Opinion
No. 05-05-00206-CR
Opinion Filed April 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-25143-U. Affirm.
Before Justices MORRIS, MOSELEY, and RICHTER.
OPINION
Terence Yu-Fan Chen appeals his jury conviction for criminal solicitation of a minor. See Tex. Pen. Code Ann. §§ 15.031, 22.011(a)(2) (Vernon 2003 and Supp. 2005). In ten issues, Chen challenges the legal and factual sufficiency of the evidence to support the conviction, the exclusion of certain testimony, and the denial of his motion for mistrial. We affirm.
Background
Chen was arrested at a Garland apartment complex where he had planned to "hook-up" and "go all the way" with fifteen year old "Molly Shaw," whom he had met on the internet. "Molly" was a fictitious teenager created by Bruce Marshall, a Garland detective assigned to the "Internet Crimes Against Children" Task Force. At trial, Marshall explained that as part of his duties on the task force, he assumed the role of a child on the internet, selecting a name and setting up a profile of fictitious personal information. On February 21, 2002, at around 12:30 p.m., he was "chatting" online using the screen name "SweetMollyGirl" and posing as "Molly," when he received an "instant" message from thirty-two year old Chen. In the hour-long exchange that followed, Chen asked "Molly" her age, where she lived, why she was not in school that day, what she looked like, her height and weight, whether she was at home alone, and whether she could send him a picture. "Molly" replied to the questions and sent him a picture of a female Garland police officer when she was fifteen years old. Impressed with the picture, which was admitted into evidence, Chen asked for another picture. When "Molly" replied that her mother did not allow her to keep more than one picture, Chen then suggested "dropping by." When "Molly" asked for details of what he would do if he came over, Chen replied that he could not tell her "too much" because she was young and it "probably wasn't legal to use the `s' word," but that she "should expect to go all the way." Concerned that her mother might find out and nervous because "she had never done it before" and was only fifteen, "Molly" declined the invitation. Chen agreed it "probably wasn't legal" for them to meet and they "would have to be careful," but assured "Molly" that her mother would not find out. Chen also told "Molly" that it was "fine with [him]" that she was young and "inexperienced." "Molly" again declined. Over the next several minutes, Chen continued to try to persuade her to let him come over, but she declined and the exchange ended at about 1:40 p.m. About twenty minutes later, Chen contacted "Molly" again to "give her one last chance." "Molly" responded that he could come over "as long as he was patient" and "brought protection." She then gave him directions. The two agreed that he would stand by certain mailboxes in the complex and she would come out to greet him once she saw him. Chen then gave "Molly" a description of himself and the car he would be driving, and left to meet her. Marshall testified that at that point he sent a team of uniformed officers to the apartment complex to arrest Chen when he arrived. Chen's car was searched after the arrest and an unopened box of condoms was found. Marshall testified that "Molly's" age was referenced fifteen times and she was "solicited" five times throughout the hour-and-a-half-long online exchange. In Marshall's opinion, much of Chen's time during the exchange was spent on "grooming"-persuading "Molly" to meet with him. Marshall further testified that he met with Chen after the arrest and during the taped interview, Chen admitted Molly had told him she was fifteen years old and that he showed up at the apartment complex because he "wanted to have sex with Molly." Chen also stated that he bought the condoms "on the way to Molly's." Chen admitted he "made a mistake" and "was stupid." Chen apologized and stated he would "never do it again." The tape of the interview was played for the jury and a copy of the online exchange between Chen and "Molly" was admitted into evidence. On cross-examination, Marshall stated that he did not inform Chen during the interview that "Molly" was fictitious because he did not feel Chen would trust him if he did. Marshall testified that Chen told him he had used his personal laptop at work to communicate with Molly and after obtaining a warrant, Marshall seized the laptop and had it examined. Although common for child predators to have child pornography on their computers, Chen's laptop "came back clean." Marshall also testified that Chen had not been the subject of any prior investigations. When questioned about "Molly's" picture, Marshall testified that the picture was of an officer who at the time of trial was about twenty-eight years old. Marshall admitted that the picture looked about fifteen years old, and that someone looking at the picture might think "Molly" was older than fifteen because the picture was dated. Marshall also admitted that he had been told by "others" that "Molly" looked older than fifteen in the picture. Chen did not testify and unsuccessfully attempted to call only two witnesses: (a) Stephanie Funk, a former Garland police officer whose pictures when she was ten and twelve years old were rejected by Marshall for use on the internet because she appeared "too young," and (b) Franklin Lewis, a clinical psychologist and registered sex offender therapist who evaluated Chen and concluded that Chen did not fit the profile of a sex offender. The trial judge excluded Funk's testimony on the basis of relevance and Lewis's testimony on the basis it "invaded the jury's province" because it went to the ultimate issue of guilt. Although Chen was unable to call his witnesses, he presented a defense through his cross-examination of Marshall that he did not believe "Molly" was a minor. After finding Chen guilty, the jury assessed punishment at two years' confinement — the lower end of the sentencing range — and a $10,000 fine. See Tex. Pen. Code Ann. §§ 12.34, 15.031(e), 22.011(f) (Vernon 2003).Sufficiency of the Evidence
