Need serious advice please read

[TNgirlie]

What is the name of your state (only U.S. law)? TEXAS

Ok first off i just want to say thank you to anyone that will take this thread serious and help me with this decision i need to make which is ultimately the biggest one i will make of my life.

ok here it is. i was charged with sexual assault of a child last year for having sex with my girlfriend who was 16. i was 19 at the time but was passed the 36 month rule allowed by the state of texas. heres how it all happened. i was going through problems with my ex girlfriend at the time i was with my new girlfriend. one saturday night i was in the bedroom of my house which is not surrounded by any fence and did not have any no trespassing signs. basically a simple house in a neighborhood. i was in the middle of the intercourse when i hear a knock on the window of my bedroom. it was the city police. the officer said at the window for me to open up the door.from what the statements say my ex girl got a call from a friend who told her that i was with my gf. she then got a ride from her friend and went to my backyard to see what i was doing. she peeked into the small hole of my closed blinds and saw the act in progress. she then ran to the street called 911. the cops show up and she takes them to the back yard of my house and they to peek through my blind to see what i was doing. when the cop knocked on the glass i panicked i didnt know it was a cop..i hit the lights because of course i was naked and so was my gf. i opened up the door and said whats the problem. he said "we need you to step outside we have just witnessed a felony being committed" they said they had the right to just run in but i said get a dam warrant first and slammed the door shut. i didnt know what to do at this time. so i told my gf just to go outside with me. after 5 minutes of freaking out in my house i walked outside and so did my gf. i was then placed under arrest. the cops got a search warrant and went inside and found the condom and sent my gf to get a rape kit done which identified her on the condom as well as me and saliva on her breast.

i finally got to this position in court where i was offered a plea deal of 7 years deferred probation plus lifetime registry as a sex offender. i go back june 8th to finalize it.

this is hard for me. my lawyer will only give me options he wont tell me what decision to make.

so would it be in my best interest to take the deal?
i still havent gone through the suppression phase. ive read alot about privacy and the 4th amendment and the texas exclusionary rule. do you think the search was unconstitutional and do you think i should try to fight that?

any advice you guys can give me would be greatly appreciated,
need anymore info just let me know so i can provide it.

I'd move to a state that has the 10 year registration rule when you legally can Seriously though, you're referring to stat rape, and a lot of states now have the 10 year registration rule depending on your age and your "victims" age. You are going to be facing some serious hurdles with the deal you're talking about taking, but not sure what the alternative is. I just went through the whole sex offender registry thing with my STBX. He was convicted in 1998 with having sex with a child, she was 15, he was 23. He got 2 years flat in a prison. Had he stayed in Texas his whole life, he was looking at a lifetime registration, but he's in Tennessee now and in 2008 (or something like that), they passed the 10 year registration clause for certain offenses. Good luck!

 

[FlyingRon]

Had he stayed in Texas his whole life, he was looking at a lifetime registration, but he's in Tennessee now and in 2008 (or something like that), they passed the 10 year registration clause for certain offenses. Good luck!

Actually technically it's still lifetime in Tennessee, too. It's just that after ten years from when he's released from prison/probation/parole, he can apply for release (if he hasn't any other convictions or related actions).

 

[TNgirlie]

Actually technically it's still lifetime in Tennessee, too. It's just that after ten years from when he's released from prison/probation/parole, he can apply for release (if he hasn't any other convictions or related actions).

I guess my STBX got off lucky then, he had 3 or 4 failure to registers during that 10 years, but the TBI still approved his release from the registry just last year.

 

[BOR]

ive read alot about privacy and the 4th amendment and the texas exclusionary rule. do you think the search was unconstitutional and do you think i should try to fight that?

The Constitutionality of it is decided by the Court, and your attorney seems to feel you are nailed??

A Felony of sexual assault on a child requires immediate action. If such is reported, then there exists what is known as emergency/exigent circumstances. The time to secure a warrant is bypassed.

What was done, peeping by the police, yes, was a search, but the SC has stated although a search absent a warrant is "presumptively/per se Unreasonable", there are carefully crafted exceptions.

Even if the police were told of a child in need, no crime was taking place, the Community Caretaking function described in Cady v. Dombroski (USSC), generally permits officer's to bypass a warrant when checking on a person's safety.

If your house was on fire, would a person expect the FD to secure an administrative warrant to enter??

 

[StevenJ_420Law]

But Constitutional rights like those in the 4th Amendment only provide minimum protections. States are still free to provide citizens greater protections through their own Constitutions and statutes and Texas has done just that through its exclusionary rule. 38.23 very clearly and expressly states that the exclusionary rule applies both to private citizens as well as law enforcement.

I saw the Tx law when it was posted. That is quite a broad and impressive protection. CA does not have a similar protection. I think the OP mentioned that his attorney was lamenting that it's been watered down by the courts, which is not suprising. I have some interest in reading the opinions of those familiar with Tx law and how it would/could apply. I'm sure a lot could hinge on what the officer was told by the witness and how the "exingent" circumstance may have been created.

