Smith v. State

• Decision Date: 10 June 2021
• Docket Number: No. 11-19-00222-CR,11-19-00222-CR
• Parties: Jacob Adam Joseph SMITH, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

631 S.W.3d 484

Jacob Adam Joseph SMITH, Appellant

v.The STATE of Texas, Appellee

No. 11-19-00222-CR

Court of Appeals of Texas, Eastland.

Opinion filed June 10, 2021

Eric Kalenak, Assistant, Laura Nodolf, District Attorney, Susannah E. Prucka, Assistant, for Appellee.

Mark H. Dettman, Midland, for Appellant.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

W. STACY TROTTER, JUSTICE

The grand jury indicted Appellant, Jacob Adam Joseph Smith, for the second-degree felony offense of online solicitation of a minor whom he believed to be younger than fourteen years of age at the time of the commission of the offense. See TEX. PENAL CODE § 33.021(c), (f) (West 2016). The jury convicted Appellant of the charged offense and assessed his punishment at ten years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine. Pursuant to the jury's recommendation, Appellant's sentence and fine were suspended. The trial court sentenced Appellant accordingly and placed Appellant on community supervision for a period of ten years.

In four issues on appeal, Appellant asserts that (1) the evidence is insufficient to support his conviction, (2) the trial court erred when it overruled Appellant's Confrontation Clause objection regarding Appellant's videotaped interview, (3) the trial court erred when it refused to submit Appellant's proposed jury instruction, and (4) it was error for the district clerk to assess court-appointed attorney's fees and court reporter's fees against Appellant, who had been adjudged indigent by the trial court. We modify and affirm.

I. Factual Background

During the summer of 2017, as part of a larger operation to combat crimes against children and human trafficking, state and federal law enforcement agents created an online post on Craigslist in which law enforcement officers posed as minors. The advertisement was posted in the "casual encounters" section in the "women for men" category.

Law enforcement conducted the operation from an apartment in Midland; there, officers would chat online with people who responded to the post and who indicated that they were willing to have sexual contact with a minor. Appellant responded to the post on a Friday night around 10:00 p.m. and exchanged several text messages with Homeland Security Investigations Agent Daniel Yon, who was posing as a thirteen-year-old girl.

During their text message conversation, Appellant asked, "How old are you?" Agent Yon responded, "[I'm] almost 14 but ppl say [I] look older." A few messages later, Appellant asked, "Do you wanna come over and ta'll [sic] and drink maybe have sex? Just see where it goes." Agent Yon responded, "I wanna get to meet u first .. lol" and subsequently asked, "ur ok with me being younger?" Appellant replied, "Yes I'm okay with it. But how old are you?" Agent Yon then texted, "[I] told u [I'm] almost 14 but ppl say I look older." Finally, Appellant messaged, "Okay send me an address and I will swing by and pick you up."

Appellant and Agent Yon continued to exchange text messages and coordinated Appellant's arrival at the apartment where law enforcement officers were waiting. Appellant arrived at around 11:00 p.m. Before entering the apartment, he texted once more, asking, "I'm at the door how do I know this isn't a trap though?" He then entered the apartment and was immediately arrested. After Appellant was arrested, law enforcement officers sent another text message to the phone number that Agent Yon had been exchanging messages with. The text message confirmed that the phone number was associated with the phone in Appellant's possession when he was arrested.

Appellant was Mirandized¹ and willingly and voluntarily spoke with two officers at the apartment—Agent Yon and Texas Ranger Cody Allen. Appellant denied receiving the first text message regarding the age of the minor that he intended to meet. Appellant stated that, after he received the second age-related text message, he was no longer interested in sexual contact and that he went to the apartment simply for some company. During the interview, Appellant gave Ranger Allen the passcode to unlock his phone and consented to Ranger Allen reading the saved text messages on the phone. Ranger Allen testified that, although he reviewed the text message string conversation on Appellant's phone between Appellant and Agent Yon, he did not see the first message that mentioned the age of the minor that Appellant had arranged to meet.

At trial, the State offered the recording of the videotaped interview between Appellant, Agent Yon, and Ranger Allen into evidence. Appellant's trial counsel raised a Confrontation Clause objection to the recording on the basis that the recording contained statements made by Agent Yon, who, prior to trial, had been transferred to another state and was unavailable to testify. After a bench conference outside the presence of the jury, the trial court admitted the recording on the basis that Agent Yon's statements provided "context" to the statements Appellant had made during the interview. The State also redacted the audio of any portion of the videotaped interview in which Ranger Allen was not present. Prior to the recording's publication to the jury, the trial court instructed the jury that any statements made by Agent Yon were not to be considered for the truth of the matter asserted but could only be considered to show context or background information for the statements Appellant made during the recording. Appellant's trial counsel requested that the trial court include a similar instruction in its charge, but the trial court refused. The jury convicted Appellant of the charged offense, and this appeal followed.

II. Analysis

A. Sufficiency of the Evidence

In his first issue, Appellant contends that the evidence is insufficient to support his conviction for the charged offense. Specifically, Appellant asserts that the State was unable to prove that he received the first text message from Agent Yon stating that his potential victim was thirteen years old. According to Appellant, this lack of receipt shows that, at the time he sent the text message whereby he offered to have sexual contact with the minor, he did not know that he had communicated with a minor. Appellant also contends that the evidence is insufficient to show that he had the specific intent to engage in sexual contact with a minor younger than fourteen because, in addition to not knowing that the recipient of his text messages was only thirteen, his text message stated, "maybe have sex." Appellant contends that this qualification of "maybe" rendered the message insufficient, standing alone, to prove the required specific intent.

The State concedes that it could neither prove nor disprove that Appellant received the first age-related text message; however, the State asserts that, even if Appellant had not received the first age-related text message, it is undisputed that he received the second age-related text message. Further, the State argues that the circumstantial evidence surrounding Appellant's online interactions with Agent Yon are sufficient to support his conviction for the charged offense of online solicitation of a minor child under the age of fourteen. We agree with the State.

We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ; Polk v. State , 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review 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 charged offense beyond a reasonable doubt. Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

When conducting a sufficiency review, we consider all of the evidence admitted at trial, including improperly admitted evidence, and defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Winfrey v. State , 393 S.W.3d 763, 767–68 (Tex. Crim. App. 2013) ; Brooks , 323 S.W.3d at 899 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This deference accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; Clayton , 235 S.W.3d at 778. We may not reevaluate the weight and credibility of the evidence to substitute our judgment for that of the factfinder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Therefore, if the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination.

Jackson , 443 U.S. at 326, 99 S.Ct. 2781 ; Merritt v. State , 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012) ; Clayton , 235 S.W.3d at 778.

Because the standard of review is the same, we treat direct and circumstantial evidence equally. Isassi , 330 S.W.3d at 638 ; Clayton , 235 S.W.3d at 778 ; Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and can, without more, be sufficient to establish his guilt. Carrizales v. State , 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper , 214 S.W.3d at 13 ). A guilty verdict does not require that every fact must directly and independently prove a defendant's guilt. Hooper , 214 S.W.3d at 13. Instead, the cumulative force of all incriminating circumstances is sufficient to support the conviction. Id. Therefore, in evaluating the sufficiency of the evidence, we must...