Sanchez v. State ( 2013 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1289-12
ABEL SANCHEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
K ELLER, P.J., delivered the unanimous opinion of the Court.
The indictment in this case alleged that “on or about” January 24, 2006, appellant
solicited sex from “Molly Shaw,” a girl under seventeen years of age. When communication
over the internet first began, the girl purported to be fifteen and gave appellant a date of birth
that was within three years of his. Appellant communicated with Molly several more times
over the course of nearly two years, but she continued to report her age as fifteen. After
Molly agreed to meet appellant for a sexual rendezvous, her secret for agelessness was
revealed when he learned that she was actually Bruce Marshall, an undercover police
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detective. The questions in this case are: does the affirmative defense in § 22.011(e) of the
Penal Code1 apply to the criminal-solicitation-of-a-minor statute, and, if so, did the evidence
at trial justify an instruction on that affirmative defense? We hold that the affirmative
defense in § 22.011(e) does apply to the criminal-solicitation-of-a-minor statute and that the
jury should have been so instructed. We reverse the judgment of the court of appeals and
remand the case for it to consider whether appellant was harmed by the omission of the
instruction.
I. BACKGROUND
A. The Arrest and Trial Court Ruling
In 2001, Garland Police Detective Bruce Marshall, assigned to the Internet Crimes
Against Children Unit, began investigating online instances of sexual solicitation of children
and child pornography. Part of the detective’s job was to assume the profile of a child in an
online chat room and see who approached and initiated conversations. One of Detective
Marshall’s online characters was “Molly Shaw,” a fifteen-year-old girl who went by the
online name “sweetmollygirl.”
In April 2004, appellant began communicating with “Molly” in a chat room. Over the
course of several days, they conversed mainly about sex. Appellant repeatedly inquired as
1
Unless otherwise noted, the versions of the Penal Code cited in this opinion are
those from 2004 and 2006, which are the relevant versions for the facts applicable to this
case. As they relate to the instant case, there is no substantive difference between these
two versions.
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to whether “Molly” would have sex with him, and he tried in vain to persuade her to meet
with him to do so. During a conversation on April 30, 2004, appellant said that his birthday
was November 19, 1985, which was later confirmed by police as accurate, and “Molly” said
that her birthday was October 25, 1988.
Communications between “Molly” and appellant slowed after that time, but the two
did occasionally interact in the chat rooms, with appellant switching his online name from
time to time. The substance of the conversations remained the same; that is, appellant tried
to get “Molly” to meet him for sex. On January 24, 2006, “Molly” agreed to let appellant
come to her house to engage in sexual intercourse. She asked appellant, “Do you remember
my age . . . ?” Appellant replied, “Either 17, right, am I right, or 16, am I right?” “Molly”
reminded appellant that she was in fact fifteen, to which appellant replied, “Well damn girl,
how long you stay 15?” After some more exchanges, appellant agreed to meet “Molly” by
the mailboxes at her apartment complex and told her that he would bring condoms.
Later that day, appellant was arrested where he had agreed to meet “Molly.” The
police found condoms in his pocket. In a post-arrest interview, appellant admitted to
Detective Marshall that he knew “Molly” was fifteen and he had gone to her apartment
complex to have sex with her. Appellant was charged, among other offenses, with criminal
solicitation of a minor under § 15.031(b) of the Penal Code. The crime he was accused of
soliciting was sexual assault of a child, codified in § 22.011(a)(2) of the Penal Code.
At trial, the State introduced the chat-room transcripts from April 2004 that showed
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appellant soliciting sex from “Molly” and the two revealing their dates of birth to one
another. Appellant argued that he should have received an instruction on the affirmative
defense set out in § 22.011(e). As it relates to this case, that affirmative defense would
negate a finding of guilt for sexual assault of a child if the ages of the defendant and victim
are within three years of each other. Appellant argued that, because of the “on or about”
language in the indictment and jury charge, the jury would be able to convict based on
conduct that went back to the original communications in April 2004. Because the jury could
convict based on that conduct, and because their birthdays were within three years of each
other, appellant contended that the evidence raised a defensive instruction on that issue. The
trial court disagreed and overruled appellant’s objection.
B. The Court of Appeals’s Opinion
The court of appeals affirmed the conviction, ruling that the within-three-years
affirmative defense in § 22.011(e) was not applicable to solicitation of a minor in §
15.031(b).2 According to the court of appeals, the language of the criminal-solicitation
statute did not incorporate the defense, and the defense, by its terms, applied only in cases
where the defendant was actually charged with sexual assault of a child under §
22.011(a)(2).3
In the alternative, the court of appeals held that, even if the within-three-years
2
Sanchez v. State, No. 05-10-01605-CR, 2012 Tex. App. LEXIS 4059 (Tex.
