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.
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.
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