A Williamson County Online-Solicitation Indictment

In the name and by authority of the State of Texas:

The Grand Jury for the _______ term of the ___ Judicial District Court of Williamson County, Texas, having been duly selected, empaneled, sworn, charged, and organized, presents that before the presentment of this indictment, on or about the ___ day of ____, 2013, in Williamson County, Texas, X, hereinafter “defendant”, with the intent to arouse or gratify the defendant’s sexual desire, over the Internet, knowingly solicited Jessica, a minor and undercover persona of Gary Marquis, to meet the defendant with the intent that Jessica would engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the defendant, and Jessica was an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.

Against the peace and dignity of the State.

Got it? The State is charging X with committing online solicitation of a minor with Jessica, who is “a minor,” an “undercover persona of Gary Marquis,” (who is presumably a cop), and “an individual whom the defendant believed to be younger than 14 years of age at the time of the commission of the offense.”

“Minor” means: (A)  an individual who represents himself or herself to be younger than 17 years of age;  or (B)  an individual whom the actor believes to be younger than 17 years of age.

“Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

Jessica, a “persona” of Gary Marquis, is not alive, and therefore is not an individual, and therefore is not a minor. So the indictment on its face does not charge X with a crime. The appropriate way for the State to charge the crime would be to allege that X solicited Gary Marquis, whom X believed to be younger than 14 years of age.

Unfortunately, X pled guilty to this non-crime. His lawyer should have filed a motion to quash the indictment, forcing the State to replead.

Why would this do any good? Why—in other words—would the State want to rely on its incorrect pleading?

Because there’s a defense built in to the online-solicitation statute that would prevent X’s conviction for soliciting Gary Marquis:

It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed…the actor was not more than three years older than the minor and the minor consented to the conduct.

If the minor (the living person whom X believes to be younger than 17) is Gary Marquis, then X is not more than three years older than the minor. The transcripts of conversations between X and Marquis will show that Marquis consented to the solicitation—Marquis was trolling for solicitation.

It cannot be argued that the age of the minor referred to in the defense is the age that the defendant believed the minor to be: the Texas Legislature in subsection (f) of section 33.021 showed that it knows the difference between the age of the minor and the believed age of the minor:

[Online solicitation of a minor] is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

X has an excellent ineffective-assistance-of-counsel claim against his trial counsel, who didn’t consider the existence of the defense. But even an excellent IAC claim is a long shot. Nobody should take deferred-adjudication probation in hopes of getting relief on habeas corpus. Other defendants charged with online solicitation in Williamson County (or other counties that use the same pleading form) should talk to their lawyers about the indictment and the defense before they decide to plead guilty. And their lawyers should, of course, talk to me.

5 responses to “A Williamson County Online-Solicitation Indictment”

  1. Interesting. But when you ask their lawyers to talk to you is that an on line solicitation? : -)
    Given your expertise in this area, they should talk to you. Robb

  2. The quality of representation people get from many “criminal defense attorneys” is absolutely appalling. We don’t use indictments in FL for non-capital offenses, we are an information state. In NC we did use indictments. I saw a lot of attorneys plea their clients to defective indictments because a) they didn’t know any better; b) it was a court appointed case and the attorney was not willing to go to a trial for $75 per hour or c) the attorney figured the state would just fix it. All of the above is a result of a “plea bargain” mentality which is pervasive in criminal defense. Some attorneys just are not willing to try cases. I know one attorney who has been “practicing criminal defense” for close to 10 years with zero trials. The state doesn’t have to be careful because all of her cases end with a plea.

  3. Very interesting. Wouldn’t a lawyer who does his due diligence — reviewing the charged statutory offense, looking for reported cases involving the statute, etc. — be able to spot the problem with this indictment? Or is this a specialized area of criminal law that requires deep knowledge and experience? (Sort of like comparing, say, Title VII law with ERISA law; the first should be within the competence of any careful lawyer, but the second ordinarily should be left to experts.) In other words, do you think this oversight more likely was due to lack of expertise or lack of proper legal analysis? Perhaps this lawyer simply assumed his client was (or would be found) guilty, so why fight the charge?

  4. I am on probation from Williamson County for the same charge. My public defender did not even let it get to the indictment. He used my dying mother to convince me to plea guilty after spending 4 months in county. She passed away 2 months after I was released.

    It was not not till after I got out of jail I was told by my mother that she never told him to ask me to plea out. She wanted me to fight it to trial.

    If only all lawyers had the strong ethics of Mr. Bennett the world would be a better place.

  5. I took on a case like this–except that the undercover officer never said he was 13–until after the arrest. Like Charles, the public defender did no work, just coerced the young man to plead guilty. Now he is a Registered Sex Offender. I hope to get the conviction vacated (sse Michaels-story at http://www.AccidentalFelon.net).

    It took many hours of research for me to do this because it was not an area of law familiar to me. Obviously, the public defender was not inclined to do the work. This is another cause of wrongful convictions–incompetent or lazy lawyers.

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