Victoria County officials react to ruling on online solicitation statute
Jan. 11, 2014 at 11 p.m.
Updated Jan. 11, 2014 at 7:12 p.m.
Texas' highest criminal court recently ruled that talking dirty to children online is not a crime.
But in Victoria County, investigating and prosecuting adults who use technology to prey on children will continue.
The unanimous opinion by the Court of Criminal Appeals of Texas struck down a portion of the online solicitation of a minor statute.
It is still illegal to try to meet with a child under the age of 17 for sex.
"It's a daunting task that a modern parent has," Criminal District Attorney Stephen Tyler said of how strangers have many devices at their fingertips on which they can connect with children.
What the ruling says
The portion of the statute, Section 33.021 (b) of the Texas Penal Code, ruled unconstitutional prohibited talking to minors in a sexually explicit manner as well as distributing material to them that related to sex.
That would include a "whole cornucopia" of speech protected by the First Amendment, such as "Lolita," "50 Shades of Grey" and Miley Cyrus twerking during the MTV Video Music Awards, and the court must draw a distinction between ideas and conduct, Judge Cathy Cochran wrote.
"It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene," she wrote.
Tyler agreed there must be an overt act, such as setting up a meeting place or driving by the child's house when his or her parents are not around.
He was not surprised by the ruling, which was passed down after John Christopher Lo challenged the law.
Lo, 53, was accused of sending a teenager sexually explicit text messages in 2010. His case in Harris County has since been dismissed.
"All the court is saying is the Legislature got a little ahead of itself. You need more than mere words," Tyler said. "And even though the court allowed - before it corrected it - some prosecutions, I don't know that many prosecutors on words alone were pursuing cases."
"We all grew up hearing, 'Sticks and stones may break my bones, but words will never hurt me.' Words have seldom been enough for a clear and present danger," he added.
Michael Sheppard, who serves as the district attorney for DeWitt, Goliad and Refugio counties, also understood the court's thought process.
Some prosecutors could overstep by charging someone with a crime for simply referencing a mainstream movie that features nudity, he said.
In the past three years, seven people were charged in Victoria County with online solicitation of a minor.
One case is pending, and one case was dismissed.
Two defendants were sentenced to prison. One received nine years in prison in 2010 but was paroled Dec. 23.
The others got anywhere from five to 10 years probation, according to court records.
The second man serving four years in prison, Gabriel Antonio Abrego, was convicted under the portion of the statute that the court ruled was unconstitutional.
Two of the 10 counts on his July 2011 indictment alleged he text messaged a minor and asked for oral sex as a birthday present.
Brendan Guy, the appellate chief at the Victoria County district attorney's office, predicted the Court of Appeals' ruling will not affect Abrego.
That's because Abrego, 33, of Gregory, was also convicted of several counts of sexual assault and possession of child pornography. He would still have to complete a four-year prison sentence for those charges, Guy said.
Sheppard, meanwhile, has only tried cases in which a person has asked or tried to meet up with a minor for sex.
Abrego's attorney, Jerry Clark, declined to comment on the case.
From a theoretical standpoint though, he agreed with the higher court that the law was overbroad. It's not an earth-shaking decision, as most prosecutors require there be an overt act, Clark said.
Parents should report issues
Some state prosecutors have argued the offending portion of the statute targets "grooming."
Grooming is another term for when an adult tries to befriend a child online before meeting up for sex, said Cody Breunig, a detective with the cyber crimes unit at the Victoria Police Department.
Breunig is indifferent about the ruling because he has never arrested someone for talking dirty to a child.
"I've always erred on the side of caution to begin with to where there is an actual offense of the individual saying he wants to meet the child," Breunig said. "Parents should err on the side of caution, too."
Even though talking dirty to children is now legal, parents should express any concerns they have about their child's online interactions to law enforcement.
"That way if something should arise, we have a past history," Breunig said.
Law enforcement may keep tabs on those people acting suspiciously online or elsewhere. They can't wiretap someone, but there is no expectation of privacy in a chat room, Tyler said.
"It's like if our local agents with Bureau of Alcohol, Tobacco and Firearms noticed that I was buying hundreds of firearms and hundreds and thousands of rounds of ammunition. I think it would be negligent for those agents not to be interested in what I might be doing if I don't own a gun store," Tyler said.
An adult talking to a child online or through text messaging "with the intent to arouse or gratify the sexual desire of any person" should be illegal, said local defense attorney Brent Dornburg.
Dornburg represented a man recently who planned to meet up with an officer posing as a child.
This change in the law would not apply to his client.
Adding the phrase that shows the adult's intent should have covered First Amendment concerns, he said.
And it should not be a crime to send passages of what some consider to be risque literature if it's for educational purpose, he said.
"I'm a criminal defense attorney. I make sure people's rights don't get violated, but I'm not for crime," Dornburg said. "Usually, the proof is in the language."
Sheppard said adding the phrase Dornburg referenced, "arguably provides some protection for those who might be innocent in their communication."
To prove someone had nefarious intentions is not always easy. Prosecutors have to show the defendant's past behavior and reaction to the communication if the context is not clear for a jury, he said.
Dornburg predicted the Texas District & County Attorneys Association, which helped draft the statute in 2005, would try to rewrite it.
As technology becomes more prevalent, more crimes will occur online, said Breunig.
"Ultimately, legislation will catch up. ... It's always been that way since the beginning of law enforcement," he said.