How To Beat A Public Lewdness Charge In Texas: A Former Prosecutor Tells You How! (2022)

Have you been arrested and charged with Public Lewdness in Fort Worth or in the surrounding cities of Tarrant County, Texas? If so, you need the help of an aggressive and experienced criminal defense attorney that has proven results when dealing with criminal cases in the criminal courts of Tarrant County.

Texas criminal law provides for certain types of sexual behavior to be classified as a criminal act, even if the actions take place between consenting adults. If you are facing criminal prosecution for Public Lewdness, you must understand that this is a crime that must be taken seriously and aggressively defended to prevent this charge from staying on your criminal record.

Upon first glance, many people see the crime of public lewdness as a minor crime that they can manage on their own. However, because the crime of public lewdness is an arrestable offense in Texas, you must make all efforts to resolve your criminal case in a fashion that will allow the arrest to be removed from your criminal record. Sustaining a conviction for public lewdness will result in limiting your future employment and personal opportunities. Most employers see this crime on your criminal record and assume you are perverted or have deeper issues that create a risk for their organization. You do not want to live your life always having to explain a public lewdness arrest on your criminal record.

What Constitutes Public Lewdness In Texas?

Most people refer to the public lewdness law in Texas as the criminal law affecting sex in public. This is a true statement in that public lewdness is labeled a sex crime involving sexual activity between consenting partners that non-participants are able to observe.

Under Texas Penal Code, Section 21.07, the Tarrant County District Attorney’s Office will be required to prove the following elements of Public Lewdness beyond a reasonable doubt:

a person commits the criminal offense of Public Lewdness if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

  • Act of sexual intercourse;
  • Act of deviate sexual intercourse;
  • Act of sexual contact; or
  • Act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl. (Effective 2017, this provision is now covered under the Texas criminal offense of Bestiality)

Although there are a number of factual scenarios under which someone may be arrested for Public Lewdness, the most common instances of arrest for Public Lewdness in Tarrant County involve sexual behavior at a location that creates a high risk someone might see you, thereby resulting in the alleged victim being offended or alarmed by the sexual behavior. For example, sexual activity during a movie in a movie theater, young couples engaged in sexual activity in the backseat of their car, or young couples engaged in sexual activity in a place easily accessible by the public.

What Is The Definition of “Public Place” For A Public Lewdness Charge?

Texas law is specific in the definition of “public place” for criminal charges. Public place is defined as “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.”

For example, we represented a client that was charged with public lewdness for engaging in sexual activity with his girlfriend in his car that was parked in an apartment complex parking lot. When he hired us, he wanted to let us know that this was not a public place because the apartment complex was private property and was surrounded by fences and a gate. Although our client had other defenses to the crime that we were able to capitalize on, I had to explain to the client that this was considered a “public place” by Texas criminal law because a substantial group of the public (the apartment complex residents) had access to the common area of the parking lot. Additionally, the car they were in during the sexual activity was located in an area that a substantial portion of the public had access to at the time.

What Does “Reckless” Mean For Public Lewdness In Texas?

As we discussed earlier, in order to be convicted of the crime of Public Lewdness, the prosecutor must prove beyond a reasonable doubt that you engaged in sexual activity in a place that you were RECKLESS about whether another person is present who will be offended or alarmed.

Texas criminal law defines recklessness as “disregarding a substantial and unjustifiable risk that the result will occur.” In plain language, recklessness means you recognized the substantial risk of your behavior, but you decided to ignore the risk and do it anyway! For example, having sex with someone in the bed of a truck surrounded by other parked cars would be behavior that a reasonable person would know is highly risk but ignored the risk and performed the act.

Legal Defenses To Public Lewdness In Texas?

Your number one priority after being arrested for public lewdness is to find the best criminal defense attorney in Fort Worth, Texas to defend your freedom and criminal record. After hiring your criminal attorney, you should then research and become familiar with Public Lewdness laws in Texas and the possible legal defenses available to you.

As you can see from the criminal elements defined in Texas Penal Code, Section 21.07, whether the acts were committed in a public place and whether someone acted recklessly are areas that must be thoroughly investigated and developed in order to determine if the Tarrant County District Attorney’s Office has sufficient evidence to prove their case. Let us examine a few legal defenses that may apply to your defense strategy.

The Sexual Activity Was Not In A Public Place

What if you did engage in sexual activity with someone but it was not in a public place? If the activity was not performed in a public place, it will make for a stronger defense for your criminal defense lawyer.