In his first four points of error, Chen challenges the legal and factual sufficiency of the evidence to support the convictions. We review challenges to the legal and factual sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Based on the indictment in this case, to obtain a conviction, the State had to prove Chen attempted to induce "Molly," whom Chen believed to be a minor, to engage in sexual intercourse with him. See Pen. Code Ann. §§ 15.031, 22.011(a)(2). The State also had to prove Chen acted with the intent that the offense of sexual assault of a child be committed and that under the circumstances as Chen believed them to be, Molly's engaging in sexual intercourse with him would constitute sexual assault of a child. Id. § 15.031; Henson v. State, 173 S.W.3d 92, 103 (Tex.App.-Tyler 2005, pet. ref'd). The State could prove Chen's intent through his words, acts, or conduct. See Hall v. State, 124 S.W.3d 246, 252 (Tex.App.-San Antonio 2003, pet. ref'd). In arguing the evidence is legally and factually insufficient to support the conviction, Chen does not dispute he communicated with Molly intending to engage in sexual intercourse with her and in fact went to the apartment complex "to have sex with her." Rather, his challenge to the sufficiency of the evidence stems from Marshall's testimony that his only contact with Chen occurred the day of Chen's arrest, Chen was not under investigation at the time, no pornography was found on Chen's computer, the solicitations occurred only after Chen received "Molly's" picture, the picture was noticeably dated, and the picture appeared to be of someone older than fifteen. Chen maintains this evidence precludes a finding that he "attempted to induce an individual he believed to be a minor" and that he "acted with intent that the offense of sexual assault of a child be committed." We disagree. The record reflects that Chen initiated the hour-and-a-half-long exchange, asked "Molly" for her personal information including age, height, and weight, learned she was fifteen, referenced and acknowledged her youth several times, requested her picture, repeatedly suggested "dropping by," told "Molly" she could "expect to go all the way," told Molly it was alright that she was "young" and "inexperienced," told "Molly" he would bring "protection" and was caught with a box of condoms, recognized he would need "to be careful" and "it probably wasn't legal [for them] to meet," and admitted to Marshall he was "stupid" and had "made a mistake." From this evidence, we conclude the jury could have found beyond a reasonable doubt he "attempted to induce an individual he believed to be a minor" and acted with the intent of sexually assaulting a child. See Stogiera v. State, No. 04-04-00675-CR, slip op. at 2-5, 2005 WL 3115551, at *1-3 (Tex.App.-San Antonio Nov. 23, 2005, no pet. h.) (concluding evidence that appellant intended to meet with a child to engage in sexual activity, acted on plan, was aware of possible criminal sanctions for actions, and expressed desire to pat-down undercover officer to ensure she was not cop sufficient to show requisite intent); Hall, 124 S.W.3d at 252 (concluding evidence that appellant initiated online chat with female who stated she was fourteen, initiated idea of their meeting to have "some fun," asked for her picture, inquired about her sexual experience and whether she wanted to learn from older man, recognized that it would be "risky" and illegal for them to meet, and then traveled to meeting location sufficient to show requisite intent). Although Chen maintains he did not know "Molly" was fifteen because the picture he received was dated and was of an individual who appeared older than fifteen, the jury as fact finder was free to examine the picture and determine what weight to give this evidence. The jury was also free to determine what weight to give the testimony showing Chen was not under investigation at the time of his arrest and had no pornography on his laptop. By returning a verdict of guilty, the jury necessarily determined the weight of evidence supported a finding of guilt and we will not disturb that finding. Harvey, 135 S.W.2d at 717. Viewing the evidence under the appropriate standards, we conclude the evidence was both legally and factually sufficient to support the conviction. We overrule Chen's first four points of error.Exclusion of Evidence
In his fifth and seventh through tenth points of error, Chen complains of the court's exclusion of his two witnesses-Funk and Lewis. Specifically, in his fifth point, Chen asserts the judge should have allowed Funk's testimony that Marshall rejected pictures of her when she was ten and twelve years old because her testimony would have made less probable the fact that Chen believed "Molly" was younger than seventeen years of age. In his seventh through tenth points, Chen asserts the judge should have allowed Lewis's testimony that Chen did not fit the profile of a sex offender because it was admissible expert opinion and because Marshall's testimony that Chen was "grooming" "Molly" opened the door to the admission of this evidence. We review rulings on the admissibility of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). We will find a trial court's ruling on the admissibility of evidence to be reversible