ABEL SANCHEZ III v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Moseley

A jury convicted Abel Sanchez, III, of criminal solicitation of a minor.   The trial court assessed punishment at five years' imprisonment, suspended the sentence, and placed Sanchez on community supervision for five years.   In three points of error, Sanchez contends the trial court erred by not submitting two defensive instructions in the jury charge and that the evidence was legally insufficient to support the conviction.   The background of the case and the evidence adduced at trial are well known to the parties;  thus, we do not recite them here in detail.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm the trial court's judgment.

Sanchez's third point of error challenges the legal sufficiency of the evidence to support the conviction.   We apply the appropriate legal sufficiency standard of review.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Adames v. State, 353 S.W.3d 854, 860 (Tex.Crim.App.2011), cert. denied, 132 S.Ct. 1763 (U.S.2012).   In a legal sufficiency review, “we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Adames, 353 S.W.3d at 860.   This standard “recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence.”  Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge.   See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997)).

As applicable here, a person commits criminal solicitation of a minor if, with intent that sexual assault be committed, the person by any means requests, commands, or attempts to induce another whom he 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 sexual assault or would make the minor or other believed by the person to be a minor a party to the commission of sexual assault.   See Tex. Penal Code Ann. §§ 15.031(b), 22.011(a)(2) (West 2011).   A minor under this section is an individual under the age of seventeen.  Tex. Penal Code Ann. § 15.031(f).

From April 2004 to January 2006, Sanchez engaged in periodic online internet chat sessions with a character named Molly Shaw, who identified herself as a fifteen-year-old female living with her mother in Garland.   Unbeknownst to Sanchez, Molly was actually police detective Bruce Marshall.   Sanchez used several different identities during these sessions, but all were created using the same e-mail address.   The chat sessions were often sexually explicit and Sanchez asked several times to meet with Molly.

On January 24, 2006, Sanchez chatted with Molly for some time and told her he wanted to meet her to have “mad sex.”   During this chat session, Molly asked if he remembered her age.   Sanchez said, “Either 17, right, am I right, or 16, am I right?”   Molly told Sanchez she was fifteen.   He responded, “Well damn, girl, how long you stay 15?”   He also said he thought her birthday had already passed.   Molly asked if he remembered her birthday and he said no, she never told him her birthday.

Sanchez continued chatting with Molly, suggesting that if he came over, she might “rape” him, but then said he actually would like that.   He said he wanted to come over and give her “my dick fun.”   He later said he was just playing when he suggested they have sex because he did not know if Molly wanted to have sex.   Molly said she did not want to get pregnant “because 15 is too young to be a mommy.”   When Molly said she worried about getting pregnant or contracting a sexually transmitted disease, Sanchez reassured her that he had condoms and was disease-free.

Molly agreed to meet with Sanchez at the mailboxes of her apartments.   There he was arrested with condoms in his pocket.   In an interview with Marshall, Sanchez admitted that he knew Molly was fifteen and he had gone there to have sex with her.   Sanchez was twenty years old at the time of his arrest.   Sanchez told his mother after his arrest that he had been talking to Molly for a couple of years.

Sanchez argues the evidence is legally insufficient because he was mistaken as to Molly's age.¹  However, there is evidence in the record that on the date of the arrest, Molly told Sanchez at least twice that she was only fifteen years old;  yet he continued to solicit her to meet him to have sex.   He also admitted the same to Marshall.   Thus, the jury could reasonably conclude that Sanchez believed Molly was a minor.

Considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the accused guilty of the offense of criminal solicitation of a minor beyond a reasonable doubt.   See Jackson, 443 U.S. at 319;  Adames, 353 S.W.3d at 860.   We overrule Sanchez's third issue.

Sanchez's first point of error argues he was entitled to submission of an affirmative defense that he was not more than three years older than the victim at the time of the offense.   See Tex. Penal Code Ann. § 22.011(e).   The record indicates Sanchez objected to the omission of this affirmative defense from the charge.

It is an affirmative defense to prosecution for sexual assault of a child under section 22.011(a)(2) that the actor is not more than three years older than the victim and the victim was a child of fourteen or older.   See Tex. Penal Code Ann. § 22.011(e).

A defendant is generally entitled to a jury instruction on every claimed defensive issue so long as the evidence adduced at trial is sufficient to raise each element of the defense.   See Granger v. State, 3 S.W.3d 36, 38–39 (Tex.Crim.App.1999).   The strength, source, or credibility of the evidence is immaterial to whether it is sufficient to raise the defense.  Id. However, if the evidence fails to raise every element of a defensive issue, the trial court may refuse to grant an instruction requested by the defendant.   See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993);  Stefanoff v. State, 78 S.W.3d 496, 500 (Tex.App.—Austin 2002, pet. ref'd).

