Shane Peter Phelps

Bar / Professional Activity

• Fellow - College of the State Bar of Texas, 2024
• Inducted into the Texas Bar Foundation., 2025
• Unites States Supreme Court March 13, 2020
• Organizer and first president of the Brazos County Criminal Defense Lawyers Association. Responsible for affiliating BCCDLA with the Texas Criminal Defense Lawyers Association (TCDLA). BCCDLA meets monthly and brings together criminal defense attorneys for CLE and to address local issues of importance to the defense bar.

Verdicts / Settlements (Case Results)

• Not Guilty Verdict in Aggravated Assault with a Deadly Weapon case tried before a jury in Collin County in which the client was alleged to have shot his wife in the back. State of Texas v. Troy Hammond., 2023
• No-Billed, Capital Murder, No-Billed by the Walker County Grand Jury following review of our Grand Jury Packet, State v. M.W., 2011
• Dismissed, Aggravated Assault with a Deadly Weapon, Aggravated Assault with a Deadly Weapon
• Theft (Class B), Reduced, Reduced to Class C Deferred Adjudication
• Dismissed, Evading Arrest with a Vehicle (3rd Degree), State v. J.E., Evading Arrest with a Vehicle, (3rd Degree) Dismissed, Milam County
• Dismissed, Aggravated Assault, Aggravated Assault with a Deadly Weapon, Brazos County, State v. J.M.
• Not Guilty Verdict, Aggravated Assault with a Deadly Weapon, State v. T.H., 2023
• Dismissed, Felony DWI
• Not Guilty Verdict, Aggravated Robbery/Murder x2, 2023, State v. M.R.
• Found Not True, Motion to Adjudicate/Felony Assault Family Violence (3rd Degree), Found Not True by Court after contested hearing 2013 (State v. R.R.)
• Reduced, Felony Possession of a Controlled Substance, Second-degree felony Possession of a Controlled Substance (Adderall): Reduced to Misdemeanor Deferred Adjudication
• Evidence Suppressed, Murder/Aggravated, Robbery/Prohibited Weapon, State v. S.S., 2022
• Motion to Adjudicate Dismissed, Motion to Adjudicate on Possession of Marijuana 4oz. – 5 lbs, Motion to Adjudicate on Possession of Marijuana 4oz. – 5 lbs
• Both Charges Dismissed, 2 Counts of Aggravated Assault
• Case Dismissed, Criminal Trespass – Property, Criminal Trespass – Property
• All Charges Dismissed, D.W.I. (Class B), D.W.I. (Class B), Unlawfully Carrying a Weapon (Class A), False Report to Police Officer (Class A) – All charges Dismissed, weapons recovered for client, expunction pending. 2013 (State v. C.G.)
• All Charges Dismissed, D.W.I. (Class B), D.W.I. (Class B), Unlawfully Carrying a Weapon (four counts, Class A), Possession of Marijuana under two ounces (class B), Possession of a Dangerous Drug (Class A) – All charges dismissed except POM deferred adjudication with agreement for expunction; all weapons recovered for client. 2013 (State v. K.Y.)
• Reduced to Class C Deferred Adjudication, Altered Handicapped Placard (Class A), Reduced to Class C Deferred Adjudication, expunged 2013 (State v. L.W.)
• Reduced to Class C Deferred Adjudication, Criminal Trespass to a Habitation (Class B), Reduced to Class C Deferred Adjudication 2013 (State v. J.K.)
• Refused After Our Investigation, Possession of a Controlled Substance, Penalty Group 2, 4-400 grams (2nd Degree) – Refused after our investigation 2014 (State v. D.B.L.)
• Refused After Our Investigation, Tampering with Evidence (3rd Degree), Refused after our investigation 2014 (State v. O.S.)
• All Charges Refused, Aggravated Kidnapping (1st Degree), Aggravated Kidnapping (1st Degree), Sexual Assault of a Child (2nd Degree), Improper Visual Photography (State Jail Felony) – All charges refused after our investigation 2014 (State v. Z.H.)
• Reduced to Class C Deferred Adjudication, Possession of Marijuana, Possession of Marijuana under two ounces (Class B) – Reduced to Class C Deferred Adjudication, expunction eligible 2015 (State v. S.P.)
• Dismissed, Theft $20,000-$100,000 (3rd Degree), Dismissed 2015 (State v. C.S.)
• Dismissed, Assault on Peace Officer (3rd Degree), Harassment of a Public Servant (3rd Degree) – Dismissed 2014 (State v. A.Y.)
• D.W.I Refused, POM Reduced, D.W.I (Class B); Possession of Marijuana, D.W.I (Class B); Possession of Marijuana under two ounces (Class B) – D.W.I refused, POM reduced to Class C Deferred Adjudication 2014 (State v. P.D.G.)
• Reduced to Misdemeanor Deferred Adjudication, Possession of a Controlled Substance, Penalty Group 2, less than one gram (State Jail Felony) – Reduced to misdemeanor Deferred Adjudication 2014 (State v. D.D.)
• Dismissed, Assault by Contact (Class C), Dismissed 2014 (State v. A.M.)
• Reduced, D.W.I (Class B), Reduced to Obstruction Highway for Deferred Adjudication 2015 (State v. C.B.)
• Refused After Our Investigation, Prostitution (Class B), Refused after our investigation 2014 (State v. I.I.)
• Reduced to Misdemeanor Deferred Adjudication, Possession of a Controlled Substance, Penalty Group 2, less than one gram (State Jail Felony) – Reduced to misdemeanor Deferred Adjudication 2014, early termination of probation 2015 (State v. P.B.)
• Reduced to Class C Deferred Adjudication, Criminal Mischief $500-$1500 (Class A), Reduced to Class C Deferred Adjudication 2015 (State v. I.S.)
