COVER STORY: Falling into a trap

Man arrested in park wants to warn others to avoid the situation that he says has ruined his life

DAVID TAFFET | Staff Writer
taffet@dallasvoice.com

Bill was arrested in the park outside the Dallas Theater Center for indecent exposure on Nov. 6, 2009. He believes the incident was entrapment and wants to warn others to avoid getting into a similar situation.

Attorney John Loza, who has handled a number of similar cases, explained that while this story sounds like entrapment, from a legal standpoint, the police did nothing wrong.

“Texas courts have a tradition of being very lenient about what an officer can do,” Loza said.

Bill asked that his real identity not be revealed for this story. He has children and has been unable to find a job since his arrest. The incident, he said, left him depressed and suicidal.

“I wasn’t aware they could do what they did,” Bill said.

What a police officer did, Bill said, was approach his car and then spend 45 minutes trying to entice Bill into making a sexual advance before arresting him. Bill said he never left his car.

SCENE OF THE CRIME | Bill points out where he was parked near Dallas Theater Center when he was approached by a man who turned out to be an undercover police officer who arrested him for exposing himself in public. (David Taffet/Dallas Voice)

Bill was living in Oklahoma at the time, and had come to Dallas for a doctor’s appointment after an accident the previous week. His car had been totaled in the accident, and that morning, he picked up a new one from a Toyota dealership in Lewisville.

Then Bill drove down to Oak Lawn where he was staying with a friend.

On the way, Bill stopped at a fast-food restaurant on Lemmon Avenue and picked up lunch. Then he drove to the park at the Dallas Theater Center to eat.

It was then, he said, that a hunky man in a Suburban approached him.

“This Hispanic guy pulled up next to me and he was smiling at me,” Bill said. “Then he asked me, ‘Would you like some company?’”

He asked Bill if he was alone. Bill said he was just having lunch.

He asked what Bill liked to do.

“Well what do you mean?” he said he asked the man.

Bill said the man said he liked to give blowjobs and he asked if Bill had “a big dick.”

Bill said his answers were short and standoffish, but the man persisted.

At one point, Bill said, he even told the man, “If you want that, I’m not the person.”

When another car pulled up near him, the man in the Suburban asked if he knew who that was. Bill said he didn’t.

The man suggested they go somewhere else more private, so they drove to the other side of the park.

Bill said, “We were 45 minutes into this and he just kept egging me on.”

Throughout the flirtation, Bill noticed the man in his car doing something in his lap. But since Bill was in a smaller car, he couldn’t see into the Suburban. He said it looked like the man was playing with himself.

Instead, Bill found out later, the man was a police officer and was texting his partner, who was hidden nearby.

At the man’s urging, Bill said he finally exposed himself. He said he didn’t realize what was happening at first when another man appeared from nowhere and placed him under arrest.

Bill said that the officer who had been coming on to him for almost an hour just hung his head.

Bill was charged with a Class B misdemeanor and pleaded no contest. There was no trial because that would have cost money that Bill said he didn’t have. The officer did not show up in court and Bill was given little opportunity to defend himself.

He said the police report had a number of facts wrong.

The police report said Bill motioned for the other man to come over. But Bill said that was false, adding that he was eating lunch when the officer approached him.

The report said Bill was masturbating and three cars passed by. But, Bill said, “There were no other cars there,” Bill said.

And, Bill said, he wasn’t masturbating and he only exposed himself, after 45 minutes of talking, when the other man — the police officer — told him to.
Bill isn’t speaking out now in hopes of avoiding charges or punishment. He has already been convicted and sentenced, and he has completed his sentence.

Instead, he said, he is speaking out now because “I just don’t want this to happen to anyone else. I wasn’t aware they could do anything like this, to entrap me.”

Adam Seidel, the criminal lawyer who represented Chad Gibson in the Rainbow Lounge raid, said that under Texas law, this probably wasn’t considered entrapment.

Although he didn’t have all the facts in the case or see the police report, Seidel said that normally, the officer would have had to lure Bill to another location under false pretenses before the case would be considered entrapment.

Across the park to a more secluded spot wouldn’t meet that standard.

In court, Bill said the judge asked him one question that he wasn’t prepared to answer: “What are you going to do to stop this.”

Bill said he answered, “I’ll stay out of the parks.” But that, apparently, was not the answer the judge was looking for.

Bill said what he was trying to convey was that he would avoid the situation in the future. What he was told the judge wanted to hear was that he was already getting counseling to correct his perceived “problem.”

But Bill said it never occurred to him that he had a “problem.”

Loza said he advises his clients to begin counseling before going to court. He said there are several advantages to that.

