TRACY v. STATE (2026)

OPINION

Appellant is R.S.’s biological father. On May 15, 2020, Appellant and R.S. smoked marijuana and drank wine at Appellant's mother's house. Appellant tried to dance with R.S. in the rain, claiming that it was romantic. They drank more wine while lying on Appellant's bed. Then, Appellant tried to kiss R.S.’s neck and stick his tongue in her mouth. Appellant also touched R.S.’s breasts under her bra and touched R.S.’s clitoris with his finger. R.S. resisted Appellant's advances. R.S. later divulged Appellant's acts to her sister, and Appellant was arrested.

If this was a sexual assault case, the story would end there. But it is not. The State charged Appellant with both sexual assault and sexual performance of a child. See Tex. Penal Code §§ 22.011(a), 43.25(b). Before the start of Appellant's trial, the State sought a ruling to introduce evidence of Appellant's prior conviction for indecency with a child by contact.¹ The trial court indicated that the prior conviction was inadmissible as to the sexual assault count under Article 38.37 of the Code of Criminal Procedure, but the prior conviction would be admissible as to the sexual performance of a child count.² With the jury already sworn, the State made the tactical decision to dismiss the sexual assault count and proceed solely on sexual performance of a child in order to admit the prior conviction into evidence. The jury convicted Appellant and sentenced him to sixty years’ confinement. Appellant timely appealed.

If this Court were tasked with determining whether the evidence was sufficient to show that Appellant had committed sexual assault, that question would not be in doubt. But, because of the State's charging decision at Appellant's trial, we are instead tasked with determining whether the evidence was sufficient to sustain Appellant's conviction for sexual performance of a child. It is not.

But our review does not end there. Indeed, the State Prosecuting Attorney petitioned for review on two grounds.³ The SPA's second ground challenges the court of appeals’ decision to not reform Appellant's conviction to a lesser-included attempt offense. Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014); see also Turley v. State, 691 S.W.3d 612, 619 (Tex. Crim. App. 2024) (“If after finding the evidence insufficient to support a greater-inclusive offense the record clearly supports a conviction for an uncharged lesser-included offense, we are authorized, ‘indeed required,’ to avoid the ‘unjust’ result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense.”). We agree with the State that the evidence clearly supports reformation to the lesser-included offense of attempted sexual performance of a child. Accordingly, the judgment of the court of appeals is reversed and the case is remanded for a new punishment hearing.

I. Factual Background

a. Offense

The court of appeals recounted the following facts from the record:

R.S. met her father, Appellant, when she was fourteen years old. When she met him, she was aware that he had recently been released from prison, but she was unaware of the nature of the offense for which he was incarcerated. After this meeting, R.S. and Appellant met sporadically when they would drive around or go to restaurants, but R.S. “didn't spend that much time with just him.”

In May of 2020, when R.S. was nearing her eighteenth birthday, Appellant asked her to spend the night with him. After R.S. agreed, Appellant picked her up in Coppell and drove her to Appellant's mother's house in Hillsboro. R.S. and Appellant decided to set up a tent in the backyard and pretend like they were camping. While in the tent, R.S. and Appellant drank wine and smoked marijuana. Eventually, R.S. and Appellant fell asleep with Appellant holding R.S. Afterward, R.S. felt “fine” and “good” about the campout and her mother came and picked her up.

On May 15, 2020, R.S. reached out to Appellant to see if she could again stay with him overnight. R.S. and her boyfriend had gotten into an argument and R.S. believed that he was likely to break up with her. She wanted to stay with Appellant because she knew that Appellant “had weed” and she wanted to forget about the argument with her boyfriend. Appellant again picked R.S. up in Coppell and drove her back to Hillsboro. After eating dinner, R.S. and Appellant went to Appellant's room. R.S. played video games while Appellant was “on his phone.” After a short period of time, Appellant began smoking marijuana, which he offered to R.S. R.S. and Appellant then smoked marijuana and drank wine throughout the night. After running out of wine, Appellant and R.S. went to a convenience store, where Appellant bought more alcohol. It had started to rain when they arrived at the house. Before entering the house, Appellant tried to dance with R.S., claiming that it was romantic. Once back in Appellant's room, they drank the alcohol while they lay on Appellant's bed. Eventually, Appellant tried to kiss R.S.’s neck and stick his tongue in her mouth. Appellant felt R.S.’s breasts under her bra and put his hand into her pants and touched her clitoris. R.S. resisted Appellant's advances, both physically and verbally. Upon penetrating R.S.’s vagina, Appellant pulled his hands out of R.S.’s pants and began panicking, saying that he should not have done what he did. Appellant then left the room and did not return until the morning. When he did return, R.S. was still sitting on the bed with her hands over her face and shaking. R.S. stated that she was in shock. Later, R.S.’s mother picked her up.

