Opinion
NO. 01-16-00453-CR
12-12-2017
ROLANDO E. HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCR-069796
MEMORANDUM OPINION
A jury convicted Rolando E. Hernandez of the online solicitation of a minor and assessed a sentence of six years' confinement. On appeal, Hernandez contends that the statute under which he was convicted is facially unconstitutional. He further contends that the evidence is legally insufficient to prove that he knowingly solicited a federal agent for sex and to disprove that he was not more than three years older than the agent and was entrapped. We affirm.
BACKGROUND
Hernandez was ensnared in a sting operation run by a multi-agency law-enforcement taskforce in which Special Agent R. Guerra of the Federal Bureau of Investigation posed online as a 15-year-old girl seeking male company. Hernandez was arrested after he arrived at the girl's ostensible residence to have sex.
In his post-arrest interview, which was videotaped and played for the jury, Hernandez admitted that he intended to have sex with the girl despite her age. He acknowledged that he brought two condoms with him for this purpose, and they were admitted into evidence. However, he also claimed that Guerra's online advertisement represented it was placed by a 19-year-old woman and that he only learned that the girl was 15 once they began talking to one another via chat software called Kik. Hernandez said that he did not want to meet the girl but that she pressured him to do so.
Special Agent Guerra testified that he posed as the girl on Craigslist to assist local law enforcement authorities investigate the online solicitation of children. He posted a personal advertisement to Craigslist entitled "Young and Bored," stating "I am a young and single girl looking for some fun. Send me your Kik ID if you want to chat." Guerra said that the ad did not state the girl's age. Hernandez responded with his Kik ID, and Guerra then contacted him posing as "Katy Herman," the girl who ostensibly placed the ad in Craigslist's personals section.
The State introduced screenshots of the ensuing Kik conversation. "Katy" immediately asked Hernandez his age. On learning he was 24 she revealed that she was 15. After noting that "Katy" was "very young," Hernandez asked her about her intentions. When she deflected the question back to him, Hernandez stated that he was unsure because of her age. "Katy" responded that it was up to him but that she did not like games and admonished him to "be straight up or move on." Guerra testified that he uses this response to distinguish between those merely seeking to chat and those intending to set up a meeting.
At this point, Hernandez admitted that he was hoping to set up a meeting for sex. When "Katy" reminded Hernandez that she was underage, he expressed some indecisiveness. "Katy" again stated that she did not like games, and he rejoined "Send me a pic of you." They exchanged photos, with "Katy" using an age-regressed photo of an FBI employee in Dallas. After "Katy" told Hernandez he was "cute" he asked if she had "any pics with less clothes." She said she did not.
Hernandez asked "Katy" to take a picture with a spoon in front of her nose writing, "Look your 15 I'm trying to make sure your real. I want to have sex with you just don't want to get in trouble for it." "Katy" offered to call him to assuage his concerns and Hernandez gave her his number. The record, however, is unclear as to whether there was a phone call.
"Katy" asked Hernandez if he was "looking to come over tonight" and if he had condoms. He replied in the affirmative to both queries and asked several sexually explicit questions. "Katy" asked Hernandez repeatedly why he had not arrived yet and if he was standing her up. Agent Guerra testified that he sent these messages to coordinate Hernandez's arrival with the arresting officers as both he and other participants in the task force were sending others to the same location on the same day.
The jury found Hernandez guilty and assessed his punishment at 6 years' confinement. Hernandez appealed.
DISCUSSION
I. Constitutional Claims
Hernandez contends that the former version of Section 33.021(c)-(d) of the Penal Code under which he was convicted is facially unconstitutional because it is overbroad, vague, and violates a defendant's due process right to present a defense.
Hernandez did not make these constitutional arguments in the trial court. Ordinarily, the failure to do so waives a claim of facial unconstitutionality. Smith v. State, 463 S.W.3d 890, 895-97 (Tex. Crim. App. 2015). If, however, a statute already has been declared facially unconstitutional, its unconstitutionality may be asserted on appeal even if the issue was not raised in the trial court. Id.
Challenges to the constitutionality of Section 33.021(c)-(d) were pending in the Court of Criminal Appeals when Hernandez appealed. Hernandez asked this court to refrain from deciding his appeal until the Court of Criminal Appeals ruled, maintaining that he would be entitled to raise the statute's unconstitutionality on appeal if the Court of Criminal Appeals held that it was facially unconstitutional.
