Case Summaries

Each week, TDCAA staff members summarize the most important cases from Texas and federal criminal courts and provide insightful commentary on how those cases could impact the criminal justice system as well as a link to the opinions. Find a library of previous Weekly Case Summaries here.

Summaries

January 23, 2026

Texas Courts of Appeals

Espinal v. State

No. 07-25-00126-CR                   1/20/26

Issue:

Does sending a text message that includes a picture of one’s genitalia qualify as indecency with a child by exposure under Penal Code §21.11(a)(2)(A)?

Holding:

No. “[T]he presence of the child—rather than the child’s perception or awareness of the exposure—has been the focal point of caselaw exploring the boundaries of the proscribed conduct.” Therefore, the Court concluded that sending an indecent image to a child is insufficient to support a conviction for indecency with a child by exposure. Read opinion.

Commentary:

The appellate court here interprets the “presence” element of Penal Code §21.11(a)(2)(A) to mean physical presence. This is an interesting case because, if this opinion holds up, it exposes (no pun intended) a bit of a loophole in legislation that could permit sexual predators to text or otherwise send photographs of their own genitalia to children without the threat of felony prosecution. While other statutes could possibly extend to prohibit such conduct (e.g., Penal Code §43.24 (Sale, Distribution, or Display of Harmful Material to Minor) or §42.07 (Harassment)), those offenses are not squarely on point and are often punishable as only misdemeanors. If the Court of Criminal Appeals declines to review this decision or declines to adopt a more expansive interpretation of “presence,” which would include an online or digital presence that encompasses text messaging and other forms of electronic interaction or communication, you should anticipate some legislative amendments to §21.11 or the enactment of another statute that more clearly governs these circumstances.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to Joe Hooker.