error when the court acts without reference to any guiding principles and appellant has been harmed. See Tex.R.App.P. 44.2; Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990). Because generally the erroneous exclusion of evidence does not rise to the level of constitutional error, we look only to see if an appellant's substantial rights have been affected in determining whether an appellant has been harmed by the court's ruling. See Tiede v. State, 76 S.W.3d 13, 14 (Tex.Crim.App. 2002); Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. ref'd). In making this determination, we consider the entire record, including the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). We also may consider the parties' trial theories, the court's instructions to the jury, and the parties' closing arguments. Id. We will find the error to be harmless when the record provides us a "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon, 49 S.W.3d at 365 (citation omitted). We need not determine whether either of the complained-of rulings in this case was error because we conclude that neither affected Chen's substantial rights. As summarized above, Marshall provided detailed testimony about the online exchange he had with Chen, and a copy of that written exchange was admitted into evidence. Additionally, the picture of "Molly" was admitted into evidence and the jury was able to hear Marshall's taped interview of Chen. Although Chen was unable to call Funk and Lewis to establish it was less probable that he believed "Molly" was a minor and that he was not the "stereotypical sexual offender," Chen was still able to present a defense. Through his cross-examination of Marshall, Chen established that "Molly's" picture was dated, that she looked older than fifteen, and that others had mentioned that "Molly" did not look like a fifteen year old in that picture. Given the record before us, we conclude any error in excluding the testimony of Funk and Lewis was harmless. We overrule Chen's fifth and seventh through tenth points of error.Denial of Motion for Mistrial
Chen's sixth point stems from the following exchange during defense counsel's cross-examination of Marshall:Q. Let's talk — let's talk about — you've had plenty of opportunity to do thorough other investigations, follow-up, serve subpoenas, request computer records, things of that nature in this case for three years, haven't you?A. Yes, sir. * * *
Q. Nothing has been found other than these less than an hour chat dialogue, right? Right? That's the only evidence?A. That's not true. Q. Other than the tape, the taped interview? A. That's not true, sir. Q. What other evidence do you have?
A. I have evidence from the hotmail search warrant that I sent with photographs and email in his hotmail account, the defendant's hotmail account that is also evidence.Because the State had not turned over such evidence "despite numerous motions concerning production of evidence" and had specifically informed Chen it had turned over "all" evidence, Chen moved for a mistrial. The trial judge denied the motion, but at Chen's request instructed the jurors "to disregard the last answer" and to not "consider it for any purpose whatsoever." Chen now complains the instruction was ineffective and the judge should have declared a mistrial. Chen maintains Marshall's answer that "other evidence" was found in Chen's e-mail account "invited jurors to speculate about . . . other incriminating evidence," was "highly prejudicial," and its effect could not be "removed" by the judge's instruction. We review a trial judge's denial of a motion for mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003), cert. denied, 542 U.S. 905 (2004). A mistrial is proper only in extreme cases, where "highly prejudicial and incurable errors" occur and where the "expenditure of further time and expense would be wasteful and futile." Id. Ordinarily, a prompt instruction to disregard will cure error associated with an improper answer and will mitigate the need for a mistrial. Id. In determining whether an instruction to disregard was effective, we may consider such factors as the nature of the improper comment, the flagrancy of the violation and persistence of the prosecutor, the particular instruction given, the weight of the incriminating evidence, and the harm to the accused as measured by the severity of the sentence. Adams v. State, 156 S.W.3d 152, 157 (Tex.App.-Beaumont 2005, no pet.); Fletcher v. State, 852 S.W.2d 271, 275 (Tex.App.-Dallas 1993, pet. ref'd) (citing Waldo v. State, 746 S.W.2d 750, 755-57 (Tex.Crim.App. 1988)). Here, although Chen argues the judge's instruction to disregard was insufficient, he presents nothing, and we find nothing in the record, in support of his assertion. Were the record to reflect the State capitalized on the complained-of answer by referencing it throughout the remaining portion of the trial or in closing argument, elicited or attempted to elicit similar answers multiple times, attempted to secure the conviction based on this answer alone or "weak" evidence, and obtained a sentence on the high-end of the range we might be inclined to conclude otherwise. See Waldo, 746 S.W.2d at 754. The record, however, reflects just the opposite. The complained-of answer was not referenced further in trial or in closing arguments, the State presented compelling evidence in support of the conviction, and Chen was assessed a two-year sentence, the lowest end of the punishment range. Given this record, we conclude the judge's instruction cured any error associated with Marshall's answer and the judge did not err in denying the motion for mistrial. We overrule Chen's sixth point of error. We affirm the trial court's judgment.