                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00119-CR

MAXEY KENNETH LOVELL,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 14-02819-CRF-272


                           MEMORANDUM OPINION


       Maxey Kenneth Lovell was charged with the offense of Attempted Indecency with

a Child by Exposure. See TEX. PENAL CODE ANN. §§ 15.01, 21.11(a)(2)(A) (West 2011). He

was accused of exposing himself through video images sent over the internet to someone

he thought was a 13-year-old girl. The “girl” was a police officer. After the trial court

denied Lovell’s motion to quash the indictment, Lovell pled guilty to the charge. He was

sentenced to two years in a state jail facility and placed on community supervision for

two years. In three issues, Lovell challenges the trial court’s ruling on Lovell’s motion to
quash. Because the trial court did not err in denying Lovell’s motion to quash, the trial

court’s judgment is affirmed.

         The purpose of a motion to quash is to apprise the trial court of any defects in the

charging instrument that are not obvious on its face. Green v. State, 533 S.W.2d 769 (Tex.

Crim. App. 1976). When reviewing a trial court's decision on a motion to quash, we apply

a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App.

2007).

         Lovell first contends the trial court erred in denying Lovell’s motion to quash

because the indictment was deficient in falling to allege that Lovell attempted to commit

the offense of Indecency with a Child by Exposure in the presence of a child.1 The

elements necessary to establish an offense under the attempt statute are: 1) a person, 2)

with specific intent to commit an offense, 3) does an act amounting to more than mere

preparation, that 4) tends, but fails, to effect the commission of the offense intended. TEX.

PENAL CODE ANN. § 15.01(a) (West 2011). Under this statute, the constituent elements of

the intended offense need not be alleged. Boston v. State, 642 S.W.2d 799, 802 (Tex. Crim.

App. 1982); Cody v. State, 605 S.W.2d 271, 274 (Tex. Crim. App. 1980); Williams v. State,

544 S.W.2d 428 (Tex. Crim. App. 1976). Accordingly, the indictment in this case is not




1 The elements of Indecency with a Child by Exposure are: (1) the defendant; (2) with a child less than
seventeen years of age; (3) not the defendant's spouse; (4) with intent to arouse or gratify the sexual desire
of any person; (5) exposed his genitals; (6) knowing a child was present. See TEX. PENAL CODE ANN. §
21.11(a)(2)(A) (West 2011).

Lovell v. State                                                                                        Page 2
deficient for failing to allege an element of the offense intended, that the offense be

committed in the presence of a child. The trial court did not err in denying Lovell’s

motion to quash for this reason, and Lovell’s first issue is overruled.

        In his second issue, Lovell contends the trial court erred in denying his motion to

quash because the indictment attempts to prosecute constitutionally protected conduct.

Lovell asserts that because he is accused of sending video images to someone he thought

was a minor, that act is constitutionally protected pursuant to the Court of Criminal

Appeals’ opinion in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014).2

        After quoting a passage in Lo, and without any analysis, Lovell states the

indictment in this case attempts to criminalize the act of communication which is the

same conduct that was held in Lo to be protected by the First Amendment. We disagree

with Lovell. First, the act criminalized in the indecency-with-a-child-by-exposure statute

is the act of exposure, not the method by which it was accomplished. See Harris v. State,

359 S.W.3d 625, 632 (Tex. Crim. App. 2011) (“the gravamen of the offense of indecency

with a child by exposure is the act of exposure”). Second, Lo did not hold that all statutes

involving internet communications of a sexual nature by an adult to a minor were

unconstitutional. Rather, the Court in Lo found that subsection (b) of Section 33.021, the




2The logical inference of Lovell’s assertion would be that, as such, the indictment is defective because it
fails to allege an offense. See Ex parte Hawkins, 722 S.W.2d 424, 425 (Tex. Crim. App. 1986) (conduct
described in indictment does not constitute an offense and is defective).


Lovell v. State                                                                                     Page 3
offense of online solicitation of a minor, was unconstitutional because that particular

statute prohibited all internet communications relating to or describing explicit sexual

material by an adult to a minor if that adult communicates with the intent to arouse or

gratify sexual desire. Ex parte Lo, 424 S.W.3d 10, 26 (Tex. Crim. App. 2013). The Court

emphasized that “consistent with the First Amendment, it is conduct designed to induce

a minor to commit an illegal sex act with titillating talk that may be proscribed, not the

titillating talk itself.” Id. (emphasis added).

          Because Lo did not hold that in all instances, all video images sent over the internet

to someone thought to be a minor, are constitutionally protected, the indictment does not

fail to allege an offense and is not subject to a motion to quash. 3 The trial court did not

err in denying the motion to quash for this reason, and Lovell’s second issue is overruled.

          In this third issue, Lovell contends the trial court erred in denying Lovell’s motion

to quash because the indictment alleges an offense that is legally impossible to commit.

Lovell argues that it is legally impossible to commit or attempt to commit a crime by

communicating over the internet when the crime requires a child be present.4

          Regardless of whether it may or may not have been legally impossible for Lovell

to commit the offense, a motion to quash, like any pre-trial motion, cannot be used to




3   We note that Lovell did not challenge the constitutionality of the statute.

4It was argued at the hearing on the motion to quash that the exposure was sent live stream through a
web-cam.

Lovell v. State                                                                               Page 4
argue that the State cannot prove any part of its case. See Lawrence v. State, 240 S.W.3d

912, 916 (Tex. Crim. App. 2007). Here, Lovell is contending the State cannot prove that

he attempted to expose himself in the presence of a child because the person Lovell

believed to be a child was at the receiving end of a video sent through the internet. This

is a sufficiency of the evidence argument and is not a proper subject for a motion to quash.

See id. (“[A] pre-trial proceeding should not be a ‘mini-trial’ on the sufficiency of the

evidence to support an element of the offense.”). See also Patterson v. State, 353 S.W.3d

203, 210 (Tex. App.—San Antonio 2011, pet. dism’d). Moreover, none of the cases cited

by Lovell in support of his legal impossibility argument involved the review of a motion

to quash. Accordingly, the trial court did not err in denying Lovell’s motion to quash for

this reason as well. Lovell’s third issue is overruled.

        Having overruled each of Lovell’s issues on appeal, we affirm the trial court’s

judgment.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 15, 2016
Do not publish
[CR25]




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