Texas Confidential. Michael Varhola
possesses with intent to wholesale promote any obscene material or obscene device,” Section 43.23 of the code stated. “A person who possesses six or more obscene devices … is presumed to possess them with intent to promote the same.” This section specified higher penalties for violators, forcing sellers of items covered under the act usually to market them as “educational items” or “novelties.”
A number of companies that dealt in sexual devices in Texas, operating under the names Dreamer’s, Le Rouge Boutique, and Adam & Eve Inc., responded to the state’s heavy-handed interest in the matter by claiming that the statute was unconstitutional and filing suit accordingly.
On February 12, 2008, a three-judge panel of the Fifth Circuit Court of Appeals, on appeal from the United States District Court for the Western District of Texas, agreed with the sex toy merchants and overturned the statute by a vote of 2–1. This panel maintained that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.”
“Because of Lawrence v. Texas … the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing,” the majority opinion stated (see the chapter “Now All Sex is Fine in Texas” for more on this case). “Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”
Texas had presented to the court that it had the right to regulate the morality of its citizens and to discourage “prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The court of appeals, however, was not having it.
On October 29, 2008, the Texas Attorney General’s Office notified the Fifth Circuit Court of Appeals that it would not file a writ of certiorari with the U.S. Supreme Court and was dropping the matter, making it legally safe for sex toy merchants to sell their wares in Texas.
13
Mark of Shame
ON FEBRUARY 7, 2011, A JURY IN NEW Braunfels, Texas, sentenced local attorney Mark A. Clark to seven years in prison for trying to induce a twelve-year-old girl to pose for him in sexy clothing at his office the previous summer.
Attorney Mark A. Clark was not thanking heaven for little girls when justice finally caught up with him and he was sentenced to seven years in prison for trying to take indecent liberties with a minor.
During the trial, the girl emotionally testified that in June 2010 Clark had offered to pay her $1,000 to model provocative clothes, including a see-through shirt, and that he had also made a number of highly suggestive remarks to her. She was the daughter of a former client Clark was representing in a child custody case, and the girl testified that he also offered to waive her mother’s legal fees.
The girl had gone to the office to help with paperwork and, in preparation for this, had French-braided her hair, put on what she described as her “Alice in Wonderland” dress, and made the lecherous lawyer a plate of chocolate chip cookies.
Clark had some treats for the girl, too, and started off by offering her some alcoholic “hard lemonade.” A subsequent police search of his office revealed a hidden stash of items that included more hard lemonade and some vodka, champagne glasses, a breast pump with hoses, condoms, cell phones, KY Jelly, a sex toy, a box of feminine douches, corsets, fishnet stockings, lacy underwear, and bikinis.
“His cat was sitting in his lap and he was petting it,” said the girl, who was thirteen at the time of the trial. “He said the cat would let him pet it and pet it, and he would just stop whenever it wants him to, and that’s how he wished I would be.”
Another witness testified that, four years earlier when she was seventeen and pregnant, she had come to Clark, her father’s attorney, to seek advice about getting child support from the father of her unborn child. She said that Clark had offered to pay her to secretly accompany him to a motel room and pose for pictures in lingerie, which she refused to do. When she reported the incident to New Braunfels police they opted not to look into her allegations.
“They said they couldn’t do anything because they had no proof,” she said.
According to statements made in court and to police eight years earlier by yet more witnesses, Clark had accosted a fourteen-year-old girl at a snow cone stand in 2002, slipping a note with his phone number and a $5 bill into her pocket. She told her mother, Diane Zavala, who, in the guise of her daughter, called the number.
“What are you doing?” Zavala testified Clark said. “You want to come over to my house?”
Not Just a Pervert…
PRIOR TO BEING CONVICTED AS A SEXUAL PREDATOR, Mark A. Clark was a pretty good defense attorney and defended convicted murderer Janice Vickers in 2009. See the chapter in the “Murder” section of this book titled “A Texas Murder Trial.”
After cursing out Clark over the phone, Zavala and her daughter reported the incident to the police and then met with a prosecutor from the county criminal district attorney’s office. A young Comal County assistant district attorney named Melissa Rowcliffe also got wind of the incident and pushed her bosses to pursue the case. Despite the efforts of both women to have Clark charged and prosecuted, however, then-Comal County District Attorney, Dib Waldrip—now a district judge—declined to do so.
The fact that Clark’s father, Fred Clark, had been the county judge twenty years earlier, gone on to serve two terms as a county court-at-law judge, and remained a prominent figure in the community was by no means irrelevant to the attorney’s predatory actions being swept under the carpet.
“It is an aberrant behavior you have found him guilty of … an irrational behavior, a bizarre behavior.”
The fifty-five-year-old defense attorney could have received a sentence of as much as twenty years for “attempted sexual performance” of a minor, the second-degree felony for which he had been convicted (he had also been charged with but not convicted of attempted aggravated sexual assault of a child). Such a sentence was actually fairly heavy for an offense of this sort and, furthermore, bucked what Comal County’s chief felony prosecutor called the county’s “good ol’ boy” system—a system that protected Clark in the past.
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