• Reduced to Class C Deferred Adjudication, D.W.I (Class B), Reduced to Class C Deferred Adjudication, expunction eligible 2015 (State v. N.M.)
• Reduced to Class C Deferred Adjudication, D.W.I. (.14; Class B), Reduced to Class C Deferred Adjudication, expunction eligible 2015 (State v. V.R.)
• Dismissed, Possession of a Controlled Substance, Penalty Group 1, less than one gram (State Jail Felony) – Dismissed 2014 (State v. L.P.)
• Refused Following Our Investigation, Possession of a Controlled Substance, Penalty Group 2, 4-400 Grams (2nd Degree); Three counts Misdemeanor controlled substance charges – Refused following our investigation; three misdemeanor charges to be dismissed. 2015 (State v. J.D.)
• Dismissed, Possession of Marijuana, 2-4 Ounces, Drug Free Zone (State Jail Felony) – Dismissed 2015 (State v. S.A.)
• Negotiated pre-trial diversion on Class B, Possession of Marijuana, 2-4 Ounces, Drug Free Zone (State Jail Felony) – Negotiated pre-trial diversion on Class B misdemeanor, seized vehicle and more than $15,000 recovered for client 2015 (State v. C.M.)
• Reduced to Class B, D.W.I. >.15 (Class A), Reduced to Class B Obstructing Highway Deferred Adjudication, publicly sealed (Non-Disclosure granted) 2014 (State v. H.J.)
• Dismissed, Possession of Child Pornography (Two Counts; 3rd Degree), (Two Counts; 3 rd Degree) – Both counts Dismissed, no sex offender registration 2015 (State v. B.M.)
• Dismissed, Failure to Identify (Class B), Dismissed, Expunction Pending 2015 (State v. L.W.)
• Reduced to Misdemeanor Deferred Adjudication, Theft $1,500-$20,000 (State Jail Felony), Reduced to Misdemeanor Deferred Adjudication 2014 (State v. K.J.)
• Refused, Possession of False ID, Possession of False ID (Class A)/Minor in Possession (Class C) – Class A Refused and MIP Dismissed 2015 (State v. B.B.)
• Refused Following Our Investigation, Furnishing Alcohol to a Minor (Class A), Refused following our investigation 2015 (State v. M.G.)
• Refused Following Our Investigation, Manufacture/Delivery of a Controlled Substance, Penalty Group 1A, 4-400 Grams (1st Degree) – Refused following our investigation 2015 (State v. R.A.)
• Refused Following Our Investigation, Tampering with Evidence (3rd Degree), Refused following our investigation 2015
• No Billed by Grand Jury, Aggravated Assault w/Deadly Weapon/Bottle (2nd Degree), No Billed by Grand Jury following our investigation 2014 (State v. G.H.)
• Reduced to Class C Deferred Adjudication, Possession of a Controlled Substance, Penalty Group 3, less than 28 grams (Class A), Possession of Marijuana, less than two ounces (Class B) – Both reduced to Class C Deferred Adjudications, Expunction Pending 2015 (State v. D.O.)
• Dismissed, Aggravated Assault w/Deadly Weapon (2nd Degree), Dismissed 2015 (State v. S.M.)
• Negotiated Deferred Prosecution on lesser charge, Aggravated Sexual Assault of a Child/Juvenile, Negotiated Deferred Prosecution on lesser charge, no sex offender registration 2015 (In the Matter of R.C.)
• Reduced to Class C Deferred Adjudication, Theft $50-$500 (Class B), Reduced to Class C Deferred Adjudication, Expunction Pending 2015 (State v. M.D.)
• Negotiated Misdemeanor Pre-Trial Diversion, Possession of a Controlled Substance, Penalty Group 1, less than a gram, Drug Free Zone (3rd Degree); Possession of Marijuana under two ounces, Drug Free Zone (Class A) – Negotiated misdemeanor pre-trial diversion with agreement for expunction 2015 (State v. L.L.)
• Dismissed, Possession of a Controlled Substance, Penalty Group 2, less than a gram (State Jail Felony), Penalty Group 2, less than a gram (State Jail Felony) – Dismissed 2015 (State v. C.F.)
• Reduced to non-aggravated Manslaughter charge, Murder (1st Degree), Reduced to non-aggravated Manslaughter charge (2nd Degree), 8 years 2014 (State v. B.S.)
• Dismissed, Burglary of a Vehicle (Class A), Dismissed 2015 (State v. R.R.)
• Reduced to Class C Deferred Adjudication, Possession of Marijuana (Class B), Reduced to Class C Deferred Adjudication, Expunction Pending 2015 (State v. J.H.)
• Refused After Our Investigation, Unlawfully Carrying a Weapon (Class A), Refused after our investigation; arrest expunged 2015 (State v. G.S.)
• Reduced to Class C Deferred Adjudication, Possession of Marijuana (Class B), Reduced to Class C Deferred Adjudication, Expunction Pending 2015 (State v. B.C.)
• Refused after our investigation, Assault/Family Violence (Class A), Assault/Family Violence (Class A) – Refused after our investigation 2015 (State v. V.K.)
• Dismissed, Sexual Assault of a Child (2nd Degree), Sexual Assault of a Child (2nd Degree) – Dismissed at trial 2015 (State v. J.J.)
• Reduced to Class C Deferred Adjudication, Theft $50-$500 (Class B), Reduced to Class C Deferred Adjudication, Expunction pending 2015 (State v. A.B.)
• Refused After Our Investigation, Criminal Mischief $1,500 – $20,000 (State Jail Felony), Refused after our investigation 2015 (State v. J.W.)
• Refused After Our Investigation, Assault/Family Violence (Class A), Refused after our investigation 2015 (State v. D.K.) Expunged 2015.
• Reduced to Class CTheft $50-$500 (Class B), Reduced to Class C Deferred Adjudication 2015 (State v. R.R.) (Pending Expunction)
