Johnson v. State

1

James Kevin Johnson, Appellant v. The State of Texas

No. 02-22-00091-CR

Court of Appeals of Texas, Second District, Fort Worth

May 11, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from Criminal District Court No. 2 Tarrant County Texas Trial Court No. 1717997R

Before Sudderth, C.J.; Bassel and Womack, JJ.

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

I. Introduction

A jury found Appellant James Kevin Johnson guilty of online solicitation of a minor and assessed his punishment at five years in prison and a $3,000 fine. The jury further recommended that the trial court suspend Johnson's sentence and place him on community supervision. The jury did not recommend suspending the $3,000 fine. In accordance with the jury's verdict, the trial court sentenced Johnson to five years' confinement, suspended Johnson's sentence, and placed him on community supervision for eight years. The trial court fined Johnson $3,000 but did not suspend the fine.

In the trial court's judgment, however, the space for identifying the length of confinement is left blank. Further the box for indicating that the trial court suspended Johnson's sentence and placed him on community supervision was not checked. Had the box been checked, it would have correctly indicated that the trial court had placed Johnson on community supervision for eight years. The judgment correctly reflects that Johnson was fined $3,000 and that the fine was not suspended.

Nine days later, the trial court attempted to correct the above clerical errors in an order nunc pro tunc. This order correctly reflects that the trial court sentenced Johnson to five years' incarceration, suspended his sentence of confinement, and placed him on community supervision. But it incorrectly provides that the trial court placed Johnson on community supervision for five years (not the eight years stated at Johnson's sentencing).

On appeal, in one issue, Johnson contends that no evidence supported the finding that he committed the solicitation "over the Internet," as-he argues-the statute requires. Johnson maintains that there was no evidence that any of the text or electronic messages were sent over the Internet. The State responds that "over the Internet" was but one manner and means and that other manner and means were both authorized by the statute and proven at trial.

The State further requests that the judgment be modified to correctly reflect that the trial court suspended Johnson's sentence and placed him on community supervision for eight years.

We agree with the State, overrule Johnson's issue, modify the judgment to reflect that the trial court placed Johnson on community supervision for eight years, and as modified, we affirm the trial court's judgment.

II. Discussion A. The Statutory Language and Johnson's Construction

Johnson was convicted of "Online Solicitation of a Minor" or, more specifically, Section 33.021(c) of the Texas Penal Code:

(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

Tex. Penal Code Ann. § 33.021(c). Johnson argues that "[u]nder a plain reading of the statute, 'over the Internet' is a necessary element of the offense that can be accomplished 'by electronic mail or text message or other electronic message service or system, or through a commercial online service.'" We disagree.

B. Construing Statutes

When interpreting statutes, we look to their literal text and attempt to discern their fair, objective meaning at the time of their enactment. Herron v. State, 625 S.W.3d 144, 153 (Tex. Crim. App. 2021). If the language is clear and unambiguous, our analysis ends. Id. Courts do not add or subtract from such a statute. Id.

Courts presume that the Legislature used every word for a purpose and intended for the entire statutory scheme to be effective. Id. Thus, courts should give each word, phrase, clause, and sentence effect if reasonably possible and will not choose a construction that renders a statutory provision superfluous. Id.; State v. Schunior, 506 S.W.3d 29, 36 (Tex. Crim. App. 2016).

C. Superfluous

We first note that Johnson's construction would render superfluous the provision "by electronic mail or text message or other electronic message service or system, or through a commercial online service." Assuming the quoted language was illustrative of "over the Internet," it would remain superfluous.^[1] We will not, however, end our analysis there.

D. Terminology

Although the computer crimes' chapter (Chapter 33) of the Texas Penal Code provides a section devoted to definitions, that section does not define "Internet," "electronic mail," "text message," "electronic message service or system," or "commercial online service." Tex. Penal Code Ann. § 33.01. When statutorily undefined terms have no established legal definition or have not acquired a technical meaning deviating from customary parlance, we use their commonly accepted meanings. See generally Gardner v. State, 306 S.W.3d 274, 302-03 (Tex. Crim. App. 2009); Pardun v. State, No. 05-16-00792-CR, 2017 WL 5897897, at *5 (Tex. App.- Dallas Nov. 29, 2017, pet. ref'd) (mem. op., not designated for publication) (citing Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013), and Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015)).

When looking for general definitions,^[2] we have found the following:

• The "Internet" is "an electronic communications network that connects computer networks and organizational computer facilities around the world-used with the except when being used attributively."^[3]

• An "email" is "a means or system for transmitting messages electronically (as between computers on a network)."^[4]

• A "text message" is "a short message sent electronically usually from one cell phone to another."^[5]

• An "electronic message service" is "[t]he part of the radio spectrum assigned to electronic messaging over digital satellite circuits."^[6] • As for "commercial online service," the closest analogous term we have found is an "internet service provider," which is defined as "[a]n organization that provides access to the Internet. Email accounts may also be part of the service. Also called an 'Internet host,' an ISP connects to users via cable, DSL, FiOS or satellite; however, ISPs can also deliver service via analog dial-up, ISDN, private lines and wireless (see WISP)."^[7]

• "Online" is defined as "connected to, served by, or available through a system and especially a computer or telecommunications system (such as the Internet)."^[8]

Consequently, the language used by the Legislature is not exclusively illustrative of communications conducted over the Internet. The language used is broader. For example, "text messages" is a term associated with cell phones. The statute casts a broader net than just internet communications; it encompasses electronic communications over the Internet or some "other electronic message service or system." Tex. Penal Code Ann. § 33.021(c).

E. Not Ambiguous

We hold that Section 33.021(c) is not ambiguous. The clause, "by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor," expands the scope of electronic communications beyond those strictly "over the Internet." We read Section 33.021(c) to provide effectively,

A person commits an offense if the person,

[1] over the Internet, or

[2] by

[a] electronic mail or

[b] text message or

[c] other electronic message service or system, or

[3] through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

Thus, the question here is whether Johnson's communications with the complainant fall within that scope.

F. Testimony

When describing the offense of online solicitation of a minor, Detective Nate Bishop described it in terms of electronic communications:

So online solicitation of a minor, to put very simply, it's people -- it's a person having used this electronic communication. So it could be text messages, you know, Instagram, direct messages; some kind of electronic messaging in speaking with a person that either is under 17 or that they believe is going to be under 17.

Johnson is correct when he asserts that Bishop did not assert that the communications were "over the Internet." On the other hand, Bishop did assert that the communications must be electronic in some fashion.

Turning to the offense itself, Bishop stated that-posing as a child-he created a false profile on an application called SayHi and left it idle, but eventually someone contacted his profile. Bishop's use of the word "application" itself requires some explanation:

• An "application" has been defined as "[s]oftware that is used for business or entertainment," and "[t]he terms 'application,' 'application program,' 'software application,' 'software package' and simply 'app' may refer to virtually any type of program from spreadsheets such as Excel to media players such as iTunes. However, the term specifically excludes essential control software such as the operating system."^[9]

• As for the term "app," that term "has been shorthand for 'application' in the IT community for a long time. However, it

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