Possession of Child Pornography

The crime of possession of child pornography is prosecuted under Texas Penal Code Section 43.26(a) as a third-degree felony. Charges for this type of crime are particularly serious because the State can often prosecute a defendant for a separate count for each item of pornography the defendant has, even if all the items are seized during one search.

Attorney for Child Pornography Crimes in San Antonio, TX

If you were charged with the offense of possession of child pornography in either state or federal court, then contact an experienced criminal defense attorney in San Antonio, TX. 

Don Flanary also represents clients in the greater San Antonio area for child porn crimes including:

  • Promotion of Child Pornography
  • Electronic Transmission of Certain Visual Material Depicting Minor
  • Electronic Transmission of Certain Visual Material Depicting Minor
  • Computer Technicians Required to Report Child Pornography

Don Flanary also represents clients charged with child pornography crimes in federal court prosecuted in the Western District of Texas in the San Antonio Division.

Call today for a free and confidential consultation to discuss the facts of your case, the potential penalties that can apply after a conviction and important defenses that can help you fight the case. 

Call (210) 738-8383 today.


Elements of Possession of Child Pornography - Sec. 43.26(a)

Under Penal Code, Sec. 43.26(a), possession of child pornography is charged as a Third-Degree Felony. The elements of possession of child pornography must be proven beyond all reasonable doubt at trial include: 

  • the defendant intentionally or knowingly possesses or accesses with intent to view;
  • visual material;
  • the material visually depicts a child younger than 18 years of age at the time the image of the child was made;
  • the child in the visual material is engaging in sexual conduct; and
  • the person knows that the material depicts the child engaging in sexual conduct.

Elements of Promotion of Child Pornography  - Sec. 43.26(e)

Under Penal Code, Sec. 43.26(e), promotion of child pornography is charged as a Second-Degree Felony. The elements of promotion of child pornography that must be proven beyond all reasonable doubt at trial include: 

  • the defendant intentionally or knowingly promotes or possesses with intent to promote;
  • visual material;
  • the material visually depicts a child younger than 18 years of age at the time the image of the child was made;
  • the child is engaging in sexual conduct; and
  • the person knows that the material depicts the child engaging in sexual conduct.

Failure of a Computer Technician to Report Child Porn - Section 109.003

For purposes of the child pornography promotion statute, the term “promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of these.

Under  Business and Commerce Code, Section 109.003, a computer technician is required to report child pornography business and commerce code. The failure to make sure a report can be charged as a Class B Misdemeanor. The elements of the offense that must be proven at trial include:

  • the defendant is a computer technician;
  • in the course and scope of employment or business as a computer technician;
  • the defendant views an image on a computer that is or appears to be child pornography
  • the defendant intentionally failed to immediately report the discovery of the image that is or appears to be child pornography.

Under Texas law, the computer technician is required to report the discovery of the image to a local or state law enforcement agency or the Cyber Tipline at the National Center for Missing and Exploited Children.

If known, the report must include the name and address of the owner or person claiming a right to possession of the computer.

The term “computer technician” means an individual who in the course and scope of employment or business installs, repairs, or otherwise services a computer for a fee.


Defenses to Crimes of Child Pornography

Under Penal Code, Sec. 42.26(c), it is an affirmative defense to the charge of possession of child pornography that:
  • the defendant was the spouse of the child at the time of the offense;
  • the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or
  • the defendant was not more than two years older than the child.

Under Penal Code, Sec. 43.26(h), it is an affirmative defense to the charge of promotion of child pornography that the defendant is a law enforcement officer or school administrator who possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of transmission of child pornography and allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based upon the allegation described and took reasonable steps to destroy the material within an appropriate period.

For the statute related to the failure of a computer technician to report the discovery of child pornography during the scope of employment, Sec. 43.26 provides a defense to prosecution if the child in the image appeared to be at least 18 years of age.


Definitions for Child Pornography Crimes in Texas

The term “child” is defined to mean a person younger than 18 years of age.

The term “sexual conduct” is defined to include sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

The term “visual material” is defined to include any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide, or any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission or other methods.


Finding a Lawyer for Child Pornography Offenses in Bexar County, TX

If you are accused of intentionally or knowingly possessing child pornography in San Antonio or Bexar County, TX, then contact a criminal defense attorney at Flanary Law Firm, PLLC.

Don Flanary represents clients charged in both state and federal court with the use, possession, distribution or production of visual images of child pornography throughout the greater San Antonio area including all of Bexar County and the surrounding counties of Kendall County, Comal County, Guadalupe County, Wilson County, Atascosa County, Medina County, and Bandera County.


This article was last updated on Thursday, December 29, 2016.

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