• Reduced to Class A Misdemeanor Assault, Aggravated Assault w/Deadly Weapon/Bottle (2nd Degree), Reduced to Class A Misdemeanor Assault 2015 (State v. C.F.)
• Refused After Our Investigation, Aggravated Assault w/Deadly Weapon/firearm (2nd Degree), Refused after our investigation 2015 (State v. G.B.)
• Refused after our investigation, Aggravated Assault w/Deadly Weapon/handgun (2nd Degree), Refused after our investigation 2015 (State v. W.M.)
• Reduced to Class C Misdemeanor, Theft $50-$500 (Class B), Theft $50-$500 (Class B) – Reduced to Class C Misdemeanor Deferred Adjudication 2015 (State v. P.C.)
• Reduced to Class C Misdemeanor, Criminal Trespass to Habitation (Class A), Reduced to Class C Misdemeanor Deferred Adjudication (Pending expunction) (State v. W.A.)
• Reduced to Misdemeanor, Burglary of a Habitation (2nd Degree), Reduced to Misdemeanor 2014 (State v. P.M.)
• Dismissed, Motion to Adjudicate/Burglary of a Building (State Jail Felony), Dismissed 2015 (State v. B.R.)
• Reduced to Misdemeanor Deferred Adjudication, Aggravated Assault w/Deadly Weapon/knife (2nd Degree), Reduced to Misdemeanor Deferred Adjudication 2015 (State v. P.M.)
• Dismissed, Aggravated Assault w/Deadly Weapon/knife (2nd Degree), Dismissed 2013 (State v. M.N.)
• Dismissed, Aggravated Sexual Assault of a Child (1st Degree), Dismissed 2014 (State v. C.L.)
• Not Guilty by Jury, Indecency w/Child by Contact (2nd Degree), Not Guilty by jury 2013 (State v. J.Z.)
• Not Guilty by Jury, D.W.I. (.23 blood), Not Guilty by jury 2014 (State v. A.C.)
• Dismissed, Aggravated Assault/Deadly Weapon/Peace Officer, Dismissed 2015 (State v. A.H.)
• Refused After Our Investigation, Theft (State Jail Felony), Refused after our investigation 2015 (State v. S.K.)
• Refused After Our Investigation, Sexual Assault (2nd Degree), Refused after our investigation 2015 (State v. T.G.)
• Dismissed at Trial, Aggravated Robbery (1st Degree), Dismissed at trial 2015 (State v. D.L.)
• Dismissed at Trial, Aggravated Robbery (1st Degree), Dismissed at trial 2015 (State v. J.M.)
• Dismissed at Trial, Assault/Family Violence (Class A), Dismissed at trial 2015 (State v. N.G.)
• Acquitted, Indecency with a Child, Acquitted by jury
• Acquitted, Indecency with a Child, Acquitted by jury
• Quashed and Dismissed, Fleeing a Police Officer, Quashed and dismissed
• Reduced, Evading Arrest, Reduced to Class C Misdemeano
• Reduced, Driving While License Suspended, Reduced to Class C Misdemeanor deferred
• Dismissed, Possession of a Controlled Substance, Possession with Intent to Deliver a Controlled Substance: Dismissed
• Sentence Reversed, Possession of a Firearm by a Felon, 15-year sentence reversed on Motion for New Trial
• Reduced, Felony Continuous Family Violence, Reduced to a Class C Misdemeanor
• Dismissed, DWI-1st (Harris County): Dismissed (.12 blood test)
• Reduced DWI-1st, (Travis County): Reduced to Class C Public Intoxication
• Dismissed, Tampering with Evidence (Felony, Brazos County): Dismissed (plead to misdemeanor possession of marijuana)
• Sexual Assault, Rejected after our investigation, State v. Z.M., 2023
• Evidence Suppressed DWI >.15, State v. Z.J., 2024
• DWI Dismissed, DWI dismissed after motion to suppress, granted, Brazos County v. Z.J., 2024
• Sexual Assault Dismissed, Wilson County v. T.M. 2024
• Harassment Dismissed, State v. D.C., 2022
• Title IX, Accusation of Sexual Assault, Not responsible, State v. Z.M., 2023
• Dismissed with Agreement to Immediately Expunge (on day of trial)Attempted Theft, $2,500-$30,000, Attempted Securing Execution of a Document by Deception, State v. G.M., 2023
• Not Guilty Verdict, DWI, State v. B.B., 2020
• Appellate Reversal and Dismissal, Murder x 2, State v. D.L., 2019
• Obtained a not guilty verdict in Brazos County in a jury trial in which the client was charged with Murder and Aggravated Robbery. State v. Marcos Ray, 85th District Court, Brazos County, Texas., 2023
• Motion to suppress granted in murder/aggravated robbery/prohibited weapon charges against the client (by appointment) in Brazos County. The State appealed, the case was argued before the Tenth Court of Appeals (by invitation to a special seating of the Tenth Court at Blinn College in Bryan, Texas) in November 2023. Awaiting opinion from the Tenth Court. The issue was third-party consent. State v. Saul Suarez., 2023
• Lasker v. State, 577 S.W.3d 583. Along with co-counsel, William F. Carter, Mr. Phelps represented Dominique Lasker in Waller County, Texas. Dominique was charged with two murders and Capital Murder. The State sought the death penalty, but relented just before trial and offered two murder convictions for 45 years. They were able to persuade the prosecutor to not require Dominique to waive his appellate issue on the Interstate Agreement on Detainers Act (IADA). Mr. Phelps was appointed by the Court to represent Dominique on appeal. After submitting their brief and arguing the case before the First Court of Appeals in Houston, the Court handed down an 3 – 0 opinion reversing the convictions and ordering the charges dismissed with prejudice., 2019

