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In Texas, the statute of limitations for rape, also known as sexual assault, varies depending on the severity of the offense and the age of the victim.

For cases involving sexual assault where DNA evidence is collected and preserved, there is no statute of limitations. This means that charges can be brought at any time, regardless of how much time has passed since the commission of the crime. Today we see prosecutors bringing cold case sexual assault charges involving rape accusations that were reported 20 0r 30 years ago based on DNA matches. Law enforcement has used DNA ancestry test into cold case crime solving tools.

For cases involving sexual assault where the victim is an adult at the time of the offense, the statute of limitations is typically 10 years from the date of the offense. However, this time limit may also be extended if DNA evidence is collected and preserved.

There is no statute of limitations for aggravated sexual assaults. An aggravated sexual assault occurs when the victim has severely injured or threatened with a deadly weapon. Aggravated sexual assault also includes cases where the victim is mentally or physically incapacitated.

Another scenario where there is no statute of limitations is when the same suspect is a serial rapist. Specifically, when there are 5 or more victims who have been sexually assaulted in the same or similar manner.

If you are investigated or arrested for a sexual assault charge, contact a criminal attorney as soon as possible. Do not talk with the police until you have spoken with a criminal attorney.

The Texas Accomplice law can have serious consequences. I recently answered the question, ” When can I be charged as an accomplice?” I went over how  a person could be held criminally liable as an accomplice under Texas law.  The Texas accomplice law can even lead to a person being charged with a crime he never had the intent to commit.

Let’s again take the example of Joe, Pete and Luke deciding to rob a 7 Eleven. Same plan as before. Joe will drive the car; Pete will have the gun and Luke will grab the money. No one ever mentions shooting anybody. They just want to get the money and get out. However, things go south when the actual robbery goes down.

Joe is waits in the parking lot with the car running. He is ready for a quick getaway. Pete goes in the store and points the gun at the clerk and demands the money in the cash drawer. The clerk opens the cash register but when Luke comes around the counter to grab the money the clerk suddenly hits Luke in the face. Luke falls to the ground and Pete pulls the trigger and shoots the clerk. The clerks falls to floor and dies. Luke and Pete run out of the store without getting any money and jump in the car with Joe. Joe drives off fast.

They get two blocks away and get stopped for speeding. The police spot the gun and can smell gun powder. The police are notified about the 7 eleven robbery.  The police arrest all three men. Under the Texas accomplice law Joe, Pete and Luke will be charged with Capital Murder. Joe and Luke can be charged with Capital Murder even though they didn’t have gun and there was no agreement to shoot the clerk.

Under the Texas accomplice law, “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

So, in our example, Joe and Luke should have anticipated that when Pete brought a loaded gun to rob a store clerk, they should have anticipated someone could get shot and killed.

Should I take a police polygraph test? This is a question a person ask when they are under investigation by the police. Some times during the course of an interrogation or investigation the police detective will ask the suspect if they would be willing to take a polygraph. Most people feel obligated to say yes. They believe if they say no the police will think they are guilty of the crime they are investigating. On some occasions the suspect will even volunteer to submit to a polygraph to clear their name. The answer to the question of “should I take a police polygraph test” is No.

The truth is when the police ask the suspect to take a polygraph test their intent is to use the polygraph examination as a way to get a confession. The detective has almost always made up their mind about the suspect’s guilt and their goal in an interview is to get some type of confession or some type of statement that implicates the suspect. The police will hook the suspect up to a polygraph and their polygraph operator will only briefly interview the suspect. After the test the police confront the suspect and tell him the polygraph test shows he is lying and then they put real pressure on the suspect to confess. Under Texas law the police are allowed to lie to a suspect during an interrogation. Even if a suspect passes the polygraph or results are inconclusive the detective can still tell the suspect he failed and try to get a confession.

The only polygraph a person should take is one under the direction of his or her criminal attorney. A criminal attorney will first make a decision if a polygraph test could be helpful to the defense. If the criminal attorney decides to have his client take a polygraph he will hire a qualified polygraph operator as his expert so that the testing and the client’s interview with the polygraph operator is covered under the attorney client privilege. That way test results and communication with the polygraph operator can not be released to anyone unless the client gives their permission.

An experienced criminal lawyer will choose a well respected polygraph operator. If the polygraph operator isn’t respected in his field or has a bad reputation a prosecutor or law enforcement agency will not give the test results any consideration. That is why it is important to let the criminal lawyer choose the polygraph operator.

An experienced polygraph operator will have a lengthy interview with the client. The criminal attorney and the polygraph operator must work together to get the specific questions needed for the test. It should be emphasized again that this whole process falls under the attorney client privilege.

If there is a good result the criminal attorney makes a decision how and when to use the polygraph results. Polygraph test are not admissible in evidence in a criminal trial in Texas but a criminal attorney can include them as part of a grand jury packet or turn the test over to the prosecutor or the detective. The test can also be used by the criminal attorney during plea negotiations.