App.—Dallas May 22, 2012, pet. granted) (mem. op., not designated for publication).
3
Id. at *7.
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affirmative defense were available in a solicitation-of-a-minor prosecution, the facts of this
case failed to raise all of the elements of the affirmative defense.4 The court reasoned that
the age difference is calculated from the victim’s age.5 “However, there is no victim in this
case; Molly Shaw was a fictitious character.”6 Therefore, she had no age from which to
calculate, and the defense could not apply.7
II. ANALYSIS
A. Applicable Law on Defensive Jury Instructions
As the court of appeals correctly noted, it is an affirmative defense to prosecution for
sexual assault of a child under § 22.011(a)(2) that the actor is not more than three years older
than the victim and the victim is a child fourteen years of age or older.8 “It is well settled that
a defendant has a right to an instruction on any defensive issue raised by the evidence,
whether that evidence is weak or strong, unimpeached or contradicted, and regardless of
what the trial court may think about the credibility of the evidence. This rule is designed to
ensure that the jury, not the judge, decides the credibility of the evidence.”9 The questions
we must decide are whether the affirmative defense in § 22.011(e) can be raised at all in a
4
Id. at *7-8.
5
Id. at *8.
6
Id.
7
Id.
8
See T EX. P ENAL C ODE A NN.§ 22.011(e).
9
Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (citations omitted).
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prosecution under § 15.031(b) and, if so, whether the facts justified such an instruction here.
B. Can the Affirmative Defense be Raised at All?
The court of appeals held that the within-three-years affirmative defense is
inapplicable to the criminal-solicitation-of-a-minor statute because the latter statute does not
refer to it, and the defense itself specifically refers only to the sexual-assault-of-a-child
statute. Resolving this issue is a matter of statutory construction, which is a question of law
that we review de novo.10
Section 15.031(b) states, in pertinent part, “A person commits an offense if, with
intent that an offense under Section . . . 22.011 . . . be committed . . . .” The plain language
of the statute incorporates the entirety of § 22.011.11 It makes no differentiation as to a
subsection of the statute. And we know from the face of § 15.031 that the legislature was
willing to specify subsections of statutes because, in § 15.031(a), it incorporates “Section
3g(a)(1), Article 42.12, Code of Criminal Procedure.” We doubt that the legislature would
be so precise in subsection (a) without intending to be less so in subsection (b).12 Thus,
10
Mahaffey v. State, 364 S.W.3d 908, 912 (Tex. Crim. App. 2012).
11
See id. at 213 (“When interpreting statutes, courts must seek to effectuate the
collective intent or purpose of the legislators who enacted the legislation. Toward that end,
we necessarily focus our attention on the literal text of the statute in question and attempt to
discern the fair, objective meaning of that text at the time of its enactment.” (internal
quotation marks and citations omitted)).
12
In fact, subsection (b) was later amended to specify subsections to several other
statutes, but, notably, no subsection was specified for § 22.011. See T EX. P ENAL C ODE A NN.
§ 15.031(b) (West 2013).
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because the plain language of § 15.031(b) incorporates the § 22.011(e) affirmative defense,
the court of appeals erred when it ruled that such an affirmative defense is inapplicable in a
prosecution for criminal solicitation of a minor.
Moreover, § 15.031(b) states, in relevant part:
A person commits an offense if, with intent that an offense under Section . .
. 22.011 . . . be committed, the person by any means requests, commands, or
attempts to induce a minor or another whom the person believes to be a minor
to engage in specific conduct that, under the circumstances surrounding the
actor’s conduct as the actor believes them to be, would constitute an offense
under [that] section[] . . . .13
The highlighted language shows that the statute looks to the facts as the defendant “believes
them to be.” The within-three-years affirmative defense negates an offense from having been
committed under § 22.011. Thus, if the circumstances surrounding the defendant’s conduct
were such that he believed the minor’s age to be within three years of his own, then he would
not have committed an offense at all, provided he raised and proved the within-three-years
affirmative defense. Therefore, the court of appeals’s holding that the affirmative defense
in § 22.011(e) is not applicable in a prosecution under § 15.031(b) is contrary to the plain
language of that statute.14
C. Could Appellant Raise the Defense under the Facts of this Case?
13
T EX. P ENAL C ODE A NN. § 15.031(b) (emphasis added).