The judge will probably require some form of therapy anyway. But if it is court ordered, the assigned counselor may not be gay friendly.

By beginning counseling before going to court, the person can choose to see someone in the LGBT community. A judge will rarely require the person switch to a different counselor, Loza said.

Also, when a judge asks that question Bill was unprepared to answer, the defendant can say, “I have already begun counseling.”

Bill said his attorney didn’t advise him to seek counseling and didn’t prepare him with an answer to that judge’s question.

Loza said that of all of the similar cases he’s defended, only two have gone to trial. One was heard in front of just a judge and the defendant lost.

A jury heard the other, and the defendant won.

The client in the jury trial testified that he was at the park hiking, something he did often. He thought the first officer was coming on to him and was repulsed by it.

But these officers were determined to arrest his client, Loza said.

The second officer spoke Spanish. His client thought the man was homeless. He felt sorry for him and was trying to help. He claimed he never made any sexual advance or groped either one.

In that case, only one of the two officers involved was called to testify. In speaking to the jury after winning his case, Loza said they were bothered by not having heard from the second officer; perceived entrapment, he said, was not the issue that exonerated his client.

Loza said that exposure is a Class B misdemeanor. Public lewdness that includes groping is a Class A misdemeanor. Even if a person received deferred adjudication, with two or more indecent exposure arrests that person could be compelled to register as a sex offender in Texas.

Other states are even stricter.

After his arrest, Bill returned home to Oklahoma. He said that he was told that he had five days to register as a sex offender even before his Texas case was heard.

He did not register and instead moved to Dallas.

Loza warned that this type of arrest is expensive.

“You will need a lawyer,” he said. “And it’s rare that you’re going to be eligible for a court-appointed attorney.”

Most people plead no contest and are given deferred adjudication but there are heavy costs along with that. Probation carries a fine, court costs, a probation fee and fees for therapy.

Bill was given a year’s probation and 24 hours of community service and was also required to attend group counseling for sex offenders. He could have been fined $2,000 and put in jail for 180 days.

He does not have to register as a sex offender. Two years after probation, he can petition the court to seal the record.

Bill has had a hard time finding a job in Dallas and Loza said that’s common after an arrest like this.

Two years after probation, Bill can petition the court to seal the record.

“But even if the record is sealed,” Loza said, “There are so many places where records go. It’s floating out there.”

Loza had advice for anyone in a park in Dallas:

“If someone starts rubbing himself or making sexual remarks — leave,” he said.

He said that the undercover cop is going to be persistent. That’s how the vice squad works.

“Don’t let it develop until something happens,” he said. “These vice squad officers go out of their way to be undetectable.”

Bill said that the police report contained false statements. Loza said that it’s up to the individual officer’s integrity how truthful to be on the report.

And when a park arrest case for indecent exposure or public lewdness comes to court, the judge and jury tend to listen to the police, whether they’ve been truthful or not, and whether they’ve explained the extent to which they’re responsible for the incident or not.

“I don’t think it’s their job to go to the park to drum up business,” Bill said. “I was vulnerable that day and they took advantage of me.”

—  John Wright

Learning lessons from a tragedy

As a family mourns the loss of a daughter distraught over the outcome of a custody battle, one attorney explains the legal questions over who is — or isn’t — a parent

Michelle May O’Neil
Special Contributor

ParentThe death of Debie Hackett was a tragically shocking end to a family drama that has, to some extent, played out in the local Dallas media. Through her experience and even through her tragic death, Ms. Hackett has provided an opportunity to educate many who are in similar situations.

There seems to be quite a bit of misinformation about her family law case and the litigation that recently ended.

Many people live in families with children that they emotionally consider as “their children.” Knowledge of how the law applies to their relationship with the children in their lives gives power, so even in the midst of this tragedy there is something to be learned.

Texas law has a very specific definition of a “parent.” Texas Family Code defines a parent as:
• the mother (biological);
• a man presumed to be the father (because he was married to the mother when the child was born or at the time of conception);
• a man legally determined to be the father;
• a man who has been adjudicated to be the father by a court of competent jurisdiction;
• a man who has acknowledged his paternity under applicable law; or,
• an adoptive mother or father.

No matter how much love, caring or emotional bonding exists, if someone does not fall into one of these categories, then they are not a “parent” in the eyes of the Texas courts or Legislature.

While a person may feel emotionally connected to a child, the law provides no status for a person who “feels like a parent.” Even if a person is treated like a parent, or even considered a parent by the child, that person cannot be elevated to the legal status of a parent if she does not meet one of the statutory definitions.

So, you either are a “parent” under the law, entitled to the legal privileges and obligations of a parent, or you are not.