The Court of Criminal Appeals since has issued the relevant decisions. In Ex parte Ingram, 2017 WL 2799980 (Tex. Crim. App. June 28, 2017), the Court rejected the contention that the former version of the online solicitation statute was overbroad and additionally held that it did not violate the Dormant Commerce Clause. Id. at *4-12. The Court further held that the remainder of the defendant's constitutional claims were not cognizable on habeas review. Id. at *2-4. Subsequently, in Leax v. State, 2017 WL 4675411 (Tex. Crim. App. Oct. 18, 2017), the Court rejected the defendant's overbreadth claim based on Ingram and rejected the remainder of the defendant's constitutional issues because the record was insufficiently developed. Id. at *1-2; see also Ex parte McClellan, 2017 WL 5476335, at *1-2 (Tex. Crim. App. Nov. 15, 2017) (reaffirming Ingram).
The Court of Criminal Appeals rejected the contention that the online solicitation statute under which Hernandez was convicted is overbroad. Ingram, 2017 WL 2799980, at *4-9; accord Ex parte Wheeler, 478 S.W.3d 89, 94-96 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd); Ex parte Moy, 523 S.W.3d 830, 836-38 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). As Hernandez did not raise his vagueness and due process claims in the trial court and the statute has not been declared unconstitutional, they are not presented for our review. Smith, 463 S.W.3d at 895-97.
II. Specific Victim
Hernandez contends that legally insufficient evidence supports his conviction, because the indictment alleged that he solicited Agent Guerra while the evidence at trial showed that he solicited Guerra's online pseudonym "Katy."
In a review for legal sufficiency, we view all of the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S. 307 (1979)). We cannot reevaluate the weight or credibility of the evidence; instead, we defer to the jury's resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
Hernandez cites Franklin v. State, 659 S.W.2d 831 (Tex. Crim. App. 1983), in support of his argument that the State had to prove that he solicited Guerra rather than "Katy." In Franklin, the Court relied on Weaver v. State, 551 S.W.2d 419 (Tex. Crim. App. 1977), to hold that unnecessary additional allegations in the indictment that describe a legally essential element must be proved. See Franklin, 659 S.W.2d at 833-34 (State required to prove additional allegation that defendant who appropriated stolen property knew identity of original owner); Weaver, 551 S.W.2d at 421 (conviction reversed where State alleged defendant used Ruger in indictment but presented evidence of Luger at trial).
Though the Court of Criminal Appeals previously held that unnecessary allegations describing legally essential elements must be proved, it has reversed the Weaver line of cases and has implemented the fatal variance doctrine. See Gollihar v. State, 46 S.W.3d 243, 250, 257 (Tex. Crim. App. 2001). Under the fatal variance doctrine, a variance between the wording of an indictment and the evidence presented at trial should be disregarded in a legal sufficiency analysis unless the variance is material. Id. at 257. A variance is material if it prevents the defendant from preparing an adequate defense at trial or subjects the defendant to the risk of being prosecuted later for the same crime. Id. at 257-58.
The record indicates that Hernandez was aware that Agent Guerra used the pseudonym "Katy" and that he was not surprised by the additional allegation at trial. Thus, Hernandez was not prevented from preparing a defense. See Gollihar, 46 S.W.3d at 258 (defendant was not prevented from preparing an adequate defense where he was not misled by the allegation or surprised by the proof at trial). Nor is Hernandez at risk of being prosecuted again for solicitation of "Katy" because the entire record may be referred to in protecting against double jeopardy in the event of a subsequent prosecution. See id. Thus, the variance between Agent Guerra and his online pseudonym "Katy" is immaterial and we therefore disregard it under a legal sufficiency review. See id. at 257-58.
III. Age Defense
Hernandez contends that the State failed to adduce legally sufficient evidence that he was more than three years older than Agent Guerra. Hernandez posits that the State was required to prove this age difference because the online solicitation of a minor statute provides that it is a defense to prosecution that the defendant was not more than three years older than the minor and the minor consented to the charged conduct. See TEX. PENAL CODE § 33.021(e)(2).
