Indecency With a Child

To prove the criminal offense of indecency with a child, the State does not have to prove that the defendant knew the victim was younger than 17. A mistake about the child's age is not a defense to the charge.

The misdemeanor crime of indecent exposure under Penal Code § 21.08 can be a lesser included offense of indecency with a child. For example, in Briceno v. State, 580 S.W.2d 842 (Tex.Crim.App. 1979), the court found that the lesser included offense of indecent exposure could be raised in a case in which the defendant testified that he did not know that a child was present and was, therefore, being reckless.

In some cases, indecency with a child is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act. See Evans v. State, 299 S.W.3d 138 (Tex.Crim.App. 2009).

Attorney for Crimes of Indecency With a Child in San Antonio, TX

If you were charged with the felony offense of idecency with a child by conduct or exposure then contact an experienced criminal defense attorney at Flanary Law Firm, PLLC in San Antonio, TX. Don Flanary represents clients with sexually motiviated crimes in Bexar County and the surrounding areas. 

Call (210) 738-8383 today.


Indecency with a Child by Sexual by Contact

Under Texas Penal Code Section 21.11(a)(1), the crime of indecency with a child by sexual conduct is a second-degree felony. The elements of the crime include:

  • the defendant engages in sexual contact with the child or causes the child to engage in sexual contact;
  • the act is committed with a child younger than seventeen (17) years of age;
  • the child is of the same or opposite sex.

If the breast of a female or the anus or genitals of anyone are touched, there is no crime unless the touching was done with the intent to arouse or gratify some person's sexual desire.

The crime of indecency with a child is committed by touching the breast or anus of another person with the requisite intent. Touching of “anus” means actual touching of the posterior opening of the alimentary canal and does not include buttocks. See Pryor v. State, 719 S.W.2d 628 (Tex.App.-Dallas 1986, pet. ref'd).


Indecency with a Child by Indecent Exposure

Under Texas Penal Code Section 21.11(a)(2), the crime of indecency with a child by exposure is a third-degree felony. The elements of the offense include: 

  • the defendant exposes his anus or any part of his genitals, knowing the child is present or causes the child to expose the child's anus or any part of the child's genitals; 
  • the defendant acted with the intent to arouse or gratify the sexual desire of any person; 
  • the child is younger than seventeen (17) years; and
  • the child is of the same or opposite sex.

Affirmative Defenses

Under Penal Code, Sec. 21.11(b), it is an affirmative defense to prosecution for this offense that the actor was:

  • not more than three years older than the victim, if any, and
  • of the opposite sex; and
  • did not use duress, force, or a threat against the victim at the time of the offense, if any, and
  • at the time of the offense was not required to register for life as a sex offender under Chapter 62 of the Code of Criminal Procedure, or
  • was not a person who had a reportable conviction or adjudication for an indecency with a child offense in accordance with Chapter 62 of the Code of Criminal Procedure.

The burden of proof regarding this affirmative defense rests upon the defendant, and to establish such defense, the defendant must prove it by a preponderance of the evidence. The term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case.

Under Penal Code, Sec. 21.11(b-1), it is an affirmative defense to prosecution for this offense that the actor was the spouse of the child at the time of the offense. The burden of proof regarding this affirmative defense rests upon the defendant, and to establish such defense, the defendant must prove it by a preponderance of the evidence.


Definitions for the Indecency with a Child Statute in Texas

The term “sexual contact,” means any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, or any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person with the intent to arouse or gratify the sexual desire of any person.

The term “spouse” means a person who is legally married to another.

A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct.


Finding a Lawyer for Indecency with a Child in Bexar County, TX

If you were charged with the serious criminal offense of indecency with a child by conduct or exposure, then contact an experienced criminal defense attorney in San Antonio, TX, at Flanary Law Firm, PLLC. Don Flanary is experienced fighting criminal charges for sexually motivated crimes throughout San Antonio, TX, and the surrounding areas in Bexar County including New Braunfels, Schertz, Seguin, Boerne, Canyon Lake, Cibolo, Converse, Leon Valley, Live Oak, Timberwood Park, Universal City, Alamo Heights, Fair Oaks Ranch, Floresville, Helotes, Hondo, Kirby, Lackland AFB, Lakehills, Pleasanton, Selma, Terrell Hills and Windcrest. 

Attorney Don Flanary also represents clients throughout the San Antonio area which includes Bexar County,Kendall County, Comal County, Guadalupe County, Wilson County, Atascosa County, Medina County, and Bandera County. 

Call (210) 738-8383 for a free and confidential consultation to discuss your case today.


This article was last updated on Tuesday, December 27, 2016.

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