Texas Indecency With a Child — Texas defense framework

Statutory framework — Penal Code §21.11(a)

Penal Code §21.11(a) defines two ways to commit indecency with a child. Under §21.11(a)(1), a person commits the offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person engages in sexual contact with the child or causes the child to engage in sexual contact. Section 21.11(c) defines "sexual contact" as any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, or any touching of any part of the body of a child with the anus, breast, or any part of the genitals of a person, if committed with the intent to arouse or gratify the sexual desire of any person.

Under §21.11(a)(2), a person commits the offense if, with intent to arouse or gratify the sexual desire of any person, the person exposes the person's anus or any part of the person's genitals knowing the child is present, or causes the child to expose the child's anus or any part of the child's genitals.

The grade is set by §21.11(d). Sexual-contact indecency under (a)(1) is a second-degree felony. Exposure indecency under (a)(2) is a third-degree felony. The §21.11(a)(1) mens rea — intent to arouse or gratify the sexual desire of any person — is an element the State must prove beyond a reasonable doubt; the Texas courts of appeals have addressed the ways that intent may be inferred from circumstantial evidence including the nature of the contact, the context, and any contemporaneous statements.

Section 21.11(b) — the affirmative defense including Romeo and Juliet

Section 21.11(b) defines an affirmative defense to prosecution for indecency with a child. The defense is available if the actor: (1) was not more than three years older than the victim and of the opposite sex; (2) did not use duress, force, or a threat against the victim at the time of the offense; and (3) at the time of the offense was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under §21.11.

The within-three-years element is calculated from the date of birth of the actor and the victim. The "of the opposite sex" requirement reflects the original 2003 statutory text and has been the subject of equal-protection argument; courts of appeals have generally rejected those challenges, though the line of authority should be reviewed in light of post-Lawrence v. Texas, 539 U.S. 558 (2003), and post-Obergefell v. Hodges, 576 U.S. 644 (2015), developments where the issue is preserved.

The §21.11(b) defense is an affirmative defense. The defendant carries the burden of proof by a preponderance of the evidence under Penal Code §2.04(d). The procedural posture matters: an affirmative defense is presented through evidence at trial and submitted to the jury in the charge; it is not a basis for pretrial dismissal of the indictment. Defense counsel evaluating a §21.11 case where the (b) defense may apply must develop the evidentiary record that supports each statutory element.

CCP Article 42A.054 — deferred-adjudication exclusion

Code of Criminal Procedure Article 42A.054 categorically excludes indecency with a child under §21.11 from deferred adjudication where the actor used or exhibited a deadly weapon or where specified other circumstances apply; the exclusion structure should be read against the specific charging instrument. In configurations not falling within the categorical exclusion, deferred adjudication on a §21.11 indictment may remain statutorily available — though practical availability depends on the prosecutorial posture in the county of prosecution and the defendant's record.

Where deferred adjudication is available and granted, successful completion results in dismissal without an adjudication of guilt. Whether non-disclosure under Government Code §411.0725 is available after dismissal turns on §411.074, which lists categorical exclusions including certain offenses against children. Defense counsel evaluating a deferred-adjudication plea on a §21.11 indictment should run the analysis through both §42A.054 and §411.074 before recommending the plea — the non-disclosure relief that ordinarily follows deferred adjudication may not be available for §21.11 dispositions even where deferred adjudication itself is available.

Code of Criminal Procedure Article 42A.108 governs adjudication of guilt on violation of deferred-adjudication community supervision. The full statutory range of §12.33 (sexual contact) or §12.34 (exposure) becomes the punishment exposure on adjudication; the deferred-adjudication placement range does not cap the post-adjudication sentence.

Chapter 62 sex-offender registration

Conviction under Penal Code §21.11 carries mandatory sex-offender registration under Code of Criminal Procedure Chapter 62. Article 62.001(5) classifies §21.11 as a reportable conviction or adjudication. Registration obligations include initial registration with local law enforcement under Article 62.051, periodic verification under Articles 62.058 and 62.060, registration of online identifiers under Article 62.0551, and reporting of address, employment, and school changes.

The duration of registration is set by Article 62.101. For most §21.11 convictions involving sexual contact under (a)(1), the registration period is lifetime under Article 62.101(a). For exposure convictions under (a)(2) the duration analysis turns on the specific configuration; some §21.11(a)(2) convictions carry a ten-year period from discharge of sentence or release from supervision under Article 62.101(c). Early termination of registration under Article 62.404 is available in narrow categories where the federal Sex Offender Registration and Notification Act tier is lower than the Texas tier — a comparison that varies by §21.11 configuration.