Some days later, R.S. told her sister what Appellant had done to her. R.S.’s sister told R.S.’s mother. R.S.’s mother then took R.S. to the Hillsboro Police Department to report the sexual assault. R.S. was examined by a Denton County Sexual Assault Nurse Examiners Team. Eventually, Appellant was arrested.

Tracy v. State, 704 S.W.3d 240, 241–42 (Tex. App.—Amarillo 2024) (internal footnote omitted).

b. Trial

Appellant was charged with sexual assault and sexual performance of a child. Appellant's indictment specifically alleged that Appellant, on or about the 15th day of May 2020:

(Count 1 – Sexual Assault) did then and there intentionally or knowingly cause the penetration of the sexual organ of [R.S.] by [Appellant's] finger, without the consent of the complainant.

(Count 2 – Sexual Performance) did then and there intentionally or knowingly induce a child who was then and there younger than 18 years of age, namely [R.S.], to engage in sexual conduct, namely the penetration of the sexual organ of R.S. and/or the touching of the breast of R.S., and the defendant knew the character of and content of the sexual conduct.

At trial, the State offered Appellant's prior conviction for indecency with a child. That offense is admissible character conformity evidence in the trial of certain offenses. See Tex. Code Crim. Proc. art. 38.37, § 2(a)(1)(G), (b). The State argued that a limiting instruction would be sufficient by telling the jury they could consider the prior conviction only as to the sexual performance count. The trial court disagreed and ruled that the danger of unfair prejudice to the sexual assault count remained and excluded the extraneous offense. The State then strategically decided to abandon the sexual assault count and asked the trial court to reconsider its ruling. The trial court then admitted the prior conviction. Appellant was convicted of sexual performance of a child and was sentenced to sixty years’ confinement.

c. Appeal

The court of appeals reversed. Tracy, 704 S.W.3d at 246. The court of appeals first noted that “[t]he record evidence in the current case sufficiently prove[d] that Appellant committed sexual assault by penetrating R.S.’s sexual organ without her consent,” but that Appellant was not convicted of sexual assault. Id. at 243. Utilizing the common usage definitions of the word “induce,” the court of appeals concluded that “inducement requires an effect on the induced party's course of action. Thus, the State had to prove not only that Appellant attempted to persuade or influence R.S. into sexual conduct but, also, that his attempt was successful, causing her to at least acquiesce to his advances.” Id. at 244. The court of appeals rejected the notion that Appellant needed to “specifically request that R.S. engage in sexual conduct,” because “the statute does not require that the inducement be ‘verbal and explicit.’ ” Id. And the court of appeals rejected the argument that Appellant had “created a scenario in which R.S. would be unlikely to refuse Appellant's advances” because Appellant neither brought R.S. somewhere she was not supposed to be nor made “any explicit or implied threats or promises to her.” Id. at 245. Lastly, the court of appeals held that the State failed to prove that R.S. relented to Appellant's advances because the evidence at trial showed that R.S. resisted Appellant during the assault. Id. at 246.

On the question of reformation, the court of appeals specifically held:

Our review of the record leads us to conclude that the evidence does not establish that Appellant created a scenario in which R.S. would be unlikely to refuse Appellant's advances.

* * *

We are unwilling to conclude that providing alcohol and/or drugs to a child, taken alone, is sufficient to create a scenario in which the child would not likely feel able to refuse the advances of an adult. Further, that this was not a scenario in which R.S. felt like she could not refuse Appellant's advances is evidenced by the fact that she did resist. We conclude that the evidence is insufficient to establish that Appellant attempted to induce R.S. to engage in sexual conduct.