Videos

• Brazos County finds Bryan mass shooting suspect competent to stand trial, 2025
• Shane Phelps Law | DWI Defense
• Shane Phelps Law | Information for Students
• Shane Phelps Law | Defending Your Rights

Special Licenses / Certifications

• Board Certified in Criminal Law; recertified in 1997, 2002, 2007, 2012, 2017, 2022.
• Designated by the Chemistry and Law Division of the American Chemical Society as a Forensic Lawyer-Scientist.

Pro bono / Community Service

• In 2015, the firm endowed a scholarship at Texas A&M for combat veterans working their way through Texas A&M as members of Delta Company, part of the Corps of Cadets. They have added to the principal of the scholarship every year since. When they endowed the scholarship, Mr. Phelps explained it in a post on his blog, The Atticus Files: https://www.shanephelpslaw.com/the-atticus-files/2015/01/honoring-veterans-by-giving-back/
• Mr. Phelps served on the Board of Directors for Voices for Children, a nonprofit CASA program in Brazos County, Texas. He also served as Vice President and President until his term ended in 2023. While on the board, he contributed financially to all fundraisers as a sponsor. As a result of his service on the board and financial contributions to the organization, he was recognized this year (2024) as Voices for Children's Champion for Children, the highest award the nonprofit gives out annually. In addition, he founded and wrote the by-laws for the Voices for Children/CASA of the Brazos Valley Endowed Foundation and his wife and he donated the starting contribution that began the Foundation. The intent of the Foundation is to provide a revenue stream in perpetuity for the Voices for Children nonprofit.
• Mr. Phelps has been a financial supporter annually to a local charity, Brazos Valley Cares, every year for several years. As a veteran, it is very important to him to support organizations that support veterans in need. His firm has been a VIP sponsor to every annual fundraiser (Steak Your Support) for the past several years.

Honors

• Mr. Phelps’s firm, Shane Phelps Law, was awarded the BBB Torch Award for Ethics this year (2024). Shane Phelps Law was recognized in the small business category (0 – 10 employees), the most competitive category., Better Business Bureau-Heart of Texas Chapter Torch Award for Ethics, https://www.facebook.com/reel/2608614895972838, 2024
• Mr. Phelps and his wife, Jean, were honored by a local nonprofit organization that advocates for foster children in CPS court, as 2024 Champions for Children. The award is given annually to recognize significant achievements in supporting the important mission of Voices for Children. He served on the Voices board of directors for eight years and served as its president and immediate past-president in his final two years. Jean and he also founded the Voices For Children/CASA of the Brazos Valley Endowment Foundation and donated the initial gift that began the Foundation., Champions for Children, https://www.vfcbrazos.org/gala#:~:text=Congratulations%20to%20the%202024%20Champion,Foster%20Parents%20of%20the%20Year%20%2D, 2024

