HOUSTON (CN) — A 51-year-old math tutor's sexual relationship with a 17-year-old student is legal in Texas, but topless photos she sent him were not, according to prosecutors who charged him with felony possession of child pornography.
Harris County prosecutors also charged Aldo Leiva with sexual performance by child, for asking her to send him pictures of herself taking a bath, according to a charging document.
If convicted, Leiva faces up to 20 years in prison.
Leiva met the teen while working as a math tutor at Sharpstown High School, Houston Independent School District police officer S. Quintanilla wrote in an affidavit.
The girl's mother found pictures of her kissing an older man on her cellphone and called a truancy officer at the school, and the girl told investigators that she and Leiva were dating.
"She stated that they would kiss and hold hands and that the relationship started in the summer of 2015," Quintanilla wrote in the charging document that refers to the teen as the "complainant."
"She stated that she knew him because he was her math tutor. She stated that they had gone out on dates and during the dates he had left hickeys on her breast and she had touched his penis. ... The complainant seemed protective of the defendant and attempted to minimize their relationship, however she did admit to receiving and sending nude photos through an app on their phones."
Leiva gave police his cellphone and the password to unlock it and said in a written statement that he was only a "mentor/teacher/friend/listener" to the teen, which was contradicted by photos of his penis that investigators found on her phone, according to the arrest report.
Three other photos police found on Leiva's phone led prosecutors to bring a case against him.
"On his phone, I found a conversation where the complainant says she's taking a bath," Officer Quintanilla wrote in the arrest report.
"The defendant writes to her and requests her to show him, thus inducing her to send the digital images. After his request, the complainant sends him 6 photos of her naked and wearing a towel in a bathroom. At least 3 of these pictures show the complainant in an act of sexual conduct depicting a lewd exhibition of the complainant's female breast below the top of the areola."
Leiva was arraigned on May 25 and posted $20,000 bond.
A Harris County judge signed a no-consent order, barring Leiva from contacting the girl, whose attorney told the Houston Chronicle he would fight the order because the couple want to keep seeing each other.
The age of consent in Texas is 17, but it's considered possession of child pornography for an adult to have explicit photos of anyone under 18.
Prosecutors say Leiva took advantage of his role as the girl's tutor.
"We entrust our educators with the care of all children, and that includes 17-year-olds," Harris County Assistant District Attorney Patrick Stayton told the Houston Chronicle.
"It's someone who was placed in a position to do a job, and that job did not include developing inappropriate relationships with students that were in his care."
Leiva's next court date is July 1.
Mary Leary is a law professor at The Catholic University of America in Washington, D.C., and a former state and federal prosecutor. She said in an interview she's not sure if she would have prosecuted this case and the prosecutors who brought charges against Leiva may be sitting on other incriminating evidence they didn't mention at the arraignment that will come out if the case goes to trial.
She said a number of factors weigh in favor of prosecution: The age difference between Leiva and his girlfriend, the fact that Leiva lied to police about their relationship and that he held a position of authority over her.
Even among fully consenting adults there are situations where such an imbalance of power in prisons, schools or the military, for example, make sexual relations inappropriate, against the institution's rules or illegal, Leary said.
She said it's important to note that even if a teen is legally of age, they may not be cognitively developed enough to realize the ramifications of their actions.
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