Id. at 245. Based on these conclusions, the court of appeals found the evidence insufficient to support Appellant's conviction and rendered a judgment of acquittal. Id.

II.  Applicable Law

a. Section 43.25

Under Section 43.25 of the Penal Code, “A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to engage in sexual conduct or a sexual performance.” Tex. Penal Code § 43.25(b). “Sexual conduct” means “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” Id. § 43.25(a)(2). “Sexual contact” means “any touching of the anus, breast, or any part of the genitals of another person with the intent to arouse or gratify the sexual desire of any person.” Id. § 43.01(3); see also id. § 43.25(a)(7).

b. Sufficiency, briefly

A challenge to the sufficiency of the evidence is reviewed under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evidence is legally sufficient to support a conviction if, when viewing all of the evidence in the light most favorable to the verdict, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023); Jackson, 443 U.S. at 319.

III. The State failed to prove that R.S. “engaged in” sexual conduct.

The simple way to resolve this case is on the question of whether R.S. “engaged in” any sort of sexual conduct with Appellant. The correct answer, as the court of appeals recognized, is no.

“A court can consult standard dictionaries to ascertain the meaning of undefined terms.” Milton v. State, 721 S.W.3d 300, 303 (Tex. Crim. App. 2025) (citing Ex parte Reeder, 691 S.W.3d 628, 632 (Tex. Crim. App. 2024)). “Engage” means “to do or take part in something.” Engage, https://www.merriam-webster.com/dictionary/engage (last visited on September 17, 2026). Cambridge Dictionary defines the phrase “engage in something” as “to take part in something.” Engage in something, https://dictionary.cambridge.org/us/dictionary/english/engage-in (last visited September 17, 2026).⁴

In sum, the State needed to prove at trial that Appellant induced R.S. to “take part in” sexual conduct. A review of the record shows that there is no evidence that R.S. took part in or participated in the sexual conduct.

After Appellant repeatedly asked R.S. to dance with him in the rain, telling her that “whatever was happening was so romantic,” Appellant took R.S. to Appellant's bedroom. R.S. laid down on the bed, and Appellant started kissing her. She turned her head away. Appellant had to grab R.S.’s face and turn it back towards him. When Appellant tried to force his tongue into her mouth, R.S. kept her mouth closed. When Appellant kept grabbing her and began touching her breasts under her bra, R.S. told Appellant she was on her period. Appellant then put his hands down her pants and felt R.S.’s underwear, told her that he liked the way her butt felt, and asked if she had worn black lacy underwear for him. R.S. did not answer. In her words, she “just froze,” unable to do anything. After touching R.S.’s clitoris for some time, Appellant eventually pulled his hand out of R.S.’s pants. By that point, R.S. had covered her face with her hands.

Examining the evidence “in the light most favorable to the verdict,” McPherson, 677 S.W.3d at 664, the evidence is insufficient to show that R.S. “engaged in” sexual conduct. The evidence is likewise insufficient to show that R.S. “engaged in” masturbation. See Tex. Penal Code § 43.25(b) (including “masturbation” as a definition of “sexual conduct”). The evidence at trial showed only that R.S. resisted Appellant's advances. R.S. turned her head away when Appellant first began to kiss her, and Appellant had to forcibly grab R.S.’s face and turn it back towards him. R.S. kept her mouth shut when Appellant tried to force his tongue into her mouth. In an effort to dissuade Appellant, R.S. told Appellant that she was on her period. When Appellant began touching R.S., R.S. “just froze” and was unable to do anything. After Appellant stopped touching R.S.’s clitoris, R.S. had covered her face with her hands. There is no evidence in the record that R.S. “participated in” or “took part in” the sexual conduct. Thus, the evidence is insufficient to support Appellant's conviction for sexual performance of a child.

