Clark v. Texas
| Decision Date | 19 February 2014 |
| Docket Number | NO. 03-11-00085-CR,03-11-00085-CR |
| Parties | Mark A. Clark, Appellant v. The State of Texas, Appellee |
| Court | U.S. Court of Appeals — Third Circuit |
NO. CR-2010-276, HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING
A jury acquitted appellant Mark A. Clark of attempted aggravated sexual assault but convicted him of attempted sexual performance by a child and assessed punishment at seven years' imprisonment. See Tex. Penal Code §§ 43.25(b) (), 15.01 (defining criminal attempt). The State's case rested primarily on the minor complainant's1 testimony that Clark, a lawyer, had asked the complainant to model lingerie for him at his law office in exchange for money and free legal services and on extraneous-offense evidence that Clark had propositioned another young client at his law office to model lingerie for him in exchange for money. In six issues, Clark argues: (1) the evidence was insufficient to support his conviction; (2) the trial court improperly admitted the extraneous-offense evidence; and (3) the trial court improperly excluded evidence of the complainant's character. We affirm the trial court's judgment.
BACKGROUND
In June of 2009, the twelve-year-old complainant and her mother met Clark—a fifty-two-year old lawyer—seeking his legal services in regard to an outcry of sexual abuse the complainant had made against her father and grandfather. After discussing the alleged sexual abuse with Clark at his office, the complainant and her mother were preparing to leave and mentioned they were going to go to Wal-Mart next to buy the complainant something for a dollar. Clark told them they could not buy anything for a dollar and gave the complainant's mother a $100 bill wrapped around his business card.
Later that day, Clark called the complainant at home and asked if she could come to his office the next day to assist him with paperwork. The complainant's mother drove her to Clark's office the next day as planned. But after her mother left, the complainant testified that instead of giving her paperwork, Clark gave her a red plastic cup he said was filled with lemonade but that tasted like alcohol. He then, according the complainant's testimony, asked her to model lingerie for him in exchange for $1,000 and Clark not charging her mother for legal services. The complainant described the lingerie as a black see-through shirt with long sleeves that were "poofy at the end" and that Clark would have been able to see her "private parts" if she had modeled it.
The complainant additionally testified that Clark made several other inappropriate remarks to her, including asking her if she thought anything could fit in her "lower area," telling her that he had a big penis, asking her if she liked to watch pornographic movies, and asking her whether she thought it was wrong that the playboy bunnies lived with an old man. While he was speaking, the complainant testified that Clark was petting a cat on his lap and told her that he wished shewould be like the cat because it would let him pet it and pet it, but that he would stop whenever the cat wanted him to stop. After she refused to model the lingerie, the complainant testified that Clark told her to call her mother. On the way home from Clark's office, the complainant informed her mother of Clark's conduct, and they contacted the police that day.
The police searched Clark's office which was located in an old home that had been renovated into an office. In the bathroom of the office, the police found a trash can containing an empty bottle of Mike's Hard Lemonade and red plastic cups were discovered in the kitchen. In the bathroom, the police also noticed a large pull-out cabinet used as a hamper. Upon pulling the cabinet all the way out, the police discovered a secret space behind the cabinet drawer containing several plastic bags filled with multiple pieces of lingerie, magnum-sized condoms, K-Y Jelly, a six-pack of Mike's hard lemonade with one bottle missing, bottles of alcohol, and sex toys. The complainant was not able to identify the lingerie Clark allegedly showed her from the bags of lingerie discovered in the bathroom.