Parents have certain rights that are guaranteed under the U. S. Constitution as well as the laws of each state. The most fundamental of these rights is the right to make parenting decisions without questioning or interference from those outside the parenting relationship.

In other words, as long as the parent makes decisions that are not harmful to the child, the parent has the sanctity to make decisions for the child. Only when a decision can bring harm to a child does the law provide a method of reviewing parental decision-making.

The right to make parenting decisions includes the right to decide who the child can be around, spend the night with and visit.

This right is fundamental, like the freedom of speech or freedom of religion, and as a result is heavily protected by federal as well as state law, and highly regarded by most of our courts.

So, in Ms. Hackett’s situation, her former partner was the legal parent of the child and had the right to decide whether the child would associate with Ms. Hackett after their break-up. Only by proving that the former partner’s parenting decisions are harmful to the child in a court-at-law would Ms. Hackett have been able to have a court overrule the parent’s decision to exclude Ms. Hackett from the child’s life.

The jury trial that Ms. Hackett and her former partner went through in December involved the question of the parent’s fitness in her decision-making. The trial was not about whether the parent versus Ms. Hackett should have custody, what time the child should spend with either of them, who should decide what school the child attends, or even an allocation of child support.

The jury decided that the parent was a fit parent. That decision precluded Ms. Hackett from seeking any other orders regarding the child, such as the right to visitation over the parent’s objection.

Some believe that the law discriminated against Ms. Hackett because of the nature of their same-sex relationship. However, Ms. Hackett stood in the same position as a heterosexual person that does not meet the legal definition of a parent.

The law applies equally to any person that is not a parent seeking to intervene in the parenting relationship.

For example, consider a heterosexual married couple where one member of the couple has a child from a prior relationship. When that couple breaks up, the partner who is not a parent would be in the same situation as Ms. Hackett, left to the parental decision-making of the parent to continue the relationship with the child.

Barring proof that the parent is unfit — that her decisions as a parent are harmful to the child — the non-parent would have no right to interfere.

Grandparents often face this problem as well. Many grandparents assist in parenting their grandchildren yet cannot seek court ordered access to the grandchild absent proof of parental unfitness.

As a Dallas custody lawyer, I counsel many non-parents in situations like Ms. Hackett’s. The most important piece of advice I give them is to adopt their partner’s child while the relationship is good and everyone is on the same page.

Adoption grants them legal status as a parent and gives them the legal rights and constitutional protections that come with it.

This then allows — mandates — a relationship between the adoptive parent and the child after the romantic relationship with the other parent ends. Without adoption, the law provides no relief from the high hurdle of the parental presumption over which a nonparent must cross to even have the chance of gaining court-ordered conservatorship, possession with and/or access to the child over the legal parent’s objection.

The current state of Texas law draws no line regarding the gender of the parent or parents a child has. So a child, by adoption, can have two moms or two dads, provided a judge finds such adoption to be in the child’s best interest.

Michelle May O’Neil specializes in Texas family law cases and works specifically with gay parents regarding relationship and custody issues. She is the author of two books, All About Texas Law and Kids, published in 2010, and The Basics of Texas Divorce Law, published in 2011. Ms. O’Neil practices law with her firm O’Neil Attorneys in Dallas.

This article appeared in the Dallas Voice print edition January 7, 2011.

—  Kevin Thomas

Is Greg Abbott going to sit idly by while a federal court throws out Texas’ gay marriage ban?

Greg Abbott

Ten states have submitted a brief opposing same-sex marriage to the federal appeals court that will decide whether California’s Proposition 8 violates the U.S. Constitution, The Associated Press reports. But guess what? Texas isn’t one of them.

Anti-gay Texas Attorney General Greg Abbott, who’s fought to prevent Texas courts from recognizing same-sex marriage even for the limited purpose of divorce, has failed to get involved in a case that could ultimately result in the state’s marriage ban being thrown out:

Former Utah Sen. Scott McCoy, the first openly gay state senator, said Saturday he is not surprised Utah signed on to the opposition brief. If the California ruling against Proposition 8 is upheld, it would follow that Utah’s Amendment 3, which defines marriage as a union exclusively between a man and a woman, is unconstitutional, he said.

Abbott’s failure to get involved is even more surprising given that the brief filed Friday specifically argues that states, and not federal courts, should determine whether to allow same-sex marriage. As you may know, Abbott is all about states’ rights and protecting us from Washington and the evil federal government. So what gives?

We’ve contacted spokesman Jerry Strickland to find out why the Texas AG’s office has chosen to sit this one out, but thus far no response. Stay tuned.

—  John Wright