Educational Background

• B.A. English, Rice University, Houston, Texas, 1983

Scholarly Lectures / Writings

• Mr. Phelps authored an ethics article for the September 2023 Issue of the Voice for the Defense, the monthly magazine for the Texas Criminal Defense Lawyers Association. The article related the story of how Atticus Finch Day in Brazos County came to be and emphasized ethics. Atticus Finch Day is an annual gathering of attorneys in Brazos County and surrounding counties (open to the public, as well) the goal of which is for attorneys to gather annually to rededicate themselves to the ideals embodied in the fictional attorney Atticus Finch (from To Kill a Mockingbird), to acknowledge the obligations of holding a law degree, and to committing to zealously representing our clients without tearing each other up in the process. In May of 2024, the firm celebrated the 14th Atticus Finch Day event with guest speaker Gerry Goldstein of San Antonio. For more information about Atticus Finch Day, visit www.atticusfinchday.com., Author, Ethics and the Law/The Story of Atticus Finch Day, Texas Criminal Defense Lawyers Association Voice for the Defense, Texas Criminal Defense Attorneys, 2023
• Mr. Phelps gave a speech to the 35th Annual Rusty Duncan Advanced Criminal Defense Seminar in 2022. He spoke on the offense of online solicitation of a Minor. He was asked to speak, in part, because he helped write the statute when he was a prosecutor. Here is the paper he authored for the speech: Online Solicitation of a Minor Section 33.021, Texas Penal Code 2022 Rusty Duncan Advanced Criminal Law Seminar Texas Criminal Defense Lawyers Association. Shane Phelps Shane Phelps Law Bryan/College Station, Texas 979-775-4100 (O) 979-220-5450 (C) [email protected] Table of Contents Introduction Basics of the Present Online Solicitation of a Minor Statute. Three different ways to commit Online Solicitation of a Minor. Offense Levels Sex Offender Registration Defenses Miscellaneous suggestions/Issues 1. Introduction The Online Solicitation of a Minor statute was enacted and added to Title 7[1] of the Penal Code as §33.021 in the chapter on Computer Crimes in 2005. It was a response to the inadequacy of the Penal Code at the time to address the burgeoning abuse of the internet by child predators. He formerly served as First Assistant District Attorney in Brazos County from 2001 to 2011. Around 2004, he was contacted by one of our local law enforcement agencies with a difficult dilemma. A perpetrator from outside of the state had been talking to a 13-year-old girl for several weeks on the internet. The conversations turned explicit and, eventually, the perpetrator set up an appointment to meet the young girl at a skating rink in Bryan, Texas. The dilemma was whether to allow the girl to actually meet with the perpetrator at the skate rink to strengthen the state’s case against him. Mr. Phelps ultimately could not countenance an actual meeting as they agreed that they did not know who they were dealing with and did not want to put the young girl at any risk. The perpetrator was nevertheless arrested when he showed up at the skating rink and charged with attempted aggravated sexual assault of a child. In the end, the case was pleaded to eight years in prison. That case highlighted for him the shortcomings of the Penal Code in addressing these types of cases in light of the explosion of instances of the internet being used to groom and, ultimately, meet young children for the purposes of sexual exploitation.[2] After raising this issue with the legislative branch of TDCAA, he was contacted and asked to draft a statute to address the use of the internet to sexually exploit young children. The bill was filed, and he testified before the House Committee on Criminal Justice and relayed the specifics of the case he had handled that raised this issue. After some revisions and additions,[3] the bill passed both houses and was signed into law by Governor Rick Perry and became Texas law on September 1, 2005. It was not a perfect statute, but it was a step forward in getting the Texas Penal Code in line with the technological advances of the internet. The stated legislative purpose of the Online Solicitation of a Minor bill was to create an offense that addressed the actual online solicitation of minors by sexual predators without the necessity of letting it get to the point of actual physical contact with a potential victim. At the time of the filing of the bill,[4] at least 34 other states had some form of legislation that criminalized luring or soliciting minors online for sex. As will be discussed later in this paper, there were concerns expressed by him and others about one part of the law (§§(b)) that criminalized just talking in sexually explicit terms with a minor online with the intent to arouse or gratify, a subsection added during the legislative process. The concern was fairly obvious, whether this subsection of the statute ran afoul of the First Amendment. This turned out to be somewhat prescient as this part of the statute was ultimately unanimously held to be unconstitutional by the Court of Criminal Appeals in Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2015), thanks to the extraordinary appellate work of Mark Bennett of Houston.[5] The statute has undergone significant changes since it was passed in 2005, most notably in the wake of the Ex Part Lo case in 2015. 2. Basics of the Present Online Solicitation of a Minor Statute. Three different ways to commit Online Solicitation of a Minor. Effectively, there are three separate offenses created by the Online Solicitation of a Minor statute. Two are contained in §§33.021(b) of the statute, communicating with a minor in a sexually explicit manner and distributing sexually explicit material to a minor. The third offense is contained in §§33.021(c), soliciting a minor to meet with the intent to sexually exploit the minor. For simplicity’s sake while discussing each of these separate “offenses,” he will refer to them as “communicating,” “distributing” and “soliciting.” Subsection (b) of §33.021 states: A Person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A),(B), or (K), Code of Criminal Procedure,[6] the person, over the internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor. Subsection (c) of §33.021 states: A person commits an offense if the person, over the internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.” Communicating and Distributing (§§ 33.021(b)) The offenses involving communicating and distributing share the same elements, with the exception that one addresses communicating with a minor in a sexually explicit manner and the other addresses distributing sexually explicit material to a minor. Both require the intent to commit an offense under Article 62.001(5)(A), (B), or (K), provisions of the Sex Offender Registration statute in the Code of Criminal Procedure. It