IV. Reformation

In its second ground for review, the SPA argues that, should this Court conclude that the evidence is insufficient to support Appellant's conviction for sexual performance of a child, this Court should reform Appellant's conviction to the lesser-included offense of attempted sexual performance of a child. A conviction must be reformed if (1) in finding a defendant guilty of the greater offense, the jury necessarily found that the defendant committed the lesser offense, and (2) the evidence is legally sufficient to support the defendant's conviction for the lesser offense. Thornton, 425 S.W.3d at 299–300; see also Turley, 691 S.W.3d at 619. Attempted sexual performance of a child is by definition a lesser-included offense of completed sexual performance of a child. See Tex. Code Crim. Proc. art. 37.09(4). A person commits an attempt if, “with the specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Tex. Penal Code § 15.01(a).

To convict Appellant, a jury would have had to find that Appellant, “knowing the character and content thereof, induced R.S., a child younger than 18 years of age to engage in sexual conduct.” See id. § 43.25(b). The question, therefore, is whether Appellant had the specific intent to induce R.S. to engage in sexual conduct. We conclude that the evidence was more than sufficient to establish this. When viewing the evidence in the light most favorable to the verdict, the record clearly establishes that Appellant intended to have R.S. engage in sexual conduct with him. The record shows that Appellant danced with R.S. in the rain, told her how he was attracted to her, complimented her physical appearance, provided her wine and marijuana to lower her inhibitions, which she consumed, and then took her to his bedroom after his mother had gone to bed, escalating his sexual contact with her despite her demonstrated lack of cooperation. In other words, Appellant did several “act[s] amount[ing] to more than mere preparation” to get R.S. to engage in sexual conduct with him; R.S. simply did not do so.

That “the evidence does not establish that Appellant created a scenario in which R.S. would be unlikely to refuse Appellant's advances” does not change the result. Tracy, 704 S.W.3d at 245. Indeed, as we observed in Turley, “the ‘specific intent’ element of the attempt statute focuses on the actor's purpose in bringing about the desired result.” 691 S.W.3d at 619 (quoting Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (op. on reh'g) (“The element ‘with specific intent to commit an offense’ has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result[.]”)). Here, Appellant's conduct unquestionably establishes that his specific purpose was to cause R.S. to engage in sexual conduct with him.

We conclude that the evidence is sufficient to support Appellant's conviction for the lesser-included offense of attempted sexual performance of a child, a third-degree felony offense. See Tex. Penal Code § 15.01(d) (providing that an attempt offense is one category lower than the offense attempted). We reform the judgment of conviction accordingly.

V. Conclusion

The evidence in the record is insufficient to show that R.S. “engaged in” sexual conduct. Therefore, the evidence is insufficient to support Appellant's conviction for sexual performance of a child. However, we conclude that the evidence is sufficient to support reformation of Appellant's conviction to attempted sexual performance of a child. We therefore reform Appellant's conviction and remand this case for a new punishment hearing. Accordingly, the judgment of the court of appeals is reversed and the case is remanded for proceedings consistent with this opinion.

FOOTNOTES

1.   In September 2006, Appellant rubbed the vagina of his four-year-old daughter J.R. He was sentenced to seven years’ confinement on March 6, 2009.

2.   The prior conviction is admissible character conformity evidence in the trial of certain offenses. Tex. Code Crim. Proc. art. 38.37, § 2(a)(1)(C), (b). This includes sexual performance of a child, but not non-consensual sexual assault. Id., § 2(a)(1)(D), (G). The State argued that a limiting instruction would be sufficiently curative, but the trial court disagreed.

3.   The SPA's two grounds for review are:(1) Does “inducing a child to engage in sexual conduct” for purposes of sexual performance by a child require the child's consent or some measurable degree of participation?(2) If the evidence was insufficient to prove the completed offense, did the court of appeals properly state and apply the standard for reformation to attempted sexual performance by a child?

4.   The SPA's Brief on the Merits provides the following definition: “to become involved.” SPA's Br. at 19 (quoting Webster’s New Universal Unabridged Dictionary 473 (1989)).

Finley, J., delivered the opinion of the Court in which Richardson, Newell, Keel, McClure, and Parker, JJ., joined.

Newell, J., filed a concurring opinion. Parker, J., filed a concurring opinion. Schenck, P.J., concurred. Yeary, J., filed a dissenting opinion. Walker, J., dissented.