                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-18-00171-CR


                          MICHAEL DALE REIGHLEY, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 413th District Court
                                    Johnson County, Texas1
               Trial Court No. F49732, Honorable William C. Bosworth, Presiding

                                          August 13, 2019

                                             OPINION
                        Before CAMPBELL and PIRTLE and PARKER, JJ.


        Appellant, Michael Dale Reighley, appeals his convictions for one count of online

solicitation of a minor and two counts of criminal solicitation of a minor, and resulting jury-

imposed sentences of twenty years’ incarceration and a $10,000 fine for the online




         1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to

this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a
conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant issue, this
appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
solicitation offense and ten years’ incarceration and $10,000 fines for the criminal

solicitation offenses. We affirm the trial court’s judgment.


                               Factual and Procedural Background


        On July 15, 2015, the Texas Attorney General’s Office conducted a sting operation

focusing on online solicitation of minors in Cleburne, Texas. Appellant, who was thirty-

seven years old on July 15, 2015, placed an ad in the “personals/casual encounters”

section on the Craigslist website. In the ad, appellant stated that he wanted to meet a

female who was either “much younger (than 20 years of age)” or “much older (than 50

years of age)” for the purpose of, inter alia, performing oral sex on anyone that responded

to his ad.     Don Adams, SWAT Commander for the Burleson Police Department,

responded to appellant’s ad using the Craigslist profile of “Brandi Jasper.”                     In his

response, Adams identified Brandi as a fourteen-year-old girl. After a series of messages

in which appellant repeatedly propositioned Brandi to engage in sexual acts with him, 2

appellant arranged to meet Brandi at a designated location in Burleson. When appellant

arrived at the arranged meeting location, he was placed under arrest.


        Appellant was subsequently indicted for the solicitation offenses.                       During

appellant’s trial, police officers testified as to the events described above. In investigating

the case, Sheriff Andrew Riggs searched appellant’s cell phone as authorized by a search

warrant. At trial and over appellant’s objection, Riggs testified to finding a text message

conversation in which appellant indicated that he had previously performed oral sex on a




        2Specifically, appellant indicated that he wanted to perform oral sex on Brandi and penetrate her
vagina with his fingers. He also indicated that he wished to have Brandi perform oral sex on him. From
the context, it is apparent that these acts formed the purpose for which appellant went to meet Brandi.

                                                   2
fourteen-year-old girl. During appellant’s case-in-chief, he testified that he believed that

Brandi was not a minor but that she was engaging in an “age-play scenario.” Following

appellant’s testimony, appellant offered the testimony of four opinion witnesses. During

a hearing held outside the presence of the jury, the trial court excluded the testimony of

all four witnesses. At the close of testimony, the jury returned a verdict finding appellant

guilty of all three charged offenses. After a punishment hearing, the jury sentenced

appellant to twenty years’ incarceration for the online solicitation offense and ten years

for each of the criminal solicitation offenses, and a $10,000 fine for all three offenses.

Appellant timely filed the instant appeal.


       By his appeal, appellant presents seven issues.        Appellant’s first four issues

challenge the trial court’s exclusion of four witnesses that appellant offered to testify as

to their opinion regarding appellant’s character. Appellant’s fifth issue contends that the

trial court erred by admitting evidence of appellant’s bad character for the purpose of

showing appellant acted in accordance with that character on the occasion in question.

Appellant’s sixth and seventh issues contend that the trial court erred in refusing to find

subsection (d)(3) of Texas Penal Code section 33.021 unconstitutional because it

improperly removes the State’s burden to prove appellant’s intent and deprived appellant

of his right to present a defense that appellant was engaged in a fantasy.


Issues One through Four: Exclusion of Good Character Witnesses


       Appellant contends, by his first four issues, that the trial court erred in excluding

testimony regarding appellant’s good character during the guilt-innocence phase of trial.




                                             3
       In a hearing outside the presence of the jury, appellant initially called Phillip

Nottingham. Nottingham testified that he had known appellant since they were both

around thirteen years old. They lost touch in early adulthood but had gotten back in touch

between five to ten years before trial. After the two reconnected, they were in contact

around once a month and often only through phone calls. Nottingham testified that he

did not believe that appellant had the traits of a pedophile, never saw or heard appellant

speak inappropriately about young girls, and has trusted and does trust appellant to be

around Nottingham’s minor daughters. The State objected to Nottingham’s testimony on

the bases that he was not qualified as an expert and such testimony regarding specific

acts of good character is impermissible during the guilt-innocence phase of trial.

