Facing a sexual offense charge anywhere in Texas, and especially in ultra conservative cities like McKinney, Plano, Allen, Dallas, Denton, Frisco, Ft. Worth, and Rockwall, is a life-changing, terrifying matter. Texas law provides severe penalties for those convicted of sexual offenses, like aggravated sexual assault, sexual assault of a child, indecency with a child, and continuous sexual abuse of a child.
Some sexual crimes against children carry minimum prison terms; some are set at 5 years minimum (like aggravated sexual assault of a child, TX Penal Code Section 22.021), and others at 25 years minimum (like continuous sexual abuse of a child, TX Penal Code Section 21.02, or if the child was younger than 6 years of age at the time of the offense, TX Penal Code 22.021 (f)(1). Many sexual crimes against children also carry up to life sentences.
For some sexual offenses, but not all, deferred adjudication is an option. Deferred adjudication means that the court “defers” finding the accused guilty of a crime and places him on probation (also known as “community supervision”). If the accused successfully completes deferred adjudication probation, even for a sexual offense, the court dismisses the indictment and the accused can honestly say that he was not convicted of the crime.
The flip-side of the deferred adjudication coin is that if the court revokes probation, the accused faces the full range of punishment. For example, someone on deferred adjudication for the first degree felony offense of aggravated sexual assault faces the full range of punishment if revoked, which is 5-99 years or life in prison.
Even when the accused receives and successfully completes deferred adjudication for a sexual offense, the fact that he pleaded guilty to a sex offense and received probation remains on his record forever. Texas law does allow for some criminal records to be non-disclosed (or sealed from public view) after successful completion of deferred adjudication; however, that is not an option for sexual offenses which are specifically excluded in the non-disclosure statue. See Texas Government Code Section 411.074(b).
In a nutshell, non-disclosure of criminal records means that public agencies, like the police, district attorney’s offices, Texas Department of Public Safety, jails, district and county clerk’s offices, probation departments, etc., will not disclose information about the charge to the public. These agencies remove the case information from their websites. But, those agencies retain the records, and if the person commits a new offense, the non-disclosed charge can be used against him in the prosecution of the new charge.
If non-disclosure isn’t available for sex offenses in Texas, then why I am mentioning it here? Because sometimes, after thoroughly preparing a defense and being ready for a jury trial, prosecutors agree to reduce sex offenses to other types of offenses for which an order of non-disclosure could one day be obtained. For example, someone charge with aggravated sexual assault might reach an agreement with the prosecution to plead guilty or “no contest” to a lesser charge, like aggravated assault. Texas law allows for non-disclosure of aggravated assault charges if the accused meets certain conditions, like successfully completing deferred adjudication probation and not getting any new charges.
So whether deferred adjudication is a better option than going to a jury trial is always case specific. A cookie-cutter approach simply doesn’t work in serious cases, especially those involving accusations of sexual assault or sexual crimes against children.
What does deferred adjudication for a sex crime look like? Here is a brief summary:
- 1. Registration as a sex offender is required, even with deferred adjudication. The Texas Department of Public Safety and federal agencies keep a list of all persons required to register as a sex offender. This information is available to the public.
- 2. Deferred adjudication for sex offenses can last for up to ten years.
- 3. Courts typically restrict where a person on probation for a sex crime can live. For example, the accused cannot live within a certain distance of schools or playgrounds. Sometimes those on deferred probation for sex crimes have to move from a home they’ve lived in for years.
- 4. Deferred adjudication for sex offenses against children and adults makes it all but impossible to obtain a good job, much less a high-paying one. It also effects employment opportunities because the court doesn’t usually allow employment in places where minors are, or are likely to be, present.
- 5. Deferred adjudication for sex offenses restricts the accused’s access to minor children, sometimes even their own. Courts can, and sometimes do, order the accused not to see or even speak with their own children.
- 6. Deferred adjudication for sex offenses requires intensive sex offender treatment and therapy, which can be on an individual or group basis, and usually both. Part of therapy is admitting to the alleged sex crime, which often leads to problems. Here’s how:
- Those accused of sex crimes sometimes plead guilty and accept deferred adjudication out of fear of losing at trial, not because they are actually guilty. Some people are simply afraid to trust a jury, and I wish I could say that was ridiculous. These cases are emotionally charged, and jurors, being regular folks like the rest of us, sometimes vote “guilty” out of emotion instead of soberly looking at the evidence.
- So the person who pleaded guilty to get guaranteed probation rather than taking a chance with a jury now finds himself in sex offender therapy. The therapist asks the accused to confess. The accused says he didn’t do it. The therapist alerts the probation officer to the fact that the accused has denied the offense. The probation officer then files a motion to adjudicate (or revoke) the deferred adjudication probation because the accused “refuses to participate in counseling.” The court issues a warrant, the accused is re-arrested, and must now appear in court to answer to the motion to adjudicate. You can see the conundrum.
- 7. Polygraph testing is also required for those on deferred adjudication for sex offenses. As discussed in # 6 above, the questions on the polygraph exam include the details of the alleged sex crime. Texas law doesn’t allow for someone’s probation to be revoked for failing a polygraph test, but it does allow for revocation when the person isn’t “cooperating with treatment.” Also, failed polygraph tests generally result in additional counseling requirements and additional polygraph tests.
- 8. Another type of testing required of males on deferred adjudication for sex offenses against children is penile plethysmography (PPG) or phallometry. Penile plethysmography (PPG) or phallometry is measurement of blood-flow to the penis, supposedly used to measure sexual arousal. For females, vaginal and clitoral photoplethysmography (VPG, VPP) is sometimes required.
- 9. Community Service hours are also required of sex offender probationers. Courts routinely order hundreds of hours of community service for sex offense cases. The community service hours must generally be performed at a steady monthly rate; for example, if 170 hours of community service are required the probationer would do 8-10 hours a month until completed.
- 10. Probation officers also appear unannounced at the probationer’s home. The probationer is expected to welcome the probation officer into his home while the probationer officer snoops around.
- 11. Another common requirement of sex offender probation is either no use of a computer, or if computer use is allowed, limited or no access to the internet. Special software must be installed on any computer accessible by the probationer to track web activity and block certain websites.
- 12. Courts also impose travel restrictions on sex offender probationers. For example, the court could restrict travel to within the county of the probationer’s residence, or to several counties. Requests to travel outside the state of Texas or internationally must be approved by the court, and are often denied.
- 13. Random drug testing is also required. Abstinence from alcohol is also routinely ordered.
- 14. Fines and court costs are also required. Fines range from $0 to $10,000. Monthly probation fees of about $50 are required, along with the costs of counseling, drug testing, polygraph testing, etc.
These are just a few of the stringent conditions and requirements placed on probationers for sex offenses against children and adults.
So, is deferred adjudication worth it? That’s a decision that can only be made after a full and complete investigation of the charges. It may be that deferred adjudication is the best option for the accused, but it is imperative that the decision be made with a full understanding of what’s involved and expected.
Consulting with a lawyer with years of experience handling sex offenses in the McKinney, Plano, Dallas, Allen, Denton, Frisco, Sherman, Ft. Worth, and Rockwall area is necessary in order to make informed decisions. Contact Collin County and Dallas-Ft. Worth area criminal defense attorney Keith Gore to learn more.