Maloney v. State
| Decision Date | 28 May 2009 |
| Docket Number | No. 01-07-00771-CR.,01-07-00771-CR. |
| Citation | 294 S.W.3d 613 |
| Parties | Stacy Michael MALONEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Keisha L. Smith, Houston, TX, for Appellant.
Rebecca Klaren, Assistant Criminal District Attorney, Kurt Sistrunk, Criminal District Attorney, Galveston County, Galveston, TX, for Appellee.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
A jury found appellant, Stacy Michael Maloney, guilty of online solicitation of a minor.1 The jury assessed punishment at 4 years and 113 days in prison and imposed a $113 fine. In three issues, appellant (1) challenges the legal and factual sufficiency of the evidence supporting his conviction; (2) asserts that the trial court erred by overruling appellant's challenges for cause to two venire members; and (3) questions the constitutionality of the statute making online solicitation of a minor a criminal offense.
We affirm.
On October 5, 2005, appellant entered an Internet romance chat room under the screen name "Entendres." Appellant initiated an online conversation with "Brandytx132004" (hereafter "Brandy"). Appellant approached Brandy in the chat room by asking, "Do you like older?" Brandy replied, Appellant responded, "Great," and asked whether it was "okay" that he was a 47-year-old white male. Brandy answered, "Hi. I'm 13 . . . is that ok?" Appellant replied, Appellant then directed Brandy to his online photograph and said, "You know how much daddy loves you."
Unknown to appellant, Brandy was actually an online persona created by Detective Roger Williamson of the Kemah City Police Department. Detective Williamson worked as part of a task force investigating Internet child predators and had entered the romance chat room that morning to portray 13-year-old Brandy.
Later that day, the conversation between appellant and Brandy turned sexual in nature. Appellant told Brandy that he wanted to kiss her and that he could "teach" her. Appellant said, "[T]ouching is good always." Brandy asked, "Where?" Appellant responded,
Appellant also told Brandy that he wanted to "get together" with her. Brandy said that she lived in Kemah, Texas, and appellant told her that he lived in San Antonio. Appellant and Brandy agreed that they could meet in a park near Brandy's home.
Appellant asked Brandy to send a photo of herself. Detective Williamson emailed a picture of his wife taken when she was 13 in the mid-1980's. After receiving the photo, appellant told Brandy that she looked "grown up" and "seem[ed] more than 13." Brandy again asked if appellant whether it was "ok" that she was only 13 years old. Appellant assured her that it was, and told her "I like you so much now and we will have fun I know."
Between October 5, 2005 and October 17, 2005, Brandy and appellant chatted for a total of 17 hours. As the two chatted, the conversation became progressively more sexually explicit. Appellant said that he wanted to be alone with Brandy in a motel room. When she asked what they would do there, appellant said they could kiss and "make out." The conversation progressed until appellant expressly told Brandy that he wanted to have sex with her. Brandy said that she did not want to get pregnant. Appellant assured Brandy that they would be careful and that he would bring condoms. Brandy told appellant that she was a virgin and expressed concern that having sex would hurt. Appellant replied that it would hurt the first time but assured Brandy that she would "feel really good afterward."
Appellant and Brandy also spoke twice on the telephone. In the phone calls, twenty-eight-year old Kemah police officer Erica Yates portrayed Brandy. During the calls, appellant expressed his desire to have sex with Brandy at a motel. After the first telephone conversation, appellant told Brandy online that she seemed older than 13.
Throughout all conversations, appellant continually referenced his desire that he and Brandy pretend that they were father and daughter. Appellant referred to himself as "Daddy," repeatedly asked Brandy if she wanted to call him "Daddy," and referred to Brandy as "baby girl."
During the online conversations, Brandy expressed concern several times that appellant might find her too young because she was only 13 years old. Appellant always indicated that he was pleased with her age and told her that her young age would make their bond and attachment stronger. Appellant commented that her age would be "a plus" with regard to pretending they were father and daughter. Appellant explained that her age was "perfect" because no one would suspect when they were out together that they were not father and daughter.
Brandy also continually expressed concern that her mom would "kill" her if she found out about appellant. Appellant also expressed concern regarding Brandy's mother discovering their relationship. Appellant told Brandy that he would also be in "trouble" if her mother discovered what they were doing. Brandy asked why appellant would be in trouble. Appellant responded that it was because she was a minor and that her mom might "not understand."
On October 18, 2005, appellant made the 200-mile drive from San Antonio to a Kemah park to pick up Brandy. When he arrived at the park, appellant was arrested by Officer Williamson. In appellant's truck the police found a box of condoms, a prescription bottle containing Viagra, and computer printouts with information regarding two local motels that appellant and Brandy had discussed.
Appellant was charged with the offense of online solicitation of a minor. At trial, appellant did not deny that he went to Kemah to have sex with Brandy. Instead, appellant defended against the charge by arguing that he believed that Brandy was an adult woman who was engaging in role-playing with him. More precisely, appellant asserted that he believed that Brandy, an adult woman, was pretending to be a 13-year-old girl and that he was pretending to be her "daddy."
The jury found appellant guilty of online solicitation of a minor. This appeal followed.
Appellant's first issue challenges the legal and factual sufficiency of the evidence to support his conviction.
The indictment charged appellant with online solicitation of a minor pursuant to Penal Code section 33.021(c). In October 2005, when Brandy and appellant corresponded, Penal Code section 33.021(c) provided that a person committed the offense of online solicitation of a minor if, inter alia, the person, over the Internet or by electronic mail or a commercial online service, knowingly solicited a minor to meet another person, including the actor, with the intent that the minor engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007) . Subsection (a) defined the term "minor" to mean "an individual who represents himself or herself to be younger than 17 years of age" or "an individual whom the actor believes to be younger than 17 years of age." Id. .
A two-paragraph indictment charged appellant with knowingly soliciting a minor to engage in sexual contact. In one paragraph, the term "minor" was defined as "an individual who represented to the Defendant to be younger than 17 years of age." In the second paragraph, "minor" was defined as "an individual whom the actor believed to be younger than 17 years of age."
To support his legal and factual sufficiency challenges, appellant contends that "the evidence fails to sufficiently establish that appellant knowingly (1) solicited a person whom he believed to be younger than 17 years of age or (2) solicited a person who represented herself to be younger than 17 years of age." Appellant asserts that "the evidence reveals appellant believed Brandy to be an adult, merely acting the role of a thirteen-year-old girl." Appellant further asserts that "although [Detective] Williamson attempted to deceive appellant into believing `Brandy' was an actual thirteen-year-old girl, the manner in which he represented `Brandy' suggested that she was an adult playing the role of a teenage girl."
When reviewing the legal sufficiency of the evidence to support a conviction, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). In conducting our review, we assess all of the evidence in the light most favorable to the prosecution. Id. (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). We must presume that the trier of fact resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.App.2007) (citing Jackson, 443 U.S. at 326, 99 S.Ct. at 2793).
In addition to the testimony of Detective Williamson, the State admitted printouts of the online conversations between appellant and Brandy into evidence. The evidence, when viewed in the light most favorable to the prosecution, shows that Brandy represented to appellant that she was 13 years old on numerous occasions during their online chats. When appellant initiated contact with her, Brandy immediately informed appellant that she was 13 years old. Throughout their online conversations, Brandy repeatedly expressed concern that appellant may have a problem with her being only 13 years old. The evidence showed that, in turn, ...
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