To the contrary, the State did not have to prove that Hernandez was more than three years older that Guerra. The version of the statute then in effect defined a minor as a person who represented herself to be younger than 17 years of age or whom the defendant believed was younger than 17 years of age. Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007 and 2015) (current version codified at TEX. PENAL CODE § 33.021(a)(1)). When a defendant solicited an ostensible minor who was actually a law enforcement officer, the defendant may raise a defense based on subsection (e)(2) only if the defendant believed that he was not more than three years older than the victim portrayed by the officer. See Sanchez v. State, 400 S.W.3d 595, 599-600 (Tex. Crim. App. 2013) (noting in context of criminal solicitation case that similar age-difference defense in sexual assault statute applied if defendant believed that he was not more than three years older than fictitious minor portrayed by detective); see also Maloney v. State, 294 S.W.3d 613, 618-22 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (evidence in online solicitation prosecution sufficed to show that defendant believed that minor portrayed by detective was under 17 years of age).
The State presented uncontroverted evidence that Agent Guerra represented that "Katy" was 15 years old and that Hernandez believed the representations. Hernandez was 24 years old at the time of the offense, and thus was more than three years older than the ostensible minor from whom he solicited sex. We therefore overrule Hernandez's third point of error.
IV. Entrapment
Hernandez contends that the evidence is legally insufficient to prove that Agent Guerra did not entrap him. Hernandez argues that he replied to an adult advertisement on Craigslist, which forbids minors from posting, and balked when "Katy" told him she was 15. According to Hernandez, "Katy" repeatedly pressured and coaxed him to come over for sex. By inviting him over to her apartment, Hernandez reasons, "Katy" proposed that they meet for sex, not him.
The trial court included an entrapment instruction in the charge. A defendant may defend himself on the ground that he engaged in the charged conduct because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause someone to commit the offense, but merely affording a defendant the opportunity to commit an offense is not entrapment. TEX. PENAL CODE § 8.06(a). Once a defendant has made a prima facie case of entrapment, the State then has the burden of persuasion to disprove the defense beyond a reasonable doubt. Hernandez v. State, 161 S.W.3d 491, 498 (Tex. Crim. App. 2005). When there is conflicting evidence, the conflicts are for the jury to resolve because the viability of an entrapment defense depends on the weight accorded to the facts and credibility assessments. See id. at 498-99; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). In reviewing the jury's verdict, this court must decide whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt and also could have found against Hernandez on the issue of entrapment beyond a reasonable doubt. See id.; Flores v. State, 84 S.W.3d 675, 681 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). We view the evidence in the light most favorable to the jury's verdict, and we defer to the jury's credibility determinations. See Adelman, 828 S.W.2d at 421; Flores, 84 S.W.3d at 681-82.
The charged offense prohibits one from knowingly asking a minor by internet communications to meet in person for the purpose of having sex. See Ex parte Lo, 424 S.W.3d 10, 16-17 (Tex. Crim. App. 2013). In his post-arrest statement, Hernandez acknowledged that, after his online communications with "Katy," he intended to have sex with her even though he thought she was 15 and that he knew he could get in trouble for having sex with a girl of that age. The Craigslist advertisement that he responded to did not have any explicit sexual content. In their conversation, it was Hernandez who first raised the topic of sex and he did so after "Katy" had disclosed her age. While her youth made Hernandez hesitate, rather than trying to end their conversation, he instead sought to confirm that "Katy" was who she claimed, asking her to send a second picture, one in which she would place a spoon in front of her nose. When "Katy" declined, Hernandez explained that he was trying to verify her identity on account of her age and said that he wanted to have sex with her but did not want "to get in trouble for it." Only after they had agreed to a telephone call as a means of confirming her identity did "Katy" ask if Hernandez was "looking to come over tonight," to which he replied, "Sure," and said that he would come over to her place if she could host.
The jury found beyond a reasonable doubt that the proof was sufficient to convict Hernandez of the offense of soliciting a minor online and also found beyond a reasonable doubt that Agent Guerra did not induce Hernandez to commit an offense that he otherwise would not have committed. The evidence that it heard was legally sufficient to permit it to render the verdict that it did.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. Do not publish. TEX. R. APP. P. 47.2(b).