Understanding the legal distinctions between viewing and possessing child pornography in Texas is critical, particularly if you or someone you know is facing related sex offense charges. Texas law treats these situations differently, with intent and knowledge playing a central role.
Viewing vs. Possessing Child Porn: What’s the Difference?
First and foremost, possessing child pornography is always illegal in Texas. The law doesn’t leave much room for interpretation here—if you knowingly possess these materials, you could be facing severe penalties.
But what about viewing? Under Texas law, simply viewing child pornography isn’t automatically a crime. This may surprise some, but the law makes a key distinction: It’s illegal to knowingly access child pornography with the intent to view it. In other words, if you deliberately take steps to view child porn, like searching for it online or downloading it, you can be charged.
Imagine you’re browsing the internet, and a disturbing image unexpectedly pops up. You immediately close the page and move on. In this case, you haven’t committed a crime because there was no intent to view. But if you click through on purpose, spend time looking at it, or save it, that’s where the legal trouble begins.
Texas Laws on Child Pornography
In Texas, under Section 43.26 of the Penal Code, it’s a felony to knowingly or intentionally possess or access with the intent to view visual material that depicts a person under 18 engaging in sexual conduct. Here’s what you could be facing if convicted:
- First offense (third-degree felony): 2 to 10 years in prison and up to $10,000 in fines.
- Second offense (second-degree felony): 2 to 20 years in prison and up to $10,000 in fines.
- Third and subsequent offenses (first-degree felonies): 5 to 99 years in prison or life imprisonment and up to $10,000 in fines.
Federal Child Porn Laws
The federal government also takes a hard line on child pornography. Under 18 U.S. Code Section 2252(4), possessing or accessing child pornography with the intent to view is illegal. A first-time offense can result in up to 10 years in federal prison. If the materials involve children under the age of 12, the potential sentence jumps to 20 years.
Federal charges often carry more severe penalties, and they can be pursued in addition to state charges, meaning you could face prosecution on multiple fronts.
Accidental Possession of Child Porn
Not every case is black and white when it comes to child pornography allegations. Though, intent plays a crucial role in whether you’ve committed a crime.
Let’s say you borrow a friend’s computer, and later, law enforcement finds child porn in the files. If you were unaware of the material, you haven’t committed a crime. But what matters here is proving your lack of knowledge and intent.
In cases of accidental possession, a strong defense typically focuses on demonstrating your lack of awareness. For example, if multiple people had access to the device, or if the files were downloaded without your knowledge (such as through automatic downloads or malware), this can serve as evidence in your favor. Forensic analysis of the device may reveal who downloaded the files, when they were accessed, or if the material was hidden in a way that would have been unknown to you.
Your defense attorney will likely gather evidence to show that:
- You did not intentionally seek out or save the material.
- The files were placed on the device without your knowledge.
- Other individuals had access to the device, and you were not responsible.
Accidental possession is a complex defense, but with proper legal representation, it can be effective in protecting your rights.
FAQs About Viewing &Possessing Child Porn
What if I Accidentally Viewed Child Pornography?
Texas law requires that the viewing be intentional. If you accidentally came across child pornography online, and there’s no evidence that you took deliberate actions to view or save the material, you may not have committed a crime. However, you should consult with an attorney immediately to help prove this lack of intent.
What if the Police Finds Child Porn on My Computer, But I Didn’t Put It There?
If you unknowingly possessed child pornography, such as through shared files or borrowing someone else’s device, the key issue will be proving your lack of knowledge and intent. A strong defense will focus on showing that you were not aware of the material.
Can School Administrators Be Charged if they Encounter Child Porn?
In Texas, law enforcement officers or school administrators who find child porn as part of their professional duties may have a defense if they take reasonable steps to destroy the material or allow others to access it for law enforcement purposes. Simply encountering these materials does not automatically result in a criminal charge, as long as the possession was for a lawful purpose.
What if I am Charged with Promoting Child Pornography?
Under Section 43.6(e) of Texas law, possessing six or more depictions of child pornography can lead to charges of promotion, which carries more severe penalties. The law assumes that anyone with this amount of material intends to distribute or promote it. Fighting these charges will require a detailed defense strategy.
Need a Lawyer? Houston Attorney Ned Barnet Can Help
Defending against child pornography charges or just explaining how you encountered illicit materials are no easy tasks. Most police and prosecutors are looking to secure convictions and close cases, not your best interests or reputation. No to mention, the consequences of a child porn conviction can be life-shattering, with long prison sentences, hefty fines, and mandatory registration as a sex offender. That’s why it’s essential to work with a criminal defense lawyer who understands the nuances of the law and can develop a defense strategy tailored to your unique situation.
Whether it’s proving a lack of intent, demonstrating that the material was viewed accidentally, or fighting to have charges reduced, Houston defense attorney Ned Barnett has helped many clients navigate these and other child pornography-related charges.
As a former prosecutor and experienced Houston sec crime defense attorney, Ned Barnett knows what it takes to secure outstanding results that let you move on with life after being accused of a serious crime. Attorney Barnett is a fierce advocate for the accused and a careful strategist for every client. Let us review what happened, advise you, and fight for you.
If you are under investigation for possessing or accessing child porn in the Houston area, contact us today for a free case evaluation at (713) 222-6767.