Article 62.061 provides for community notification in defined circumstances. Municipal residency restrictions imposed by some Texas cities limit where registered offenders may live in relation to schools, daycares, and other sensitive sites; these restrictions are addressed by ordinance rather than by the Penal Code. Failure to comply with registration is a separate felony under Article 62.102.

Limitations — CCP Article 12.01

Code of Criminal Procedure Article 12.01 sets the felony limitation periods. Indecency with a child under §21.11(a)(1) (sexual contact) is exempt from any statute of limitations under Article 12.01(1)(D). Indecency by exposure under §21.11(a)(2) carries the felony limitation period generally applicable under Article 12.01 — currently ten years from the eighteenth birthday of the complainant under Article 12.01(5) in cases involving child victims, subject to the specific subsection.

The practical consequence is that §21.11(a)(1) indictments may be returned at any time after the alleged conduct; the State faces no limitations bar. §21.11(a)(2) indictments are time-bounded, and limitations defenses may be available where the indictment is returned outside the applicable period. The limitation analysis must be run against the specific date alleged in the indictment and the complainant's date of birth.

Outcry-witness testimony under CCP Article 38.072

Indecency-with-a-child cases — particularly those charged years after the alleged conduct — frequently rely on outcry-witness testimony under Code of Criminal Procedure Article 38.072. The statute permits the first adult, other than the defendant, to whom the child made a statement about the offense to testify to that statement notwithstanding the hearsay rule, subject to procedural prerequisites: notice from the State within the time specified in §38.072(b)(1), a hearing outside the presence of the jury to determine reliability, and an affirmative finding by the trial court that the statement is reliable.

Defense response to outcry-witness designations is a focal point of §21.11 practice. Counsel may subpoena the designated outcry witness for examination at the reliability hearing; develop inconsistencies between the outcry statement and the complainant's subsequent testimony; and challenge the identification of the proper outcry witness where multiple adults may have heard related statements. Article 38.071 separately governs the admission of recorded forensic-interview statements; the §38.071 admissibility analysis is distinct from the §38.072 analysis.

Defense expert testimony in §21.11 cases — addressing memory research, suggestive interview methodology, and the limits of forensic-medical findings — is governed by the Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), reliability analysis and Rule 702 of the Texas Rules of Evidence.

Lesser-included offenses and charge selection

The relationship between §21.11(a)(1) sexual-contact indecency and the more serious sex-offense statutes — §22.011 sexual assault of a child and §22.021 aggravated sexual assault of a child — is significant for plea and trial strategy. Section 21.11(a)(1) does not require penetration; §22.011 and §22.021 do. In appropriate cases, a §22.011 or §22.021 charge may include §21.11(a)(1) as a lesser-included offense under the Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), analysis.

The continuous-sexual-abuse statute at §21.02 also reaches sexual-contact indecency under §21.11(a)(1) as one of its enumerated underlying offenses where the victim is younger than 14 and the actor is 17 or older. A §21.02 indictment requires two or more enumerated acts during a period of 30 or more days; a single act of §21.11(a)(1) indecency does not support §21.02 charging. Defense response to §21.02 indictments often includes evaluating whether the evidence supports a charge bargain to discrete §21.11(a)(1) counts.

Where the §21.11(b) affirmative defense is available, the defense may be an important basis for charge negotiation pre-indictment or charge reduction post-indictment. The statutory elements of the defense — within three years in age, opposite sex, no duress/force/threat, no prior registration obligation — must each be supported by record evidence.

What L and L Law Group does on a §21.11 case

L and L Law Group, PLLC defends indecency-with-a-child cases under Penal Code §21.11 across the nine DFW counties we serve. Co-founding partners Reggie London (Texas Bar #24043514) and Njeri London (Texas Bar #24043266) — both licensed Texas attorneys since 2005 — handle these cases personally from indictment through resolution.

Defense work in a §21.11 case typically includes: (1) immediate review of the charging instrument against the specific subsection — (a)(1) sexual contact or (a)(2) exposure — and the corresponding grade and registration consequence; (2) Michael Morton Act discovery under CCP Article 39.14 for all complainant statements, outcry-witness identification, forensic-interview recordings, medical and SANE-examination reports, and any digital or documentary evidence; (3) §38.072 reliability-hearing preparation and litigation; (4) evaluation of the §21.11(b) affirmative defense including the within-three-years calculation and the related elements; (5) §42A.054 deferred-adjudication availability analysis and §411.074 non-disclosure availability analysis as applied to the specific configuration; (6) Chapter 62 registration counseling at every plea conference; (7) lesser-included analysis under Hall v. State; and (8) trial preparation including jury-selection strategy under Code of Criminal Procedure Chapter 35.

Free initial consultations are standard. The firm is at 5899 Preston Rd, Suite 101, Frisco, TX 75034. Telephone (972) 370-5060. Email info@landllawgroup.com.