If the polygraph results are inconclusive or show deception the results stay in the criminal attorneys file and will never be released. Also the fact that a defendant refused a police officers request to take a police polygraph is not admissible evidence in a trial.

Permanent Protective Orders in domestic violence cases occur when the victim in a domestic violence assault wants to go forward with a protective order that last much longer than an Emergency Protective Order. Unlike an Emergency Protective Order a Permanent or Final Protective Order can only happen if the victim wants to go forward and is cooperating with the prosecution.

A permanent protective order must be obtained through a formal hearing. To issue the order a court must find that family violence has occurred and is likely to occur in the future. Most District Attorney’s Offices require the victim to come to the office and meet with a victim advocate or investigator and write an affidavit which covers the facts surrounding the family violence arrest and other facts which cause the victim to believe family violence will occur in the future. The victim often cites previous violence and threats made by the defendant.

Next a prosecutor prepares a petition with the victim’s affidavit attached and then a sheriffs deputy or constable attempts to serve the defendant with a copy of the petition and a date to appear for court. The defendant must be served before the hearing process begins. If the defendant is served and fails to show up then the Judge can enter an order by default.

If a defendant is served with paper work for a final protective order they should contact an experienced criminal attorney immediately. Chances are the defendant already has hired a criminal lawyer due to an arrest being made for the assault allegation. However sometimes the police delay issuing an arrest warrant and the protective order hearing is the first step in prosecution.

The first decision a criminal lawyer and his client must make is whether to agree to the permanent protective order or have a contested hearing. The affidavit written by the victim must be reviewed in great detail. Victim’s write these affidavits when they are angry and upset and they may exaggerate facts or lie. Often times the criminal attorney can use text, social media post and emails to trap the victim in lies. If this occurs it can greatly weaken the prosecutions case and lead to a dismissal or a plea offer to a lessor offense.

In some cases the attorney and client may decide the best strategy is to agree to the final protective order. If a permanent protective order is entered it sometimes satisfied the victim who may be feel protected and will then agree not to prosecute the defendant for a criminal assault. In other cases the criminal attorney for various reasons may decide it’s better to avoid a hearing and enter an agreement.

If a permanent or final protective order is granted a defendant is almost always required to to complete a Batters Intervention and Prevention Program called BIPP. That class takes a minimum six months to complete. The order also requires the defendant not to have any contact with the victim or go near the victims house or work place. The Order is usually in place for two years but can be extended under special circumstances. The Order will also always be in court records and can’t be sealed or expunged.

If a defendant violates the protective order he or she can be arrested on a new criminal charge. A defendant can even be arrested if the victim initiates contact

Consent is often the key to the defense in sex assault charges in Texas. This issue comes up most often in “date rape” scenarios. Two people get together. They may be out on a date or may have just met at party or a bar. They wind up back at one of the parties residence. Drinking alcohol or using recreational drugs is almost always a factor. Within a day or two a sexual assault allegation is made to the local law enforcement agency. The key to the defense of these sexual assault charge almost always will be consent.

Under the law both parties must consent to the sexual activity. There must be an agreement. If the victim was unable to give consent due to the effects of alcohol or drugs then the police can bring charges. They may allege that the victim drank so much alcohol they either passed out or were too inebriated to give consent. The victim may allege that they were given a drug such as rohypnol or GHB and they have no recall at all of the assault but there is physical evidence sex occurred.

Since alcohol or drugs are usually consumed before sex both parties may have foggy memory of what exactly occurred. When law enforcement begins their investigation a detective will usually ask the victim to show him her phone and review any text messages between the victim and the suspect. Often there are texts between the two parties the days after the incident and these can be used as evidence of lack of consent. These text usually consist of the victim asking the suspect if “they had sex and why”. any answers from the suspect which can be interpreted as proving lack of consent will soon become a key part of the prosecutions case.

Detectives will sometimes try to gather evidence by having the victim make a recorded call the the suspect. The goal is to have the suspect discuss what happened and admit that there was sex and that the victim was was in a very impaired mental state.

Once the suspect becomes aware that he is under suspicion for sexual assault the should contact an experienced sex assault criminal lawyer as soon as possible. The criminal lawyer should immediate begin preparing the defense based on consent. Every witness who saw the suspect and victim together should be identified and interviewed. These witnesses may be able to verify the defendant’s story and show the victim was coherent and knew exactly what was going on. All text messages and any other form of communication made by the victim and suspect should be located and preserved. All social media post made by the victim and suspect should be located and reviewed.

The criminal lawyer should also consider having his client take a polygraph examination. Depending on the facts the polygraph examiner may be able to test on specific facts that go directly to the allegation. Polygraph results can be summited to a grand jury as part of a packet or given to the the prosecution for review.

Sex Assault charges are very serious and can result in a prison sentence. A prison sentence or probation also requires registering as a sex offender for the defendant. If you are a family member is accused of a sex assault get in touch with a sex assault attorney as soon as possible