Motions to Stack: Raising the Stakes in Child Pornography Cases

When a criminal defendant uses the internet to obtain child pornography, they have committed both a federal and state crime.  This means the same act can be prosecuted in both state and federal court.  Where the case lands is often determined by the law enforcement agency handling the initial investigation and the number of images contained on the defendant’s computer.  If a federal agency leads the investigation, the likelihood of federal charges increases.  The federal government can also take over a state prosecution if the number of images is exceptional.  County district attorney’s offices and federal agencies often work side by side in child pornography investigations, and it can be difficult to determine where the case will end up until many months into the prosecution.  It is very rare that the state and federal courts will both move forward with prosecution.  Most state cases taken over by federal agents are dismissed if a conviction is obtained in federal court.

In a previous blog, we discussed the punishment for both possession and distribution of child pornography in federal court.  In this post we will look at the punishment range for possession of child pornography under Texas law, compare the punishment between federal and state jurisdictions, and discuss a trend in state prosecutions which changes the punishment dynamics in state court.

Possession of Child Pornography – Texas Statute

Possession of child pornography is codified under Texas Penal Code § 43.26.  This statute makes it a criminal act for a person to 1) knowingly or intentionally possess visual material which depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, and 2) the person knows the material depicts a child.  This offense is a third-degree felony which carries a sentence of two to ten years in a Texas prison.  Like federal charges, defenses to child pornography under the Texas statute are built out of the knowledge and intent elements.  The state must prove the defendant knew the child pornography was on the computer and had access to the images.

State v. Federal Sentencing

Possession of child pornography in the federal system carries a sentence from 0-10 years in federal custody.  If a defendant is convicted of distribution of child pornography, the sentencing range is 5-20 years in federal prison.  Technically, probation is available in federal court on simple possession charges, but often this result is out of reach.  The sentencing guidelines, previously discussed here, require a very low offense level before the court is advised to consider probation.  Most child pornography cases in federal court contain too many images for this offense level to be a reality under the sentencing guidelines.  Even on simple possession cases, most federal defendants are looking at a minimum of a couple years in federal custody upon conviction.  That is not to say probation is impossible.  With the right set of facts, and the right district court judge, probation can be obtained.  But this sentence is certainly the exception rather than the rule.

In state court, the sentencing range is 2-10 years in state custody.  However, the state system does not have the sentencing guidelines to restrict punishment options for a defendant.  The state prosecutor can recommend a deferred adjudication or straight probation as part of a plea deal. If the defendant is found guilty at trial, they still have the option to ask for probation from the jury or the judge in sentencing.  The defendant can also plead guilty and go directly to the judge in hopes of obtaining a deferred adjudication or straight probation following a sentencing hearing.  While the federal system essentially bars probation for federal child pornography defendants, the state system has numerous avenues and channels which may provide a probated sentence.  There is no doubt the state system provides access to better sentences than the federal system.

For many years, it was not uncommon for a local district attorney’s office to offer a deferred adjudication on possession of child pornography charges.  The defendant would not go to prison, would be subjected to numerous programs to address his issues, and the case would be dismissed following multiple years of good behavior.  In some larger counties, these types of plea deals are still available for clients with no prior criminal history.  However, these offers are becoming rare as child pornography cases become more prevalent in state court.

Motions to Stack in Child Pornography Cases

In light of the disparity between federal and state sentencing, state prosecutors are ratcheting up the risk of long jail sentences.  In Vineyard v. State, 958 S.W.2d 834 (Tex. Crim. App. 1998), the Court of Criminal Appeals ruled that “possession of each item of child pornography is an allowable unit of prosecution.”  This means a criminal defendant with 100 images of child pornography on their computer can be charged with 100 counts of possession of child pornography.

Normally, sentences on multiple counts in a single criminal episode run concurrently.  This means if a person is convicted of possession of cocaine, heroin, and methamphetamine resulting from the same traffic stop, and the criminal defendant receives 4 years in prison on each, the sentences will run at the same time.  The defendant will have three separate convictions, but only one four-year sentence for parole purposes.  However, Texas Penal Code § 3.03 carves out certain crimes where the sentences can run consecutively upon conviction.  If a criminal defendant receives two consecutive sentences, the second sentence will not begin to run until the first sentence is completed.  The first sentence is completed when the defendant either serves the total amount of time or is granted parole.  Put differently, if a criminal defendant receives three four-year sentences, and they run consecutively, the defendant would have to be granted parole on the first two sentences prior to starting his final four-year sentence.  This is a huge distinction.  A person serving three four-year sentences running concurrently would be eligible for parole in six months under current law.  A defendant serving three four-year sentences running consecutively would not be released until he was granted parole on all three sentences in succession.  The exact time difference is hard to calculate, but a difference between six months and three years is well within the realm of possibility for a controlled substance offense.

Texas Penal Code § 3.03(b)(3)(A) states the sentence may run consecutively if each sentence is a conviction for an offense under Texas Penal Code § 43.26.  This leaves the decision to run the sentences concurrently or consecutively in the hands of the trial court.  What happens is the district attorney files a motion to “stack” or run the sentences consecutively.  At sentencing, the trial court can either grant or deny that motion.

State prosecutors are leaning on this section of the Penal Code to force defendants into plea bargains which involve some prison time.  The state’s increased use of this section is dangerous for child pornography defendants in state court.  If a defendant has 100 images of child pornography on their computer, the state can file 100 counts of possession of child pornography.  If a motion to stack is granted the new punishment range is effectively 200-1,000 years in state custody.  In practice, no Texas judge or district attorney’s office would ask for that much time, but this highlights the high end of the statutes reach.  Instead of this ludicrous punishment range the frequent practice from prosecutors is to take the 4-6 worst images and obtain indictments on those select few.  This increases the range of punishment to 8-60 years in state custody.  Still a life sentence for many criminal defendants, but notably less draconian than obtaining indictments on all 100 counts.

This reality gives the state far more leverage in the plea negotiation process.  If a criminal defendant goes to trial and is found guilty on ten counts, they are at a huge risk.  If the jury sets punishment at four years in state custody on each count, and the trial court grants the motion to stack, the defendant is facing 40 years in state custody.  Further, the defendant will have to be granted parole on nine four-year sentences before beginning to serve the last four years.  Given the increased use of motions to stack for leverage, it is no longer apparent that a criminal defendant is better off in the state court system.  An aggressive prosecutor, and a stringent trial court judge, can lead to far more prison time in state court than is allowable under federal statutes.

As child pornography cases become more wide spread with the proliferation of the internet, state prosecutors are clamping down on child pornography defendants.  In most cases, third degree felonies are met with probation offers for first time offenders.  This is true for indecency by exposure cases and major drug crimes.  Further, it is not uncommon for probation offers to be made for more heinous crimes such as indecency with a child by contact (Second Degree Felony) and aggravated robbery (First Degree Felony).  Prosecutors are taking special notice of child pornography cases and are leaning on the stacking provisions to ensure jail time for all child pornography defendants.   This focus seems to be widespread across the state of Texas, and it will be interesting to see how the prosecution of these cases adapts moving forward.

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