No. 05-09-01370-CR
Opinion issued July 20, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-80623-09.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
Opinion By Justice FITZGERALD.
Appellant Fermin Lopez Gonzalez was convicted of two counts of online solicitation of a minor. He raises three points of error on appeal: whether the trial court erred by denying his pretrial motion for acquittal based on the defense of entrapment, whether the evidence was sufficient to support his convictions, and whether the indictment was defective. We overrule his points of error and affirm.
I. Background
The conduct in question occurred in January 2009. The complainant, a female child, was twelve years old at the time. The complainant's mother, V.C., discovered that her daughter was receiving numerous text messages on her cell phone from a person V.C. did not know. She thought the messages were suspicious, and she talked to her daughter about them. She found out that the text messages started after the stranger had dialed a wrong number and reached her daughter's cell phone. V.C. also learned that her daughter had told the stranger that she was twelve years old. The stranger continued to send text messages to the complainant after learning that she was twelve. V.C. contacted the authorities about the messages and met with officer Chris Meehan of the Collin County Sheriff's Office. It was agreed that Meehan would assume the complainant's identity for purposes of investigating the case. He took possession of the complainant's cell phone. Meehan testified that when he first started working on the case and reviewed the text messages, he concluded that the text messages were strange but not illegal. He assumed the complainant's identity for purposes of responding to the stranger's text messages. Meanwhile, investigation revealed that appellant owned the telephone that was being used to send text messages to the complainant. At first, according to Meehan, the messages sent to the complainant's cell phone continued to be strange and perhaps inappropriate but not illegal. But on January 22, 2009, the stranger began asking "sexually related questions." He asked if the complainant would accept a kiss on the mouth, whether she had breasts yet, and whether she had hair on her vagina. He asked if he could touch the complainant's breasts and said that he wanted to touch her vagina. He also asked for the complainant's address and for information about the complainant's parents, such as what kind of work they did. Meehan, posing as the complainant, responded to the text messages. On the afternoon of January 23, 2009, the stranger sent a text message to the complainant's cell phone saying that he was at a particular park and asking if she wanted to see him. Meehan, still posing as the complainant, agreed to meet him there. Meehan got some other officers to go to the park with him, and he had a license plate and vehicle description for appellant based on the prior investigation of his cell phone number. He had also seen a photograph of appellant that he had previously downloaded. They found appellant at the park standing by his car. Meehan conversed with appellant and recorded their conversation. He then arrested appellant. Appellant's cell phone was taken as evidence, and it contained some of the text messages. Appellant was indicted on two counts of online solicitation of a minor. He pleaded not guilty, and the case was tried to a jury. Officer Meehan and the complainant's mother testified for the State. Appellant testified in his own defense. He denied that he had initiated any text-message conversations about sex. He also testified that the State had not produced all of the text messages that there were, and he testified several times that he did not know whom he was communicating with. But appellant admitted during cross-examination that he sent text messages to the complainant's phone number about touching her breasts and her vagina. The jury convicted appellant on both counts. The jury sentenced appellant to ten years' imprisonment, probated for ten years, as to count one, and to twelve years' imprisonment as to count two. The trial judge signed two judgments of conviction, one for each count. Appellant filed a motion for new trial, which the trial judge denied. This appeal followed. II. Analysis
A. Entrapment
Appellant requested and was afforded a pretrial hearing on the issue of entrapment. Officer Meehan was the only witness at the hearing. At the conclusion of the hearing, appellant asked the trial judge to find that he had been entrapped. The trial judge denied the motion. In his first point of error, appellant contends that the trial judge erred by denying his motion. Although appellant's brief is not entirely clear, we construe his argument to be that he successfully established his entrapment defense at the pretrial hearing. Entrapment is a defense to prosecution. Tex. Penal Code Ann. § 8.06(a) (West 2011). The entrapment defense is unusual in that it may be tested and determined in a pretrial hearing. See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(9) (West 2006). This procedure is disfavored because it results in a piecemeal trial. Hernandez v. State, 161 S.W.3d 491, 498 (Tex. Crim. App. 2005). But when the procedure is used, the defendant bears the burden of "establish[ing] entrapment as a matter of law with conflict-free, uncontradicted, uncontested or undisputed evidence." Id. at 499 (emphasis and footnote omitted). If the trial judge denies the motion, our standard of review on appeal is de novo. Id. at 500. We affirm if any rational trier of fact could have concluded that the undisputed facts failed to establish all of the elements of entrapment. Id. The elements of entrapment are: (1) the defendant engaged in the conduct charged (2) because he was induced to do so by a law-enforcement agent (3) who used persuasion or other means, and (4) those means were likely to cause persons to commit the offense. Id. at 497 (citing Tex. Penal Code Ann. § 8.06(a)). Entrapment includes both a subjective and an objective component: the defendant must show both that he was actually induced to commit the charged offense and that the persuasion was such as to cause an ordinarily law-abiding person