury or judge will decide their punishment if convicted. The rules differ concerning eligibility for probation or a non-custodial sentence. A jury may sentence a defendant to probation only if the defendant has never been convicted of a prior felony in any state and the offense does not involve a child under 14. Then, if the jury decides to impose a sentence of 10 years or less, the jury can probate the sentence. If the defendant complies with all the conditions of community supervision, the defendant will not have to go to prison.

If the jury is imposing a prison sentence, it may sentence a defendant from 2-20 years for sexual assault, or 5-99 years for an aggravated sexual assault conviction. Nevertheless, these penalty ranges may increase if the person convicted has previous felony convictions. In addition, there is a 25 year minimum sentence for continuous sexual assault of a child.

The potential sentences for these offenses are severe. Experience shows that even first-time offenders, upon conviction, often receive lengthy sentences. If someone is accused of one of these offenses, it is imperative to hire a highly skilled Dallas criminal defense attorney who is experienced in these cases.

What You Need to Know About the Texas Sex Offender Registry

You should be aware that these offenses require registration as a sex offender if a person pleads guilty or is convicted at trial. Sex offender registration is an enormous life handicap for job applications, living arrangements, and personal relationships. Some lawyers encourage clients to plead guilty to sex offenders in exchange for probation. Nevertheless, you must be very careful when pleading guilty to a sex offense. In addition to having to register as a sex offender you will have very onerous “sex offender probations conditions.” These will include therapy and polygraphs. If you fail to admit to the offense during therapy, you can be deemed non-compliant and face the very real prospects of having your probation revoked and being sent to the penitentiary.

Under Texas law, any adult or juvenile sex offender must register their current address with their local city or county law enforcement agency, report any address change, and verify their address periodically. Unfortunately, many people encounter problems after a conviction when they fail to register correctly. Having a lawyer at your side is always crucial if you are charged with failing to register in Dallas or elsewhere in Texas.