-The appellant was convicted in a bench trial of attempted sexual performance by a child, and he was sentenced to seven years confinement and a fine of $1000. See Tex. Pen. Code Ann. §§ 15.01, 43.25(b).
-Imposition of the seven years confinement was suspended, and appellant was placed on seven years community supervision. The court of appeals affirmed the conviction.
-The evidence that was presented at appellant’s bench trial showed that on December 13, 1996, appellant placed an advertisement on an America Online computer bulletin board stating, “A nude dancer needed for discreet pleasure. I am generous and rich. You must be very attractive and young.” -A Dallas Police Officer working on a specialized crime task involving child exploitation, discovered the advertisement.
-He e-mailed appellant back representing himself as J. Cirello and asking appellant “how young of a nude dancer [he was] looking for.”
-The appellant replied, “I will say between 20 and 30 or as long as you have a young looking face and tender body.”
-Detective Nelson responded that there was no one in that age range and signed the email “J. Cirello.”
-The appellant e-mailed again and asked, “What age are you in?” Posing as J. Cirello,
-Detective Nelson wrote, “If you don’t care about age I am 13, looking for independence. What are you looking for?”
-Appellant replied that he was looking for a girl who “dares to be nude and watched by me while I am masturbating.” He asked to “get together” and requested her name and location.
-Detective Nelson e-mailed, stating “My name is Julie.” He also wrote that “Julie” had never seen a man masturbate and did not want “her” parents to find out.
Analysis:During the next few e-mails, appellant asked where Julie lived and when they could get together. On February 6, 1997, appellant and “Julie” began their plan to meet. Appellant assured “Julie” that he would bring protection and lubrication, so that he would not hurt her or get her pregnant. The Garland Police Department set up surveillance at the Best Western.
-Appellant arrived at the motel in a champagne colored minivan. He initially sat in the minivan for about ten minutes.
-Eventually, he went in the lobby, stayed for two minutes, then came back out to his vehicle. When he got back into his minivan, the police arrested him.
-Appellant had a package of condoms and a tube of KY Jelly on the console of his minivan. He later gave a voluntary statement in which he admitted that he was going to show a girl how to have sex.
-Detective Nelson admitted on cross-examination that he was a white male and had never been known by the name of Julie Cirello. “Julie” did not exist, and he was the author of the e-mails signed by “Julie.”
-Appellant asked the trial court to render a verdict of “not guilty” because the State failed to prove the elements contained in the indictment.
-Specifically, appellant argued that the State failed to prove he attempted to induce the named complainant, Julie Cirello, to commit any acts alleged in the indictment. Additionally, he asserted that the State failed to prove that Julie Cirello was a person under the age of 18 and that the proof presented at trial was a fatal variance with the allegation in the indictment.
The trial court found appellant guilty beyond a reasonable doubt as charged in the indictment.
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