is important to be familiar with the offenses listed in Article 62.001 that are referenced in §§33.021(b). Not all the offenses that are subject to sex offender registration and listed in Chapter 62 of the Code of Criminal Procedure as reportable convictions or adjudications are implicated in §§33.021(b). Specifically, the offenses referred to in §§33.021(b) are: · Continuous sexual abuse of a young child/disabled individual (TPC 21.02) · Bestiality (TPC 21.09) · Indecency with a Child (TPC 21.11) · Sexual Assault (TPC 22.011) · Aggravated Sexual Assault (TPC 22.021) · Prohibited Sexual Conduct (TPC 25.02) · Aggravated Promotion of Prostitution (TPC 43.04) · Compelling Prostitution (TPC 43.05) · Sexual Performance of a Child (TPC 43.25) · Possession or Promotion of Child Pornography (TPC 43.26) · Trafficking of Persons under TPC 20A.02(a)(3), (4), (7), or (8) The original language of §§33.021(b) was problematic in that it only required an intent to “arouse or gratify the sexual desire of any person” when either communicating with a minor in a sexually explicit manner or distributing sexually explicit material to a minor. When the bill creating Online Solicitation of a Minor was originally filed and debated in the Legislature, concerns were raised as to whether §§(b) might be vulnerable to a Constitutional challenge based on First Amendment grounds. The bill, including this subsection, passed anyway, and was signed into law. The concerns voiced about its constitutionality proved valid when the Court of Criminal Appeals, in Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), held the subsection did, in fact, violate the First Amendment. The Court of Criminal Appeals held that the subsection criminalized content (of speech), not conduct, and therefore implicated the First Amendment. Applying the strict scrutiny standard of review applicable to constitutionality challenges based on the First Amendment, the Court held that the subsection went too far in criminalizing a wide swath of protected speech. The Court struck down the subsection. The legislature, in 2015, responded by amending the statute to include the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K) rather than the intent to “arouse or gratify.” Since Lo, there has not been a successful challenge to the constitutionality of §§(b) as amended by the Legislature in 2015. He thinks that reasonable minds can differ on whether the legislative fix in 2015 cured the constitutionality problem, so keep trying. It is important not to overlook the definition of “sexually explicit” in evaluating an indictment and set of facts alleging a violation of §§(b). “Sexually explicit” is defined at §33.021(a)(3): “Sexually explicit” means any communication, language or material, including a photographic or video image that relates to or describes sexual conduct, as defined by Section 43.25. The definition of “sexual conduct in Section 43.25, addressing Sexual Performance of a Child, is quite broad: “Sexual conduct” means 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. Reading both of these definitions together, it is theoretically possible to be charged and convicted under §§(b) with sending a single “sexually explicit” photograph or video to a minor if the act is done with the intent to commit one of the offenses listed in §§62.01(5)(A), (B), or (K). By the same reasoning, it is also theoretically possible to be charged and convicted under §§(b) for a single brief internet chat or text message that a jury could consider sexually explicit if they also believe that the communication was done with the intent to commit an offense listed in §§62.001(5)(A), (B), or (K). This is emphasized only to illustrate the breadth of the reach of this subsection. Being able to recognize a marginal set of facts within this wide range of potential conduct can be the key to resolving a case under favorable circumstances.[7] Soliciting §§33.021(c) Subsection (c) of the Online Solicitation of a Minor statute addresses the online conduct that was the reason the statute was drafted and passed in the first place. This subsection criminalizes the act of soliciting a minor to meet for sex. The elements of the offense are: · A person · Over the Internet,[8] by electronic mail or text message or other electronic message service or system, or through a commercial online service · Knowingly · Solicits a minor to meet with another person, including the actor · With the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. The elements of the §§(c) offense of Soliciting contain a couple of things worth noting. First, for some reason, this subsection applies to everyone regardless of age. Subsection (b) applies only to persons who are 17 years of age or older. Second, the elements include two culpable mental states, or more precisely, a culpable mental state and a specific intent. While §§(b) contains a culpable mental state of “intentionally,” §§(c) requires only a “knowing” mental state. With regard to the specific intent in each subsection, §§(b) requires the State to prove the specific intent to commit an enumerated offense, while §§(c) requires the State to prove the specific intent that the minor will engage in sexual acts. Because it is the act of soliciting a minor online with the intent to engage in sex with the minor that is the gravamen of this §§(c), §§(d) forecloses any defense that the meeting did not actually occur. An offense under §§(c) is complete at the time of the solicitation and what occurs thereafter is of no consequence, including whether the meeting occurred at all. Mahmoud v. State, 2019 Tex. App. LEXIS 2649 (Beaumont, 2019). If an actor does show up for the meeting, it certainly helps the State’s case, however, especially if he or she shows up with condoms, lubricant and X-rated videos. The constitutionality of §§33.021(c) has been challenged a number of times on various constitutional grounds but no court, including Ex Parte Lo, has ever held this subsection unconstitutional. What is a “minor”? The definition of what constitutes a minor under the Online Solicitation of a Minor statute has evolved significantly. In its original form, effective until September 1, 2015, a minor was defined at §§ 33.021(a)(1) as: (A) An individual who represents himself or herself to be younger than 17; or (B) An individual whom the actor believes to be younger than 17 years of age. After the statute was amended in 2015, the definition of “minor” changed as follows: (A) An individual who is younger than 17 years of age; or (B) An individual whom the actor believes to be younger than 17 years of age. This was a meaningful and important change. Prior to September 1, 2015, a person could be convicted, all other elements being present, just because an officer on the other end of the online communication “represented” him or herself to be younger than 17. Thus, even if the actor truly believed that he was