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- Former Counsel for the Police Union.
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Sex Crime Criminal Defense Attorneys – The Law – Obscenity
Tex. Pen. Code 43.23 says:
(A person commits an offense if knowing its content and character he wholesale promotes or posses with intent to promote any obscene material or obscene device.
Punishment – State Jail Felony (180 days – 2 years in state jail; up to $10,000 fine).
(c) A person commits an offense if, knowing its content and character, he:
(1) promotes or possesses with intent to promote any obscene material or obscene device; or
(2) produces, presents, or directs an obscene performance or participates in a portion thereof that is obscene or that contributes to the obscenity.
Punishment – Class A Misdemeanor (up to 1 year in county jail; up to $4,000 fine).
Sex Crime Criminal Defense Attorneys – Statutory Presumptions.
(e) A person who promotes or wholesale promotes obscene material or an obscene device or possesses the same with intent to promote or wholesale promote it in the course of his businesses is presumed to do so with knowledge of its content and character.
(f) A person who possesses six or more obscene devices or identical or similar obscene articles is premised to possess them with intent to promote the same.
Sex Crime Criminal Defense Attorneys – Statutory Defenses.
(g) It is an affirmative defense to prosecution under this section that the person who possesses or promotes material or a device proscribed by this section does so for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.
Sex Crime Criminal Defense Attorneys – Punishment Enhancement
(h) The punishment for an offense under Subsection (a) or (c) is increased to the punishment for a felony of the second degree if it is how on the trial of the offense that obscene material that is the subject of the offense visually depicts activities described by Section 43.21(a)(1)(B) engaged in by:
(1) a child younger than 18 years of age at the time the image of the child was made;
(2) an image that to a reasonable person would be virtually indistinguishable from the image of a child younger than 18 years of age; or
(3) an image created, adapted, or modified to be the image of an identifiable child.
Sex Crime Criminal Defense Attorney – Statutory Definitions.
(i) In this section, “identifiable child” means a person, recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature:
(1) who was younger than 18 years of age at the time the visual depiction was created, adapted, or modified; or
(2) whose image as a person younger than 18 years of age was used in creating, adapting, or modifying the visual depiction.
Tex. Pen. Code 43.21. Definitions.
(a) in this subchapter:
(1) “Obscene” means material or performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations of descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in as state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.
(4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.
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