of average resistance to commit the crime. England v. State, 887 S.W.2d 902, 913-14 (Tex. Crim. App. 1994). "Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Tex. Penal Code Ann. § 8.06(a). We conclude that appellant failed to establish entrapment as a matter of law at the pretrial hearing. The only evidence adduced at the hearing was Meehan's testimony. Meehan testified that appellant initiated the illegal communications with sexual content and that he did not induce appellant to introduce sexual content into the text-message conversations. Meehan also testified that no one induced appellant to engage in text-message conversations with the complainant and that no one entrapped appellant with respect to sending the text messages and meeting with the complainant. The evidence did not establish entrapment as a matter of law. The trial judge did not err by denying appellant's entrapment motion. We overrule appellant's first point of error. B. Sufficiency of the evidence
In his second point of error, appellant challenges the factual sufficiency of the evidence supporting his convictions. After Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the only standard we use in reviewing the sufficiency of the evidence is the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). We examine the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 895. With respect to the defense of entrapment, we determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and could have found against the defendant on the issue of entrapment beyond a reasonable doubt. Hernandez, 161 S.W.3d at 500. We measure the sufficiency of the evidence with reference to a hypothetically correct jury charge for the case-that is, a charge that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (footnote omitted). "We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters." Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd, untimely filed). Under count one, the elements of the offense were that appellant was at least 17 years of age and that he intentionally communicated in a sexually explicit manner with a minor by text message with the intent to arouse or gratify the sexual desire of any person. See Tex. Penal Code Ann. § 33.021(b)(1) (West 2011). In this section, "sexually explicit" includes a communication or language that relates to or describes "sexual conduct" as defined by § 43.25 of the penal code. Id. § 33.021(a)(3). One definition of "sexual conduct" in § 43.25 is "sexual contact," which in turn is defined to include "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Id. § 43.01(3); see also id. §§ 43.25(a)(2), 43.25(a)(7). Under § 33.021, "minor" means a person who represents himself or herself to be younger than 17 or a person whom the defendant believes to be younger than 17. Id. § 33.021(a)(1). There was sufficient evidence of every element of count one. Appellant's testimony established that he was over 17 at the time of the conduct in question. There was evidence that he sent sexually explicit text messages to Meehan after Meehan had represented himself to be the complainant, a twelve-year-old girl, such as messages about touching her breasts and vagina. From the content of those messages, the jury could infer that appellant sent the messages with the intent of arousing or gratifying his own sexual desire. Under count two, the elements of the offense were that appellant, by text message, knowingly solicited a minor to meet appellant, with the intent that the minor will engage in sexual contact with appellant. See id. § 33.021(c). Again, in this provision "minor" means a person who represents himself or herself to be younger than 17 or a person whom the defendant believes to be younger than 17. Id. § 33.021(a)(1). There was sufficient evidence of every element of this count. On January 22, 2009, appellant sent text messages to the complainant's cell phone number asking about the size of her breasts, whether she had pubic hair, whether she would let him touch her breasts, and whether she would let him touch her vagina. He also sent a text message that said, "I good to make sex." Then on January 23, appellant sent text messages to the complainant's cell phone number saying that he was at a particular park on the street where he thought she lived, that he wanted to see her, and that she should bring him a picture. He also gave directions to the parking lot where he was. Meehan testified that appellant solicited him, believing that he was a twelve-year-old girl, to meet for the purpose of sexual contact. As for the defense of entrapment, we conclude that the jury could have found against appellant beyond a reasonable doubt. Appellant argues that Officer Meehan introduced the sexual content into the text-message conversations, but Meehan testified that appellant introduced the sexual content into those conversations. A transcript of the text messages from January 21 through January 23 supports Meehan's testimony. During cross-examination, Meehan denied that he was trying to get appellant to do something wrong by sending him the text messages. A rational jury could have concluded beyond a reasonable doubt that Meehan's conduct did not actually induce appellant to break the law, that Meehan's conduct would not have induced an ordinarily law-abiding person of average resistance to break the law, or both. The evidence was sufficient to support appellant's convictions, so we overrule his second point of error. C. Defective indictment
In his third point of error, appellant argues that the indictment was defective because the counts were stated in the disjunctive and not in the conjunctive. He acknowledges that he made no objection to the indictment. Defects of form or substance in an indictment are waived if they are not objected to "before the date on which the trial on the merits commences." Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005); see also Swain v. State, 181 S.W.3d 359, 363 (Tex. Crim. App. 2005). If an issue has not been preserved for appeal, we should not address it. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Accordingly, we overrule appellant's third point of error. III. Conclusion
Having overruled all of appellant's points of error, we affirm the judgments of the trial court.