talking to someone 17 or older (perhaps because the actor was engaging in fantasy; more on that later) and wasn’t, in fact, soliciting a minor, he or she could still be convicted of the offense. Scary. The definition as it is codified now either requires the person on the other end to actually be younger than 17 or that the actor actually believes he is talking to a person younger than 17. A sensible and fair revision of the definition. Imagine that. 3. Offense Levels A violation of §§33.021(b), either by communicating or distributing, is a third-degree felony. It is a second-degree felony if the minor is younger than 14 or the actor believes he or she is dealing with a minor younger than 14. A violation of §§33.021(c) is a second-degree felony. Oddly, there is no increase in offense level if the actor solicits a minor younger than 14 or believes he or she is soliciting a minor younger than 14. This may be because of what is called the “School Zone Penalty.” In the last legislative session, the Legislature provided for an enhancement for offenses committed during school hours when the actor knew or reasonably should have known the minor was enrolled in a school as follows: (f-1) The punishment for an offense under this section is increased to the next higher category of offense if it is shown on the trial of the offense that: (1) The actor committed the offense during regular public or private primary or secondary school hours; and (2) The actor knew or reasonably should have known that the minor was enrolled in a public or private primary or secondary school at the time of the offense. This provision increases the offense level of a violation of §§33.021(b) to either a second- or first-degree felony depending on the age or believed age of the minor. Because a violation of §§33.021(c) is a second-degree felony regardless of age, a punishment structure similar to §§(b) would have meant a possible 15-year minimum if age had been a factor in §§(c). Mr. Phelps is of the opinion that the Legislature was unwilling to create such a minimum sentence in this offense. 4. Sex Offender Registration Online Solicitation of a Minor, regardless of whether it is committed under §§33.021(b) or (c), is a registration offense under Chapter 62 of the Texas Code of Criminal Procedure.[9] While it is a “reportable conviction or adjudication” for purposes of Chapter 62, it is not a “sexually violent offense.” [10] The duty to register expires ten (10) years after release from a penal institution or discharge from probation, including deferred adjudication.[11] 5. Defenses The only defense specific to Online Solicitation of a Minor is found in §§33.021(e) which reads: It is a defense to prosecution under this section that at the time the conduct described by subsection (c) was committed: (1) The actor was married to the minor; or (2) The actor was not more than three years older than the minor and the minor consented to the conduct. Curiously, this defense appears to apply only to §§(c). The defense uses the language “it is a defense to prosecution under this section” which, presumably means the entirety of §33.021, but then qualifies the defense by limiting it to “conduct described by subsection (c).” Mr. Phelps thinks that any enterprising prosecutor could figure out a way to charge the conduct under §§(b) and avoid the defense altogether, depending on the facts. However, he would hope that a prosecutor’s sense of justice would lead him or her to not charge an offense under §§(b) if the facts were that the actor was not more than three years older than the minor and the minor consented.[12] Mistake of Fact, §8.02. The mistake of fact defense is found at §8.02 of the Texas Penal Code. It provides: It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the crime. This defense would allow a jury to acquit a defendant if the defendant reasonably believed that the person with whom he or she was communicating or soliciting was, in fact, not a minor. However, it is a bit redundant to the elements of the offenses contained in §33.021 in that a reasonable doubt as to whether a defendant believed he or she was talking to an actual minor would compel an acquittal. The prosecution could certainly argue that the defense does not apply because if the State failed to prove beyond a reasonable doubt that the defendant knew or believed that he was talking to an actual minor, it is just a failure of the State’s burden and not an actual defense. However, Mr. Phelps would always ask for the defense in the Court’s charge to the jury anyway to give the jury as many chances as possible to acquit the defendant. In asking for the charge, make sure to be able to point to specific evidence that your client could have reasonably relied on in believing that he or she was dealing with someone over the age of 17.[13] When considering whether and how to request a mistake of fact charge, it would be helpful to be familiar with the opinions in Ex Parte Victorick, 2014 Tex. App. LEXIS 5429 (Beaumont, 2014) and State v. Paquette, 487 S.W.3d 286 (Tex. App. – Beaumont; 2016. Entrapment §8.06. If your client was arrested as the result of a law enforcement “sting” operation, examine the facts and the communications between your client and the “minor” to determine whether the entrapment defense applies. Section 8.06 of the Texas Penal Code outlines the entrapment defense: It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. The entrapment defense includes both a subjective and an objective component. A defendant must show that he or she was actually induced to engage in the conduct as a result of police persuasion. Further, a defendant must show that the persuasion used by law enforcement was of “such a compelling nature that it would cause an ordinarily law-abiding citizen of average resistance to engage in the conduct.” Garand v. State, Tex. App. LEXIS 10446 (11th Dist.; 2020); England v. State, 887 S.W.2d 902 Tex. Crim. App. 1994). At trial, a defendant must elicit evidence that raises the defense of entrapment. The burden then shifts to the State to disprove the defense beyond a reasonable doubt. Hernandez v. State, 161 S.W.3d 491 Tex. Crim. App. 2005). Every case of Online Solicitation of a Minor should be carefully examined for a potential entrapment defense. Parsing the exact chat or text exchange between the client and the “minor” is critically important. Important considerations are who initiated the conversation at its inception, who first raised any suggestion of sexual activity, who first suggested meeting, the client’s lack of criminal history, whether the client has any other such chats or texts on his phone or device, and whether law enforcement engaged in any persuasion and, if so, to what extent. If you believe that you have a strong argument that entrapment occurred and can demonstrate it to the Court, you may want to consider a pretrial hearing to try to persuade the judge that entrapment occurred as a matter of law. Generally, entrapment is a question of fact for the jury, but a defendant can present the issue in a pretrial hearing to determine whether entrapment occurred as a matter of law. Hernandez, 161 S.W.3d at 498. Fantasy. Prior to September 1, 2015, the Online Solicitation of a Minor statute included an express provision that it was not a defense “that the actor was engaged in fantasy at the time of the offense.” That provision, thankfully, was abandoned in the 2015 revision of the statute. There are people on the internet who engage in what is called “ageplay.” There is an entire community of people on the internet who derive sexual gratification from pretending that they are underage or “littles.” This can even take the form of pretending to be infants with grown adults wearing diapers and sucking on pacifiers.