The requested affirmative defense under section 22.011(e) is an affirmative defense to prosecution for sexual assault of a child under section 22.011(a)(2).  Tex. Penal Code Ann. § 22.011(a)(2), (e).   Unlike other defenses, this affirmative defense is specific to sexual assault of a child under subsection (a)(2) of section 22.011.  Id.;  cf.  Tex. Penal Code Ann. §§ 8.01–.03,  8.05–.06  (defining defenses and affirmative defenses to prosecution in general).   Sanchez was not prosecuted for sexual assault of a child under section 22.011(a)(2);  he was prosecuted for criminal solicitation of a minor under section 15.031(b).  That section does not include such an affirmative defense and does not reference the affirmative defense provided in section 22.011(e).   See In re F.J.S., 324 S.W.3d 207, 210–11 (Tex.App.—El Paso 2010, no pet.) (age-difference affirmative defense did not apply to prosecution for aggravated assault under section 22.021).

However, 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.   The age-difference affirmative defense requires that the actor be no more than three years older than the victim and the victim be age fourteen or older.  Tex. Penal Code Ann. § 22.011(e).   The age difference is calculated from the victim's age.   See Brown v. State, 990 S.W.2d 759, 760 (Tex.App.—Austin 1999, no pet.).   Thus, an element of the affirmative defense is that the victim was fourteen years old or older at the time of the offense.   However, there is no victim in this case;  Molly Shaw was a fictitious character without age.

Because there is no evidence raising an element of an applicable affirmative defense, the trial court did not err by denying the requested instruction.   We overrule Sanchez's first point of error.

Sanchez's second point of error contends he was entitled to submission of a mistake of fact defense as to the age of the victim.   See Tex. Penal Code Ann. § 8.02(a).   It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.  Id.

The trial court has a duty to instruct the jury on the law applicable to the case.   See Tex.Code Crim. Proc. Ann. art. 36.14 (West 2007);  Posey v. State, 966 S.W.2d 57, 61–62 (Tex.Crim.App.1998).   However, a defensive issue is not law applicable to the case unless the defendant timely requests the issue or objects to the omission of the issue from the jury charge.  Posey, 966 S.W.2d at 62.   In other words, article 36.14 does not impose a duty on the trial court to sua sponte instruct the jury on unrequested defensive issues.   Id.

Nothing in the record shows that Sanchez requested a jury instruction on the defense of mistake of fact or that he objected to the omission of such an instruction.   Thus the trial court did not commit charge error.   See Posey, 966 S.W.2d at 62.   We overrule Sanchez's second point of error.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ABEL SANCHEZ, III, Appellant

No. 05–10–01605–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 195th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F06–27884–N).

Opinion delivered by Justice Moseley, Justices Morris and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 22, 2012.

/Jim Moseley/

JIM MOSELEY

JUSTICE

FOOTNOTES

FN1. Sanchez argues the evidence is insufficient to support the rejection of the age-difference and mistake of fact defenses under the factual sufficiency standard of review for defenses.   See Meraz v. State, 785 S.W.2d 146, 154–55 (Tex.Crim.App.1990) (“the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust”);  Johnson v. State, No. 05–09–00133–CR, 2010 WL 5142392, at *7 (Tex.App.—Dallas Dec. 20, 2010, pet. ref'd) (not designated for publication) (recognizing Meraz as good law).   However, these defenses were not submitted to the jury and, as we discuss below, Sanchez has not shown the trial court erred by not submitting the issues.   Therefore, we do not address the sufficiency of the evidence to support a rejection of the defenses..  FN1. Sanchez argues the evidence is insufficient to support the rejection of the age-difference and mistake of fact defenses under the factual sufficiency standard of review for defenses.   See Meraz v. State, 785 S.W.2d 146, 154–55 (Tex.Crim.App.1990) (“the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust”);  Johnson v. State, No. 05–09–00133–CR, 2010 WL 5142392, at *7 (Tex.App.—Dallas Dec. 20, 2010, pet. ref'd) (not designated for publication) (recognizing Meraz as good law).   However, these defenses were not submitted to the jury and, as we discuss below, Sanchez has not shown the trial court erred by not submitting the issues.   Therefore, we do not address the sufficiency of the evidence to support a rejection of the defenses.

JIM MOSELEY JUSTICE