Appellant responded that he believed that the State had opened the door to this testimony

and that it is relevant rebuttal evidence relating to appellant’s character. The trial court

sustained the State’s objections, specifically indicating that it thought that this testimony

was appropriate only for punishment. Upon appellant’s request, the trial court allowed

the testimony to serve as an offer of proof.


       Immediately after Nottingham was dismissed, appellant called Dayna Ly,

appellant’s fiancee. Ly testified that, in the two and a half years she had known appellant,

she had never seen him act inappropriately or heard him state that he desired to be sexual

with young girls. Ly also testified that she believed appellant to be of good character.

The State again objected that the testimony was an impermissible attempt to offer specific

acts of good character. Appellant responded, again contending that the State had opened

the door. The trial court impliedly sustained the objection but accepted the testimony as

an offer of proof.



                                               4
       Appellant then called Haileigh Dodd, the daughter of a former girlfriend of

appellant. Dodd testified that appellant and her mother lived together when she was ten

or eleven years old and that appellant did not touch or talk to her inappropriately and that

he cared for her like she was his daughter. The State again objected that the testimony

was simply identifying specific acts of good character.       Appellant voiced the same

response. The trial court again ruled that the testimony was not admissible during guilt-

innocence.


       Finally, appellant prepared to offer the testimony of appellant’s daughter.

However, before he could do so, the trial court asked if this testimony was going to be

“basically that same thing, character.” Appellant responded in the affirmative. Before any

of the witness’s testimony was presented, the trial court stated, “But if your line of

questioning is the same line of questioning as the last two witnesses, then I’d reserve her

for the . . . Punishment Phase.” Appellant accepted this statement without requesting an

opportunity to make an offer of proof.


       We review the trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). We

will not disturb the trial court’s ruling if the ruling is within the zone of reasonable

disagreement. Id.


       Generally, character evidence is not admissible to show that a person acted in

conformity with that character trait on a particular occasion. TEX. R. EVID. 404(a); Melgar

v. State, 236 S.W.3d 302, 306 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). However,

a defendant in a criminal case “is permitted to introduce evidence of a specific good-

character trait to show that it is improbable that he committed the charged offense, when

                                             5
that character trait is relevant to the offense.” Melgar, 236 S.W.3d at 306-07; Moody v.

State, Nos. 01-05-00395-CR, 01-05-00396-CR, 01-05-00397-CR, 01-05-00398-CR,

2006 Tex. App. LEXIS 9788, at *8 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (mem.

op., not designated for publication). A character trait is relevant if it is “one that relates to

a trait involved in the offense charged or a defense raised.” Melgar, 236 S.W.3d at 307

(quoting Spector v. State, 746 S.W.2d 946, 950 (Tex. App.—Austin 1988, pet. ref’d)). If

evidence of a person’s character or character trait is admissible, proof may be made

through reputation or opinion testimony. TEX. R. EVID. 405(a); Moody, 2006 Tex. App.

LEXIS 9788, at *8. But, specific instances of conduct may not be admitted to establish

an inference that the accused did or did not commit the charged offense. Valdez v. State,

2 S.W.3d 518, 519 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (citing Schmidt v.

State, 449 S.W.2d 39, 40 (Tex. Crim. App. 1969)).


       In a prosecution for a crime of violence, the defendant’s character for peacefulness

is relevant because evidence establishing that a defendant possesses a peaceful

character makes it less likely that he committed the crime charged. Melgar, 236 S.W.3d

at 307. A defendant’s reputation for peacefulness or non-aggressive behavior is an

appropriate inquiry in a murder prosecution. Valdez, 2 S.W.3d at 520. Under Rule

404(a)(1)(A), a defendant charged with sexual assault of a child is entitled to offer

evidence of his good character for “moral and safe relations with small children or young

girls.” Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002). However, the status

of being a murderer or a pedophile is not a “character trait.” Id. at 882 n.2.