ATTEMPTED SEXUAL PERFORMANCE BY A CHILD
In his first two points of error, Clark contends the evidence is insufficient to support his conviction for attempted sexual performance by a child. See Tex. Penal Code §§ 15.01, 43.25(b). A person commits the offense of sexual performance by a child "if knowing the character and content thereof, he employs, authorizes, or induces a child . . . to engage in sexual conduct or a sexual performance." Id. § 43.25(b). A person commits an attempted offense, "if, with 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." Id. § 15.01(a); see also Yalch v. State,743 S.W.2d 231, 233 (Tex. Crim. App. 1988) (). Therefore, the offense of attempted sexual performance by a child is committed if: (1) the defendant; (2) with specific intent to employ, authorize, or induce a child to engage in sexual conduct or a sexual performance; (3) does an act amounting to more than mere preparation; (4) that tends but fails to effect the commission of sexual conduct or a sexual performance by a child. Tex. Penal Code §§ 15.01, 43.25(b); see also Chen v. State, 42 S.W.3d 926, 929 (Tex. Crim. App. 2001).
Clark was charged with attempted sexual performance by a child by attempting to induce the complainant to engage in sexual conduct or a sexual performance. The term "sexual performance," however, is defined as any performance that includes "sexual conduct by a child." Tex. Penal Code § 43.25(a)(1). Therefore, the charged offense required evidence that Clark attempted to induce the complainant to engage in sexual conduct. "Sexual conduct" is defined as including, among other things, "sexual contact" and "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).
Clark argues there is no evidence that he attempted to induce the complainant to engage in sexual conduct because the State did not prove the lingerie he asked the complainant to wear would have resulted in a lewd exhibition of her genitals and there was no evidence he intended the complainant to engage in sexual contact. In this case, Clark was charged with attempting to induce a child to engage in sexual conduct. Therefore, our focus is on whether Clark intended to commit the offense of sexual performance by a child, which can be inferred from his acts, words, or conduct. See Alexander v. State, 906 S.W.2d 107, 110-111 (Tex. App.—Dallas 1995, no pet.); see also Chen, 42 S.W.3d at 930 (). The complainant testified that Clark asked her to model a piece of lingerie that was "see-through" and would have revealed her "private parts." Further, the complainant testified that Clark gave her an alcoholic drink, asked her if she liked to watch pornographic movies, told her that he had a big penis, asked her if she thought anything "could fit in [her] lower area," and told her that he wished she would be like his cat who he could pet.2 We conclude that this evidence, when taken together, is sufficient to allow a rational trier of fact to find beyond a reasonable doubt that Clark intended to induce the complainant to engage in sexual conduct by either sexual contact or a lewd exhibition of her genitals, and that he committed an act amounting to more than mere preparation that tended but failed to effect the commission of the offense. See Alexander, 906 S.W.2d at 110-111 ().
Clark additionally argues the evidence is insufficient to uphold his conviction because there is no evidence he attempted to induce the complaint to engage in a "performance." The statute, however, "criminalizes the inducement of a child's sexual conduct regardless of whether it amounts to a sexual performance." Dornbusch v. State, 156 S.W.3d 859, 870 (Tex. App.—Corpus Christi2005, pet. ref'd); see also Summers v. State, 845 S.W.2d 440, 442 (Tex. App.—Eastland 1992, no pet.). As we have already determined there was sufficient evidence Clark attempted to induce the complainant to engage in sexual conduct, the State is not required to further prove an attempted sexual performance. See Dornbusch, 156 S.W.3d at 870; Summers, 845 S.W.2d at 442.
Regardless, we conclude there is also sufficient evidence that Clark attempted to induce the complainant to engage in a sexual performance. "Sexual performance" means any "performance or part thereof that includes sexual conduct by a child." Tex. Penal Code § 43.25(a)(1). "Performance" is defined as "any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons." Id. § 43.25(a)(3). Under the statute, the term "sexual performance" includes non-pornographic and non-commercial sexual conduct by children, and recording the sexual performance on film or other media is not an element of the offense. See Dornbusch, 156 S.W.3d at 871; see also Emenhiser v. State, 196 S.W.3d 915, 930 (Tex. App.—Fort Worth 2006, pet. ref'd). Further, nothing in the definition of performance "suggests that the exhibition induced by the accused must be for the benefit of a third person as opposed to the accused himself." Emenhiser, 196 S.W.3d at 930. Rather, the definition specifically provides that the...
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