 

[BOR]

I have some interest in reading the opinions of those familiar with Tx law and how it would/could apply. I'm sure a lot could hinge on what the officer was told by the witness and how the "exingent" circumstance may have been created.

I did some online research and it helped some. Pay a visit, and I may too, to the law library of the local college/univerity's law school, they have "State collections", some case law reading may provide some insight.

 

[FlyingRon]

I guess my STBX got off lucky then, he had 3 or 4 failure to registers during that 10 years, but the TBI still approved his release from the registry just last year.

I think those aren't barring, another sex offense would have been. One sex offense, you can get excused in ten years. Two, you are stuck for life.

 

[justalayman]

For what it is worth....

A police officer is not only allowed but bound to investigate a crime that has been witnessed and reported.

Let's say that you were stabbing her instead of... well... schtupping the little girl.

Would you still be saying that the police could not and should not investigate?
.

the question hasn't been asked yet but just what crime was the GF reporting? In general, sex is not a crime so unless the ex GF knew the current GF was 16, she was not aware of any crime being committed. Even knowing her age, I would have to wonder if she was aware of the age of consent laws.

So, what crime did she report that allowed this to be seen as the protection of a child rather than a peeping tom breaking the law?

 

[medic5]

My question is. Doesnt the girl that went onto my property in the backyard and peeked through my window blind invoke 38.23(a)?
She was a private citizen conducting a search. Tell me how it doesnt?

 

[justalayman]

have you read the other thread?


there are two posts that I believe are important:

CDWJava One question will be whether or not the police believed that the girl that led them to your window had the lawful right to grant them permission to enter the yard. If the yard is not secured from the general public, the expectation of privacy diminishes somewhat. If she lived there, used to live there, or frequently visited - or claimed to - the police could well have acted on good faith.

If they truly had to maneuver to peak through some sliver of the window, then I suspect the evidence will be tossed. But, it will depend on a great many factors that we do NOT know - like what the police will say to justify their actions.

caveman lawyer

The exclusionary rule in Texas applies to both law enforcement as well as private citizens. This sure sounds like an unlawful search to me. I'd want to see a picture of the layout of the yard and so forth to really make the call but it sounds like this private citizen is arguably trespassing in order to gain this vantage point.

based only on the plain language within the rule and with no other information provided, to me, it would appear it should prevent the inclusion of the peeping tom incident but I think what CDWJava stated would be very important as well as exactly what the ex GF claimed that would cause the officer to sneak around your house and peek into your window.

 

[StevenJ_420Law]

After thinking aobut it and texas law and reading a little on that and my general opinion that most cases are served best by motions and continuances and with an understanding I have nothing to lose and no experience in texas other than miserable drives through it..

I dont think I would give up until after the suppression hearing at least!

Your case, IMO, should be dropped to a Misd with 3-5 years probation and no registration. MAYBE a little work release county time or something.

Whats the problem with shooting for that deal? They are hammering you pretty good insisting on a felony and lifetime registration for this.

I know you are facing prison, but you surely fit all the legal criteria for a grant of probation. It is tough to stay the course though. Has your lawyer said there is no chance at a misdemeanor plea?

Whats the rush to accept that attrocious deal?

 

[medic5]

He says thats all they are willing to offer and he said he was using the possible suppression as leverage to get me the 7 years. But the more i read 7 years plus registration is a standard deferred deal. Im afraid if i deny this deal and go after the suppression and lose they will make the deal heavier.

Also the 2 cops that were involved were fired. One was chasing his ex while driving drunk with city weapons in his personal vehicle. Also he wasarrested 3 times in one week and made the news. The other was fired for altering his time cards and got another job a a cop and was fired in that city for beating up a few people.

 

[StevenJ_420Law]

In CA, we have "pitchess" motions to get into those officers back grounds as part of the case, especially where there could be misconduct, does TX have similar motions?


Is this a court appointed lawyer or did you hire him? If he is court appointed, has he requested funds for a private investigator to work on your behalf?

This is the most important fight of your life, keep researching and studying and dont get short shifted.

In my experience, the deals get better as the matter goes on. They would rather avoid jury trial.

 

[medic5]

Thanks steven for helping. My lawyer is hired. As far as pitches im not sure. How would i go about getting this info?

Also i figured the deals got worse but i guess im just backwards lol.

Also does the conduct of officers now play any role in the suppression phase?

 

[medic5]

also there were no trespassing signs on the trees that were visible to cars passing by. they were still up the night of the incident but were not there the day after. someone took them down. either my ex or the cops. also my roommate who is the lease holder of the house had already verbally warned my ex to stay off the property about a week before.

does this play a key role in the suppression phase?

one more question. maybe someone can break it down for me

38.23(a) points at evidence illegally obtained my officers or private citizens.
well my ex didnt obtain the evidence but rather she violated my expectation of privacy by peeking through the window blind after stepping onto my property.

does this take away 38.23(a) since she didnt gather evidence?