Houston Attempted Sexual Assault Attorney

Tad Nelson & Associates: Attempted Sexual Assault Defense — Houston, Texas

Sexual assault allegations can have a devastating impact on the accused individual, even if the charges are false or never proven in court. Even in cases where there is insufficient evidence that sexual assault took place, accusers and prosecutors may still be able to convince a jury that an attempt was made. Indeed, attempted sexual assault is also a criminal offense under the Texas Penal Code and carries substantial penalties.

An “Incomplete” Offense

A crime does not cease to be a crime just because it is unsuccessful. The Penal Code refers to such attempts as “inchoate” or incomplete offenses. Specifically, it is a crime to “with specific intent to commit an offense” taking any action that amounts “to more than mere preparation” but still “fails to effect the commission” of the intended crime.

In the context of attempted sexual assault, the prosecution can establish the defendant’s “intent to commit an offense” solely with circumstantial evidence. This includes testimony from the victim as well as inferences drawn from the “acts, words, and conduct” of the accused. Put another way, a jury may conclude that a defendant formed the “mental culpability” to commit sexual assault by looking at all of the circumstances surrounding the alleged acts.

Court Upholds Dallas Massage Therapist’s 10-Year Prison Sentence

How does this work in practice? Consider a recent attempted sexual assault case from Dallas. The defendant in this case worked as a massage therapist. The accuser was a 29-year-old woman who received massages from the defendant on two separate occasions.

The first massage was without incident. But during the second massage, the accuser testified that the defendant engaged in a number of acts that culminated in sexual assault. She said the defendant positioned himself during the massage “so that she felt his genitals in her hands.” He also massaged her back in such a manner as to leave her “fully exposed.” At one point, she said the defendant “massaged her rear end and then put his hands between her buttocks” in a “forceful manner.” He then told her to turn over, exposing her bare breasts, which she said he proceeded to massage.

Finally, as the defendant massaged her thighs, the accuser said he “brushed his hand against her vagina several times.” This last alleged act constitutes sexual assault under Texas law. The accuser said she informed her fiance “a couple of days” after this alleged assault and together they reported it to the police.

A police detective interviewed the defendant with his consent. During this interview, the defendant conceded there was no legitimate professional reason for him to “have any contact with a client’s vaginal or breast area.” At trial, the detective testified as to her opinion that the defendant’s actions were “more than mere preparation” and “was an attempt at a sexual assault, if not a complete sexual assault.”

Based largely on the testimony of the accuser and the detective, the jury convicted the defendant of attempted sexual assault. The trial court sentenced him to 10 years in prison. On appeal, the defendant argued the evidence was insufficient. He pointed to several portions of the accuser’s testimony that, he contended, undermined her statement that she never consented to “any sexual act.” For example, he said the accuser “never objected” to any of the moves he made even though he “was constantly asking her if this is ‘okay.’” He also pointed to the fact the accuser did not “get up and leave” when he started massaging her breasts.

The Texas Fifth District Appeals Court rejected the defendant’s arguments. The court said the accuser’s allegedly contradictory statements were “of little import when place in context.” The court credited the accuser’s testimony that she was “distressed, scared, and in shock, and was unable to respond to anything appellant was asking.” She “froze” in the moment and “did not want to believe what was happening.” The court said the jury was entitled to infer that the accuser was “unaware that the sexual assault was occurring and did not consent to penetration of her vagina.”

Do Not Deal With a Sexual Assault Charge Alone

If you are suspected of attempted sexual assault, you should not agree to a police interview outside the presence of counsel. A sexual assault allegation is not a simple misunderstanding that you can clear up on your own. Also keep in mind that attempted sexual assault is usually charged a “lesser included” offense. This means that you can be charged with both sexual assault and attempted sexual assault, which allows the jury to find you guilty of either count.

The law in this area is complicated and often stacked in favor of the accuser. This is why it is critical to work with an experienced Houston sexual assault attorney. Contact the Law Offices of Tad Nelson & Associates today at (281) 280-0100 if you need immediate legal assistance.