14
Because the plain language of the statute answers the question, we do not consider
any absurdities that may result from a contrary reading. We note, however, that it would be
absurd to conclude that one could not commit a sexual assault of a child if the two parties’
ages were within three years of each other, but that one could solicit that same criminal act
regardless of their ages.
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In an alternative holding, the court of appeals ruled that, “even if the affirmative
defense applied to offenses under section 15.031(b), here the evidence fails to raise all
elements of the affirmative defense.”15 It reasoned that, “there is no victim in this case;
Molly Shaw was a fictitious character without age.” Thus, there was no way that appellant’s
age could be calculated within three years of “Molly’s” age.
That alternative holding, however, misapplies the language of § 15.031(b) to the facts
of this case. The court of appeals was factually mistaken when it indicated that “Molly” was
fictitious. “Molly” is Detective Marshall, a real person using a pseudonym. Section
15.031(b) criminalizes solicitations of “a minor or another whom the person believes to be
a minor . . . .” Here, appellant believed Detective Marshall was a minor.
The court of appeals’s analysis is somewhat self-contradictory. If it is correct that
“Molly’s” age cannot be calculated because she is a fictitious character, then she also cannot
be underage for the purpose of the offense of solicitation of a minor itself. The court said
that appellant could be guilty of solicitation of a minor even though no minor actually existed
to solicit. But it also denied appellant the affirmative defense because there was no victim,
but if there was not a victim then there was no culpable conduct on appellant’s part. Here,
appellant solicited a person who he believed was a minor, namely, Detective Marshall.
Therefore, the court of appeals erred when it concluded that there was no victim in this case
to be solicited.
15
Sanchez, 2012 Tex. App. LEXIS 4059, at *7-8.
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But the court of appeals’s mistaken interpretation does not necessarily mean that
appellant was entitled to an instruction on the within-three-years affirmative defense. The
evidence still had to raise the defensive issue. According to the State, no set of facts could
have raised the issue. Appellant was caught on January 24, 2006, when he was twenty years
old. Under scenario A, appellant was twenty and “Molly” was fifteen, and, thus, no
defensive issue was raised, as there was more than three years between their ages. Under
scenario B, appellant was twenty, but thought “Molly” was really seventeen, her claim of still
being fifteen notwithstanding. Both the criminal-solicitation statute and the sexual-assault
statute define “minor” or “child,” respectively, as someone younger than seventeen.16 Thus,
if appellant really thought “Molly” was seventeen, then there would have been no crime at
all, and, as a result, the evidence would not support the affirmative defense. Instead, the only
issue for the jury would have been whether appellant believed “Molly” was younger than
seventeen when he solicited her, which was what the jury was charged with deciding.
But that reasoning ignores that appellant was not just charged with criminal conduct
that might have occurred on January 24, 2006. He was, instead, charged with conduct that
might have occurred “on or about” January 24, 2006. “It is well settled that the ‘on or
about’ language of an indictment allows the State to prove a date other than the one alleged
in the indictment as long as the date is anterior to the presentment of the indictment and
16
T EX. P ENAL C ODE A NN. § 15.031(f); id. § 22.011(c).
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within the statutory limitation period.”17 What that means in the instant case is that the State
could have obtained a conviction for any solicitations by appellant to “Molly” that occurred
on or before the date in the indictment up to the statute-of-limitations cutoff date. Even using
the shortest possible statute of limitations period—three years18 —no conduct the State
attempted to prove occurred outside that time frame.19 At trial, the State introduced the chat-
room transcripts into evidence. The jury charge also included the “on or about” language.
As a result, the jury could very well have concluded that appellant was guilty of criminal
solicitation of a minor based solely on his conduct in April 2004, not on conduct from a later
date. If that was the case, then “Molly” would be under seventeen and appellant would have
been within three years of her age. Thus, there would have been some evidence to raise the
affirmative defense in § 22.011(e). Therefore, the court of appeals erred when it ruled that
appellant was not entitled to that defensive instruction.
III. CONCLUSION
The affirmative defense in § 22.011(e) of the Penal Code is applicable in a
prosecution under § 15.031(b) and can be raised by a defendant if the evidence at trial
warrants its inclusion in the jury charge. We reverse the judgment of the court of appeals and
remand this case to the court of appeals to consider whether appellant was harmed when the
17
Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997).
18
See T EX. C ODE C RIM P ROC. art. 12.01.
19
The indictment was returned on April 27, 2006.
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trial court omitted such an affirmative-defense instruction.
DELIVERED: June 12, 2013
PUBLISH