[14] It may be a difficult conversation to have with your client but ask about whether they were engaged in “ageplay.” If they are, the difficult part is in proving it as it is an easy, knee-jerk defense that most juries will dismiss out of hand. Explore with your client whether there is any way to demonstrate this fetish through other chats, membership in any of the websites catering to this activity, or actual testimony. Unfortunately, forwarding this defense can be perilous because it is effectively an admission that your client has some interest in underage minors. Your challenge is to introduce doubt into the minds of the jury that your client believed that the person he was communicating with, distributing sexually explicit material to, or trying to meet was 17 or older and engaged in age-play. Ironically, if the “minor” on the other end of the conversation is a law enforcement officer, that is exactly what they are doing. 6. Miscellaneous suggestions/Issues · How does the State prove it was your client on the other end? If your client does not show for a meeting, the State must show that it was actually your client on the other end of the chat/texting. · If the prosecution is under §§(c), did the client actually show up? While not showing up is not a defense and doesn’t defeat the State’s case, it is some evidence (or lack thereof) that your client, at the time of the alleged solicitation, did not actually intend to solicit the minor for sex. · How extensive was the online conversation? Did it go on over days, weeks or even months? Was it a single chat session? · What exactly was said and by whom? Read and re-read the exchanged chats between your client and the “minor.” There truly is a spectrum of what may or may not constitute “sexually explicit” or whether a solicitation to meet actually occurred. Law enforcement will try to be specific in sting operations but depending on how hard they try to get specific details, the entrapment defense may come into play. · Was there grooming? · How explicit was the conversation or material? Ultimately, that will be a question of fact for a jury to decide. Tactfully raise the issue in voir dire to gauge the prudishness of your panel. · What cues, overt or otherwise, were given as to age? Was age stated overtly? Probably a cop. Were there contradictory clues about age? How did the “minor” get on the website? (Most dating websites require some explicit assertion that the person is over the age of 18.) [1] Offenses Against Property? The Legislature probably put Online Solicitation here because the gravamen of the offense is preying on minors using the internet, computers, emails, texts, etc. The Legislature apparently thought that it fit best in the chapter addressing computer crime. [2] At around this time, Mr. Phelps recalls attending a seminar in which an FBI agent logged into a child-oriented internet (something called “Neo-Pets” as he recalls). “The FBI assumed the persona of a young girl, and within minutes scores of obviously older internet users started messaging him. It was startling. [3] The legislative process is not pretty. [4] House Bill 2228, 79th Legislature. [5] I mean, come on, who gets the entire Court of Criminal Appeals to agree on anything. Way to go, Mark. [6] Chapter 62 of the Code of Criminal Procedure addresses Sex Offender Registration. [7] And by “favorable” I mean a resolution that does not put your client in prison, jail, or subject him or her to sex offender registration. [8] I don’t know why the word “Internet” is capitalized but that’s the way it appears in the statute. [9] Article 62.001(5)(j), Texas Code of Criminal Procedure. [10] See Article 62.001(6), Texas Code of Criminal Procedure. [11] If your client is more concerned about sex offender registration than a conviction and prison time, you may want to consider pleading a deferred adjudication offer to a two-year prison term instead. For example, if your client is offered a 10-year deferred adjudication and does not early terminate, he will be required to register as a sex offender for 20 years (10 years from discharge from probation). If your client serves a two-year prison sentence, he will only have to register for 12 years (10 years after release from a penal institution). It’s a trade-off. If getting off the registry sooner is more important than not being a convinced felon, your client might prefer this route. [12] Imagine a scenario in which the actor was 17, the minor was 15, and both consented to the conduct under §§b, or that the actor and the minor were married. The defense in §§(e) does not appear to apply too either scenario, but it would under §§(c), arguably the more serious conduct. [13] For example, the “minor” sends a photograph, and the person depicted in the photo, despite the assertion that the person is underage in the chat colloquy, obviously looks older than 17. Also, if a photo is sent of the “minor” and there are objects in the background that contradict the assertion that the person in the photo is a minor, such as college-related posters, pennants, etc. [14] I can’t believe that I am typing this. Fair warning: do not google this., Speaker and Author of paper supporting the speech, Online Solicitation of a Minor, TCDLA 35th Annual Rusty Duncan Advanced Criminal Law Seminar, Texas Criminal Defense Attorneys, 2022.”, Speaker and Author of paper supporting the speech, Online Solicitation of a Minor, TCDLA 35th Annual Rusty Duncan Advanced Criminal Law Seminar, Texas Criminal Defense Attorneys, 2022

Other Outstanding Achievements

• Recognized by Crisp in Atlanta as a finalist for Best Law Firm in the Premiere coaching class (approximately 200 other law firms)., 2023
• Published "After the Flashing Lights: A DWI Guide for Texans"; available on Amazon, Barnes & Noble, and Target., 2025
• Founder and organizer, annual Brazos County Atticus Finch Day celebration., 2009

• Furnishing Alcohol to Minors
• Intoxication Manslaughter & Assault
• MIP's (Minor's in Possession)
• Possession of Drug Paraphernalia
• Public Intoxication