       Our sister courts have concluded that the type of evidence offered by appellant in

this case is not admissible. In Valdez, the court refused to allow the defendant’s brother


                                               6
and neighbor to testify that appellant had a good reputation in the community for being “a

nonpedophile” because “unlike a person’s reputation for the moral treatment of children,

being a ‘nonpedophile’ is not evidence of a person’s character or character trait.” Valdez,

2 S.W.3d at 519-20. In Hernandez, the court rejected testimony regarding whether the

defendant was the “kind of person” who would molest children because, rather than

showing a good character trait, such testimony attempts to show that appellant “was not

known to have committed the type of crime for which he was charged in the past.”

Hernandez v. State, No. 05-13-00202-CR, 2014 Tex. App. LEXIS 162, at *8-9 (Tex.

App.—Dallas Jan. 7, 2014, no pet.) (mem. op., not designated for publication) (quoting

Valdez, 2 S.W.3d at 520). In Fernandez, the court upheld the trial court’s sustaining of

the State’s objections to questions asking whether the defendant had ever touched a

different child inappropriately and whether a witness would “be afraid to leave your

daughter with” the defendant. Fernandez v. State, No. 14-09-00369-CR, 2010 Tex. App.

LEXIS 2628, at *14-18 (Tex. App.—Houston [14th Dist.] Apr. 15, 2010, no pet.) (mem.

op., not designated for publication).     These cases establish that testimony of a

defendant’s character that is derived from specific instances of conduct is inadmissible to

show an inference that the defendant did not commit the offense for which he is charged.


       In the present case, appellant sought to elicit testimony from Nottingham that

appellant did not exhibit the “traits of being a pedophile,” Nottingham had not seen or

heard appellant behave inappropriately toward young girls, and that Nottingham would

trust appellant around his daughters. This is the same sort of testimony that was deemed

inappropriate in Fernandez and Valdez. See Fernandez, 2010 Tex. App. LEXIS 2628, at

*14-18; Valdez, 2 S.W.3d at 520. Appellant then sought to admit testimony from Ly that



                                            7
she had never seen appellant act inappropriately toward young girls and that he had never

expressed a desire to be sexual with young girls. This is the same type of testimony that

was found to be inappropriate in Hernandez. See Hernandez, 2014 Tex. App. LEXIS

162, at *8-9. Appellant also offered the testimony of Dodd that appellant did not act

inappropriately toward her when she was a young girl. This is the same sort of testimony

that was determined to be inappropriate in Fernandez. See Fernandez, 2010 Tex. App.

LEXIS 2628, at *14-18. Finally, appellant attempted to call his daughter. However, the

substance of her testimony was not offered as part of appellant’s offer of proof and, as

such, any error in the trial court’s exclusion of her testimony was not preserved. 3 Mays

v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009).


        Because the testimony of the first three good-character witnesses offered by

appellant was improper character evidence derived from specific instances of appellant’s

prior conduct, the trial court did not abuse its discretion in excluding the testimony.

Appellant’s first three issues are, therefore, overruled. Because the fourth good-character

witness’s testimony was not properly preserved, any error in the trial court’s ruling is not

properly presented to this Court. Appellant’s fourth issue is overruled.


Appellant’s Fifth Issue: Character Conformity Evidence


        Appellant’s fifth issue contends that the trial court erred by admitting evidence of

appellant’s bad character for the purpose of showing appellant acted in accordance with

that character on the occasion in question.                 Specifically, appellant objects to the



        3 While appellant’s objection to the exclusion of this testimony was not properly preserved for our

review, appellant did indicate that his daughter’s testimony would have been consistent with the line of
questioning made to the two prior witnesses and we have determined that those lines of questioning are
inappropriate.

                                                    8
admission of testimony from Andrew Riggs, an investigator with the Johnson County

Sheriff’s Office, relating that a manual investigation of appellant’s phone uncovered a text

message conversation in which appellant stated that he had previously performed oral

sex on a fourteen-year-old girl.           Appellant objected and argues on appeal that the

testimony violates Texas Rules of Evidence 403 and 404(b).4


        As above, the applicable standard of review for the admission or exclusion of

evidence is abuse of discretion. Harris v. State, 152 S.W.3d 786, 793 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d). This means that we will uphold the trial court’s ruling

so long as it falls within the zone of reasonable disagreement. Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). This standard applies in the same

manner in the context of the admission or exclusion of extraneous offense evidence and

an appellate court “owes no less deference to the trial judge in making this decision than

it affords him in making any other relevancy determination.” Moses v. State, 105 S.W.3d

622, 627 (Tex. Crim. App. 2003). A court of appeals cannot simply substitute its own

decision for the trial court’s. Id.


