Perales v. State

622 S.W.3d 575

Robert Ronald PERALES, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00236-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed March 25, 2021

Rehearing Denied April 22, 2021

Discretionary Review Refused July 28, 2021

Theodore Lee Wood, Houston, for Appellant.

Clinton Morgan, Houston, for Appellee.

Panel consists of Justices Bourliot, Hassan, and Poissant.

Frances Bourliot, Justice

Appellant Robert Ronald Perales challenges his conviction for online solicitation of a minor. Concluding that the jury's guilty finding is supported by legally sufficient evidence, the trial court did not err in admitting evidence of an internet search by appellant, and appellant was not entitled to an outrageous government conduct defense, we affirm.

Background

Appellant started a conversation on the Plenty of Fish dating application with a user who had a profile identifying herself as 18-year-old Jennifer. Unbeknownst to appellant, the account had been created and was managed by Sergeant Wilson of the High-Tech Crimes Unit of the Harris County Sheriff's Office. There were three pictures on the account of another officer, taken when she was 14 and 16 years old.

After exchanging a series of messages on Plenty of Fish, Wilson, posing as Jennifer, asked appellant how old he was.¹ Appellant said that he was 20, but he was 26. Jennifer then disclosed that she was only 16. Appellant responded, "[I] still wanna get to know you if that[']s cool." Jennifer asked, "how much"? to which appellant responded, "A lot." During the conversation, appellant discussed in detail sexual acts he planned to engage in with Jennifer, ultimately leading to sexual intercourse. She said she was afraid of getting pregnant, to which he responded that he could bring a condom. She also told him that she lived with her mother. Appellant asked when Jennifer's mother was leaving for work and asked for Jennifer's address, which she provided. Jennifer told appellant he could come over "Now I guess if you fr" ("fr" meant "for real"). Appellant gave Jennifer his phone number and said he was on the way. He then asked, "Are you the police?"

Deputy Chu, posing as Jennifer, then called appellant. Appellant said he would arrive around 9 p.m. After the phone call, Chu and appellant began texting each other. Appellant again asked if she was the police and said he wanted to "mak[e] sure this isn[']t a set up." Appellant also texted later, "You sound older than 16" and asked for a picture. She responded that she was getting ready. Appellant then texted that he was at the gate of the apartment complex where Jennifer purportedly lived. Appellant asked her to meet him at his car, but she asked him to come to the door. Appellant called and again asked her to come outside, and she first said she was scared and then said she was not "fully dressed." Appellant said "this sounds suspicious" but eventually went to the apartment door. Police officers opened the door. Appellant ran away, but when he was apprehended, he said he was sorry and said, "please forgive me."

A jury found appellant guilty of online solicitation of a minor and assessed punishment at three years' confinement. The trial court suspended the sentence, placed appellant on community supervision for five years, and certified appellant's right to appeal.

Discussion

In six issues, appellant challenges (1) the sufficiency of the evidence in support of the jury's finding of guilt, (2) the jury instruction on the entrapment defense submitted to the jury, and (3) the trial court's admission of evidence involving an internet search made by appellant. Appellant also contends police officers engaged in outrageous government conduct in violation of his due process rights by "creat[ing] an online persona with an intentionally ambiguous age and then arrest[ing] a man for child solicitation." We first address the sufficiency challenges and then the remaining issues.

I. Sufficiency Challenges

Appellant contends (1) there is no evidence that he solicited an actual individual, (2) the evidence conclusively establishes reasonable doubt regarding whether appellant believed Jennifer was under 17, and (3) the evidence conclusively establishes "reasonable doubt as to the non-existence of entrapment." When reviewing sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We do not sit as a thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic to ultimate facts. Id. This standard applies equally to both circumstantial and direct evidence. Id. Each fact need not point directly and independently to the appellant's guilt so long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to the elements of the offense as defined by the hypothetically correct jury charge for the case. Zuniga v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). The hypothetically correct jury charge 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. Id. The "law as authorized by the indictment" includes the statutory elements of the offense as modified by the indictment. Id.

A person commits the offense of online solicitation of a minor

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 § 33.021(c). "Minor" is defined as "an individual who is younger than 17 years of age" or "an individual whom the actor believes to be younger than 17 years of age." Id. § 33.021(a)(1).

Appellant was indicted with the following:

knowingly solicit[ing] over the internet, through a commercial online service, and by an electronic message service and system M. Wilson ... an individual whom the Defendant believed to be younger than seventeen years of age to meet [appellant] with the intent that the Complainant would engage in sexual contact, sexual intercourse, and deviate sexual intercourse with [appellant].

"An individual." In his first issue, appellant concedes that he "solicit[ed] ‘Jennifer’ for sex," but contends "Jennifer is not an actual person." According to appellant, because Officer Wilson assumed a fake identity, he was not an individual as defined under the statute. Appellant says, "if a police officer is impersonating an individual, then he or she is necessarily not an individual." (Emphasis in original.)

Despite this novel argument, we have noted that the statute is meant to permit police officers "to pos[e] as ... minor[s]" to intercept sexual predators before they "physically appear" at a meeting place to engage in sexual activity with a child. Ex parte Moy , 523 S.W.3d 830, 837 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (citing Senate Criminal Justice Comm., Bill Analysis, Tex. H.B. 2228, 79th Leg., R.S. (2005), and Tex. Penal Code § 33.021(c) ). The Court of Criminal Appeals similarly recognized the "legitimate goal" under the statute "of prosecuting ‘sexual predators who attempt to solicit a minor, or a police officer posing as a minor , for unlawful activity when the individual does not show up for the meeting.’ " Ex parte Lo , 424 S.W.3d 10, 26 (Tex. Crim. App. 2013) (emphasis added) (citing House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 2228, 79th Leg., R.S. (2005)); see also Ex parte Ingram , 533 S.W.3d 887, 897 (Tex. Crim. App. 2017) ("A police officer could be impersonating an individual under age 17 as part of a sting operation.").

Unbeknownst to appellant, Jennifer was, in fact, Officer Wilson. Nothing in the statute, however, prohibited Officer Wilson from posing as Jennifer in an attempt "to intercept sexual predators before they ‘physically appear’ at a meeting place [to engage] in sexual activity with a child." Moy , 523 S.W.3d at 837. In fact, the legislature expressly stated that under the statute, officers would be permitted to do so "to stop an offender before the offender could injure [a] child." Id. (citing House Criminal Jurisprudence Comm., Bill Analysis, H.B. 2228, 79th Leg., R.S. (2005)). We conclude there is sufficient evidence to support the jury's finding that Officer Wilson was an individual as defined by the statute. We overrule appellant's first issue.

"[W]hom [appellant] believe[d] to be younger than 17 years of age." Appellant also contends in his second issue that the evidence conclusively establishes a reasonable doubt as to his belief that the solicited individual was under 17. Appellant points to the following evidence in support of this argument: (1) Jennifer's Plenty of Fish profile said she was 18, and Plenty of Fish is an adult dating website whose users are supposed to be 18 or older; (2) appellant said he thought Jennifer was around 23 because his ex-girlfriend was 23 and Jennifer's profile photos looked...