John Gess v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00097-CR
JOHN GESS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2021-422,658, Honorable William R. Eichman II, Presiding
October 28, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Following a plea of not guilty, Appellant, John Gess, was convicted by the trial
court of online solicitation of a minor and sentenced to confinement for four years.1 By a
sole issue, he maintains the evidence is insufficient to support his conviction. We affirm.
1 TEX. PENAL CODE ANN. § 33.021(b)(1).
BACKGROUND
Texas Department of Public Safety Agent Khalid Khatib was conducting a sting
operation in Lubbock. He posed as a fourteen-year-old girl on a social media application
and posted a photo. Appellant responded “wanna get a room?” The two communicated
via text message for six days. The agent asked open-ended questions intended to solicit
certain responses. Appellant’s replies became sexually explicit and described sexual acts
he would perform if he had a girlfriend. The agent indicated “I’ve never done anything
like this” and Appellant sent a text suggesting “Let’s just meet today.” A date was set,
and plans were made to meet in the parking lot of a laundromat in Lubbock. Appellant
was arrested at the location.
ANALYSIS
By a sole issue, Appellant contests the sufficiency of the evidence to support his
conviction because the State failed to show he intended to commit sexual assault of a
minor. He also challenges the sufficiency of the evidence to show Lubbock County was
the proper venue for prosecution of the offense. We disagree.
STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE
Due process requires that a conviction be based on legally sufficient evidence.
Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021). The only standard a
reviewing court should apply is whether a rational jury could have found each essential
element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010). When reviewing the sufficiency of the evidence, we consider all
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evidence, direct and circumstantial and whether properly or improperly admitted, and view
it in the light most favorable to the verdict. Dunham v. State, 666 S.W.3d 477, 482 (Tex.
Crim. App. 2023). In doing so, we compare the statutory elements as defined by a
hypothetically correct jury charge. Id. The trier of fact is the sole judge of the credibility
and weight to be attached to the evidence. Id. When the record supports conflicting
inferences, we presume the trier of fact resolved those conflicts in favor of the verdict and
defer to that determination. Id.STANDARD OF REVIEW—VENUE
The State is required to prove venue by a preponderance of the evidence. TEX.
CODE CRIM. PROC. ANN. art. 13.17; Huynh Le v. State, No. 07-22-00287-CR, 2023 Tex.
App. LEXIS 5752, at *3 (Tex. App.—Amarillo Aug. 2, 2023, pet. ref’d) (mem. op., not
designated for publication) (citing Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d)). Unless venue is disputed in the trial court, or the
record affirmatively shows the contrary, a court of appeals must presume “venue was
proved in the trial court.” TEX. R. APP. P. 44.2(c)(1).2 Evidence is sufficient to prove venue
if “from the evidence the [trier of fact] may reasonably conclude that the offense was
committed in the county alleged.” Edwards, 97 S.W.3d at 285 (citing Rippee v. State,
384 S.W.2d 717, 718 (Tex. Crim. App. 1964)).
2 Venue is not implicated in a sufficiency-of-the-evidence review to prove the statutory elements
and does not require acquittal in a sufficiency review. Schmutz v. State, 440 S.W.3d 29, 35 (Tex. Crim.
App. 2014). A venue error is reviewed for non-constitutional harm under Rule 44.2(b) of the Texas Rules
of Appellate Procedure. Id. at 40.
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ANALYSIS
Appellant contends the intent of the conversation between he and Agent Khatib
was to meet on the agreed date, not to engage in any sexual acts. Thus, he claims the
State failed to prove he intended to commit sexual assault of a child. We find his
argument has no merit for two reasons. First, online solicitation of a minor is complete at
the time of the solicitation on the Internet and not at some later time if and when the two
meet. Ex parte Lo, 424 S.W.3d 10, 23 (Tex. Crim. App. 2013). Second, Appellant’s
argument disregards critical comments he made in his text messages. For example,
when the agent asked, “What all do you think we’ll do if we ever meet,” Appellant
acknowledged his belief the girl was underage but nevertheless replied, “I would go slow
with you.” “I want to introduce you to everything.” “I want to be your first for everything.”
He also asked, “[h]ave you ever had oral performed on you” and “[h]ave you ever had
your tits sucked on”? When the agent replied “no,” he responded, “[y]ou’ll love it.”
Posing as a young girl, the agent claimed to be a virgin to which Appellant
responded, “I would never hurt you I am gonna take special care of your body and your
heart.” Hypothetically, he described explicit sexual acts he would perform if he had a
girlfriend. A few days after the explicit texts, Appellant discussed meeting the girl with
whom he believed he had been communicating.
During his interview with law enforcement, Appellant denied any intent to sexually
assault the person with whom he had been exchanging text messages. The messages,
however, expressed an intent to commit sexual acts with a girl whom he believed was
fourteen years old. Although he stated “[w]e can’t do anything today just meet,” the
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requisite intent arose at the time of the solicitation of a minor. Reighley v. State, 585
S.W.3d 98, 108 (Tex. App.—Amarillo 2019, pet. ref’d) (citing Ex parte Zavala, 421 S.W.3d
227, 232 (Tex. App.—San Antonio 2013, pet. ref’d)).
Regarding venue, Appellant contends Agent Khatib did not specify geographical
parameters for the application used in the sting operation. His cell phone has a Raleigh,
North Carolina area code, and he was in the military which he argues created an inference
he could have been living anywhere.
Article 13.19 of the Texas Code of Criminal Procedure provides that when an
offense is committed within the State and it cannot readily be determined in which county,
trial may be held in the county in which the defendant is apprehended. TEX. CODE CRIM.
PROC. ANN. art. 13.19. Article 13.25, which applies to computer crimes prohibited by
chapter 33 of the Penal Code, provides in part that prosecution is proper in any county in
which the defendant had control or possession of “material used in furtherance of the
offense.” Id. at art. 13.25(2)(B).
During the sting operation, Agent Khatib asked Appellant where he was from, and
he replied “Lubbock kinda.” The evidence showed that Appellant was arrested in a
parking lot at a laundromat in Lubbock County. It also showed he had control and
possession of his cell phone which he used to facilitate the offense in Lubbock County.
There was sufficient evidence for the trier of fact to reasonably conclude the offense was
committed in Lubbock County. Moreover, because the record does not affirmatively show
another county was the proper venue, we must presume venue was proven in the trial
court. See TEX. R. APP. P. 44.2(c)(1). We conclude the evidence is sufficient to support
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Appellant’s conviction and that venue was proper in Lubbock County. His sole issue is
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough
Justice
Do not publish.
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