        Under Texas Rule of Evidence 401, evidence is relevant if it makes the existence

of a fact of consequence more or less probable than it would be without the evidence.

TEX. R. EVID. 401; Moses, 105 S.W.3d at 626. While relevant evidence is generally

admissible, see TEX. R. EVID. 402, that is not always the case. Moses, 105 S.W.3d at

626.



         4 Appellant timely objected to each instance during which Riggs testified about the text message

conversation. However, the trial court denied appellant’s request for a running objection without explanation
and, at one point, stated that “[t]he evidence has already come in so the objection is untimely.” Our review
of the record reflects that appellant either timely objected to the admission of this evidence or the need for
a timely objection was obviated by the trial court’s implied ruling. See TEX. R. APP. P. 33.1.

                                                      9
       One exception can be found in Rule 404(b). Because a defendant should be tried

only for the crime he is charged with committing and not for having criminal propensities,

extraneous offense evidence is generally inadmissible. Moses, 105 S.W.2d at 626. Rule

404(b) prohibits the use of evidence of a crime, wrong, or other act to prove a person’s

bad character and that, on a particular occasion, the person acted in accordance with that

character. TEX. R. EVID. 404(b)(1). However, the Rule allows evidence of other crimes,

wrongs, or acts if the evidence has relevance apart from character conformity. TEX. R.

EVID. 404(b)(2); Moses, 105 S.W.3d at 626. Some examples of relevance apart from

character conformity include intent, absence of mistake, or lack of accident. TEX. R. EVID.

404(b)(2). Uses such as mistake and accident are admissible in rebuttal of a defensive

theory. Moses, 105 S.W.2d at 626.


       Another exception to the general admissibility of relevant evidence is found in Rule

403. Rule 403 provides that, “The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.

EVID. 403. Rule 403 requires the exclusion of evidence “only when there exists a clear

disparity between the degree of prejudice of the offered evidence and its probative value.”

Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996) (quoting Joiner v. State, 825

S.W.2d 701, 708 (Tex. Crim. App. 1992)). Under Rule 403, the trial court is to consider

several relevant factors, including:


       1. how compellingly evidence of the extraneous offense serves to make a
          fact of consequence more or less probable;
       2. the extraneous offense’s potential to impress the jury in some irrational
          but indelible way;


                                             10
       3. the trial time that the proponent will require to develop evidence of the
          extraneous misconduct; and
       4. the proponent’s need for the extraneous transaction evidence.


Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002) (quoting Lane v. State, 933

S.W.2d 504, 520 (Tex. Crim. App. 1996)).


       Appellant argues that none of the Rule 404(b) exceptions apply to Riggs’s

testimony and that it was premature as rebuttal evidence since appellant had not yet put

intent, mistake, or accident in issue. However, during appellant’s opening statement,

appellant’s counsel stated that appellant did not intend to meet and have sexual contact

with a fourteen-year-old girl and that appellant believed that he was communicating with

an adult who was role-playing as an underage girl. A defendant can raise defensive

issues in his opening statement and, when he does so, extraneous acts evidence that

rebuts those defensive theories may be admissible under the exceptions identified in Rule

404(b)(2). Powell v. State, 63 S.W.3d 435, 439-440 (Tex. Crim. App. 2001). Here, the

State specified that Riggs’s testimony was offered to establish appellant’s intent, absence

of mistake, and lack of accident. We conclude that each of these purposes for admission

of the evidence was implicated by appellant’s opening statement and, therefore, the trial

court did not abuse its discretion in admitting the evidence over appellant’s objection.


       However, a determination that extraneous act evidence is admissible as an

exception to Rule 404(b)’s prohibition does not end the inquiry. Appellant contends that

Riggs’s testimony should have been excluded under Rule 403. However, in his appellate

brief, appellant does not explain how the probative value of Riggs’s testimony was

substantially outweighed by the danger of unfair prejudice. Rather, appellant indicates


                                            11
that he preserved the issue by way of timely objection and that the trial court was obligated

to articulate its basis for admission of the evidence. While a trial court’s on-record

articulation of its basis for admitting evidence under Rule 403 would be helpful, it is not

required. Grider v. State, 69 S.W.3d 681, 688 (Tex. App.—Texarkana 2002, no pet.)