Legally, the State of Texas can still prove the crime of public lewdness if they can show beyond a reasonable doubt that you were reckless about whether another person would be present that would be offended or alarmed.

For example: we represented a client charged with public lewdness because he was having sex with his girlfriend in a tent on a parcel of public land in a park. The activity was taking place late at night and nobody else was camping in the area at the time. During the sexual activity, someone else pulled up and got out to walk by the lake and observed our client and his girlfriend in sexual activity. The police were called, and an arrest was made because they were in a public park and the police officer believed the client was being reckless.

Was this reckless behavior? Would a reasonable person believe that there was substantial risk someone would see the sexual activity in this example? We argued to the prosecutor that the client was not being reckless because no one else was nearby camping and a reasonable person would not believe anyone else would be present to observe. We also argued that because the sexual activity was taking place in the tent, they were being extra cautious to avoid the possibility anyone else would be able to observe the sexual activity. As a result, our client was able to have his public lewdness case dismissed and eligible for an expunction of the arrest and criminal case.

Sexual Activity Did Not Take Place

What exactly did the witness claim to see? Are they able to testify that they observed sexual activity? Or did they just assume that sexual activity was going on? Failure by the State of Texas to prove each and every element of the crime beyond a reasonable doubt will result in a dismissal of all charges or a not guilty verdict at a jury trial.

For example, we represented a client that had been arrested for public lewdness for alleged sexual activity with his girlfriend in a car. The witness spoke to the police officer and said she believed they were having sex. However, as the criminal case was set for a jury trial, a further questioning of the witness revealed that the windows were foggy, and the witness assumed they were having sex. Upon cross examination, the witness could not say for sure if they were engaging in sexual activity or merely kissing. Engaging in sexual activity is a required element of the crime of public lewdness. If your criminal defense lawyer can help establish reasonable doubt to the element of sexual activity, your public lewdness case may be dismissed or receive a not guilty verdict at a jury trial.

What are the Criminal Consequences for a Public Lewdness Conviction?

The crime of Public Lewdness is classified as a Class A misdemeanor under Texas criminal law, punishable by a term in the Tarrant County jail of up to one year and a fine not to exceed $4,000.

Although Public Lewdness is classified as a misdemeanor, a conviction for this crime can be extremely damaging to your future prospects. Because the crime implies an element of sexual deviancy, many employers view an arrest for this offense as a more serious criminal violation and will not consider you for prospective employment.

Can A Public Lewdness Charge Be Dismissed?

It is possible. By hiring an experienced and aggressive criminal defense attorney, you have the best chance of attacking the prosecutor’s evidence to establish reasonable doubt. Our law firm has found several ways to negotiate a dismissal of public lewdness charges:

Dismissal For Lack Of Evidence

The best criminal defense attorneys know that you must hold the State of Texas to their burden of proving every element of the criminal offense. Each doubt created by your criminal defense team creates leverage for an opportunity to get your public lewdness charge dismissed.

The best way to develop reasonable doubt is to thoroughly review the evidence with your criminal attorney and formulate a defense plan that highlights the weaknesses of the case for the prosecution. At The Hampton Law Firm, we make it a point for you to review your evidence and provide input so that you have a strong criminal defense strategy.

Conditional Dismissal

If the facts of the public lewdness charge are arguable, your criminal lawyer may be able to negotiate you a conditional dismissal. A conditional dismissal is an agreement by the State of Texas to dismiss your case in exchange for you completing certain conditions, such as: community services, classes, donations to charities, etc. Upon completion of these negotiated conditions, your case is dismissed, and you are eligible for an expunction of the arrest and charges.

Not Guilty Verdict

Finally, if the prosecutor persists in being unreasonable in negotiating, your criminal attorney can demand a jury trial to exonerate you. Remember, under the United States and Texas Constitutions, you have a right to a criminal jury trial demanding the State of Texas to prove each element of the crime beyond a reasonable doubt.

As a former Tarrant County prosecutor and experienced criminal defense attorney, I will take the time to answer all of your questions, thoroughly investigate your case and produce a pre-trial strategy to seek a dismissal of your criminal charges and future expunction of your arrest record.

At The Hampton Law Firm, you have the opportunity to work with a team of Former Prosecutors with over 85 years of criminal law experience and over 550 criminal jury trials in the Tarrant County and Dallas County, Texas area. You owe it to yourself to hire the best criminal defense attorneys in Tarrant County to protect your freedom and your future!

Call The Hampton Law Firm today at 817-826-9905 to schedule a free consultation to determine your rights and legal options.