(citing Montgomery, 810 S.W.2d at 397).


       We conclude that the trial court did not abuse its discretion in admitting Riggs’s

testimony over appellant’s Rule 403 objection. The evidence of a text conversation that

occurred two days prior to the date of appellant’s attempted meeting with Brandi in which

appellant bragged that he had previously performed oral sex on a fourteen-year-old is

compelling evidence of appellant’s intent. Because the testimony was presented without

any further elaboration, it was unlikely to have impressed the jury in an irrational yet

indelible way. The evidence was developed very quickly with Riggs essentially only

testifying that appellant “performed oral sex on the 14-year-old girl but did not penetrate

her vagina.” No additional information was provided regarding the contents of the text

message conversation.       Finally, this evidence was needed by the State to rebut

appellant’s primary defensive theory that, at the time he solicited the meeting with Brandi,

he did not intend to have sexual contact with her. We are to reverse the trial court’s ruling

under Rule 403 “rarely and only after a clear abuse of discretion.” Montgomery, 810

S.W.2d at 392. In this case, we conclude that the trial court did not abuse its discretion

in admitting Riggs’s testimony over appellant’s Rule 403 objection.


       For the foregoing reasons, we overrule appellant’s fifth issue.




                                             12
Issues Six and Seven: Anti-Defensive Provisions


        By his sixth and seventh issues, appellant contends that the trial court erred in

refusing to find that subsection (d) of section 33.021 of the Texas Penal Code is

unconstitutional because it removes the State’s burden to prove the defendant’s intent

and it deprives defendants of the right to present a defense based on fantasy. Appellant’s

issues essentially argue that subsections (c) and (d) of section 33.021 are facially

unconstitutional because it is inconsistent for subsection (c) to require that the solicitation

occur with the actor’s “intent that the minor will engage in sexual contact . . . with the actor

or another person” while also providing that it is not a defense that “the actor was engaged

in a fantasy at the time of commission of the offense.” Act of May 25, 2005, 79th Leg.,

R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050.5


        The constitutionality of a statute is a question of law that we review de novo. Ex

parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We begin with the presumption that

the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id.

at 14-15. The burden to show that a statute is unconstitutional is on the party challenging

the statute. Id. at 15. When addressing a facial challenge, the challenger must show that

the statute operates unconstitutionally in all possible circumstances. State v. Rosseau,

396 S.W.3d 550, 557 (Tex. Crim. App. 2013). In a facial challenge, we are to consider

the statute only as it is written and not how it operates in practice. State ex rel. Lykos v.

Fine, 330 S.W.3d 904, 908-09 (Tex. Crim. App. 2011). It is extremely difficult to prove a



        5 The Texas Legislature amended Section 33.021 to remove subsections (d)(2) and (3). See Act

of May 22, 2015, 84th Leg., R.S., ch. 61, § 2, 2015 Tex. Gen. Laws 1036, 1036. Because appellant was
charged with committing the offense when the prior version of the law was applicable, our analysis will be
on the constitutionality of that version of the law. All subsequent references to “section 33.021,” will be to
the former version of Texas Penal Code section 33.021.

                                                     13
facial challenge to the constitutionality of a statute because we are to presume that the

law enacted by the legislature is constitutional. Id. at 909.


       The offense of online solicitation of a minor at the time applicable to the case

against appellant required the State to prove that appellant knowingly solicited, over the

internet or by other enumerated electronic means, a minor to meet another, including the

actor, with the intent that the minor will engage in some type of sexual contact with the

actor or another person. § 33.021(c). The legislature also precluded certain defenses.

Specifically, it is not a defense that “the actor was engaged in a fantasy at the time of

commission of the offense.” § 33.021(d)(3). Appellant contends that subsections (c) and

(d) contradict each other on intent and this contradiction relieves the State of its burden

to prove intent while denying appellant the opportunity to present a defense.


       In Ex parte Lo, the Court of Criminal Appeals noted that section 33.021(c) prohibits

and punishes an actor for the act of soliciting a minor online. Ex parte Lo, 424 S.W.3d at

16-17. “[I]t is the conduct of requesting a minor to engage in illegal sexual acts that is the

gravamen of the offense.” Id. (emphasis in original).


       In a case specifically addressing the anti-defensive provisions found in section

33.021(d), the San Antonio Court of Appeals concluded that these anti-defensive

provisions do not remove the State’s obligation to prove the defendant’s intent nor do they

prohibit the defendant from presenting a defense. After discussing the Court of Criminal

Appeals’ identification in Ex parte Lo that it is the conduct of soliciting a minor that is made

criminal by the statute, the San Antonio court reasoned that,


       “[T]he crime of solicitation of a minor on the internet is complete at the time
       of the internet solicitation, rather than at some later time if and when the

                                              14
       actor actually meets the child.” [Ex parte Lo, 424 S.W.3d at 23.] The crime
       of soliciting a minor under section 33.021(c) is committed, and is completed,
       at the time of the request, i.e., the solicitation. Id. The requisite intent arises
       within the conduct of soliciting the minor, and must exist at the time of the
       prohibited conduct of solicitation. Id. Indeed, it is the requirement that the
       defendant must solicit “with the intent that the minor will engage in sexual
       contact” that operates to make otherwise innocent conduct, i.e., soliciting a
       minor to meet, into criminal conduct. It follows then, that for purposes of a
       subsection (c) solicitation offense, it does not matter what happens after the
       solicitation occurs because the offense has been completed; it does not
       matter whether the solicited meeting actually occurs, or that the defendant
       did not intend for the meeting to actually occur, or that the defendant was
       engaged in a fantasy at the time of the solicitation. TEX. PENAL CODE ANN.
       § 33.021(d). Thus, subsection (d) does not conflict with or negate the intent
       element of the solicitation-of-a-minor offense defined by (c).


Ex parte Zavala, 421 S.W.3d 227, 232 (Tex. App.—San Antonio 2013, pet. ref’d).


       Likewise, when this Court reviewed the issue raised by appellant, we concluded

that the statute is not unconstitutional due to any internal inconsistency. Ex parte Fisher,

481 S.W.3d 414, 421 (Tex. App.—Amarillo 2015, pet. ref’d). After identifying that Ex parte

Wheeler, 478 S.W.3d 89, 96 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d), and Ex

parte Victorick, No. 09-13-00551-CR, 2014 Tex. App. LEXIS 5429, at *19-20 (Tex. App.—

Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated for publication),

determined that the plain language of the statute leads to the conclusion that the

applicable mens rea is focused on the time of the solicitation, this Court agreed with this

construction and explained,


       We conclude that Wheeler and Victorick are correct in their respective
       conclusions. We adopt these opinions for two reasons. First, the societal
       issue being addressed, the solicitation of minors to engage in sexual
       activity, is an area of significant importance. See Ex parte Lo, 424 S.W.3d
       at 21 (noting that “[t]here is no question that the State has a right—indeed
       a solemn duty—to protect young children from the harm that would be
       inflicted upon them by sexual predators”). Second, when faced with two
       conflicting constructions of a statute, one of which sustains its validity, we
       apply the interpretation that sustains that validity. See Ex parte Wheeler,

                                               15
         478 S.W.3d [at 96]. The prohibitions against raising the defenses
         enumerated in section 33.021(d) apply only post-solicitation. See id. That
         is to say, the accused will not be entitled to a defensive charge that: (1) the
         meeting did not occur; (2) the actor did not intend for the meeting to occur;
         or (3) the actor was engaged in fantasy at the time of commission of the
         offense.


Ex parte Fisher, 481 S.W.3d at 421.


         We have found no opinion in which the Tenth Court of Appeals has addressed

appellant’s constitutional contentions.     See TEX. R. APP. P. 41.3 (if a conflict exists

between precedent of the transferor court and this Court, appeal will be decided in

accordance with the transferor court’s precedent).


         We conclude that the majority, if not all, of the Texas appellate courts that have

addressed appellant’s contention that section 33.021(d)’s anti-defensive provisions are

unconstitutional have rejected the same and concluded that the provisions are sound.

Consequently, we overrule appellant’s sixth and seventh issues.


                                          Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                           Judy C. Parker
                                                              Justice


Publish.




                                               16
