AFFIRM; and Opinion Filed December 12, 2018.




                                                      In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                              No. 05-17-01147-CR

                                  STEVEN TROY TILLERY, Appellant
                                               V.
                                   THE STATE OF TEXAS, Appellee

                           On Appeal from the 219th Judicial District Court
                                        Collin County, Texas
                               Trial Court Cause No. 219-82576-2017

                                   MEMORANDUM OPINION
                             Before Justices Bridges, Francis, and Lang-Miers
                                      Opinion by Justice Lang-Miers

          Appellant was convicted of aggravated sexual assault of a child under the age of fourteen

and sentenced to fifty years’ imprisonment and a $10,000 fine. On appeal, appellant claims that

the trial court erred by not submitting a requested jury charge on the offense of solicitation of a

minor, which appellant claims is a lesser included offense of aggravated sexual assault of a child.

We affirm.

                                                   Background

          On Saturday, February 14, 2015, S.T. was visiting her father, appellant, at his home in

McKinney Texas.1 She was thirteen years old at the time. S.T. was in her bedroom getting ready




   1
       Appellant was S.T.’s biological father. He and S.T.’s mother divorced in 2010 and had separate residences.
to go out for a Valentine’s Day dinner with appellant and her little brother, D.T., when she got a

text message on her cell phone from appellant.

        The text message was lengthy. In it appellant graphically described sexual feelings he had

for S.T. Appellant offered her a number of items of value – a horse, a convertible BMW, a checking

account, a credit card and cash for both S.T. and her mother – in exchange for her submission to

future acts which would gratify his sexual feelings. In this same text message appellant also

described three completed acts of digital penetration of S.T. committed by him between

Thanksgiving and Christmas.

        The text made S.T. uncomfortable. She called her mother and sent her mother a copy of

the text. S.T. convinced appellant to take her to her mother’s house. Once at her mother’s house,

S.T.’s mother locked the door then drove both S.T. and her little brother over to a friend’s house.

S.T.’s mother called the police the next day.

        After responding to the call and viewing the text message on S.T.’s cell phone, the police

requested that S.T. go to the Children’s Advocacy Center of Collin County. Once there, S.T. was

interviewed by Janetta Michaels, a forensic interviewer at the Advocacy Center. At that time S.T.

was able to describe some things that surrounded the sexual abuse, but she did not make outcry of

the actual sexual abuse. S.T. was unable to articulate what appellant said to her through the text

message, but she was able to write some things down and was able to discuss the text message

with Michaels. S. T. indicated that she did not remember everything appellant said he had done to

her in the text.

        Appellant was interviewed by the police. During that interview, appellant admitted that he

sent the text message to S.T. and that it “probably” upset her. The interview ended when appellant

stated that he wanted to hire a lawyer. The police retained appellant’s phone and subsequently

obtained a warrant to search the phone.

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        S.T. received some therapy which she testified made her stronger, helped her to remember

things, and to be able to talk about them. Approximately fourteen months later, S.T. returned to

the Advocacy Center and had a second interview with Michaels during which she made an outcry

of sexual abuse against appellant.

        At trial, S.T. described in detail one act of forcible digital penetration by appellant who had

come into her room while she was asleep. This happened before she received the text message

from appellant and while she was thirteen, though she did not give a specific date. This was the

only instance she recalled. S.T. testified that she had not been ready to talk about this abuse in her

first forensic interview.

        Appellant did not testify at trial or present any defensive evidence. The text message was

admitted into evidence without objection.

                            Appellant’s Allegations and State’s Response

        Appellant claims that the trial court erred by denying his request for an instruction on

solicitation of a minor because, under the specific facts of this case, the elements necessary to

prove solicitation were the functional equivalent of the elements necessary to prove aggravated

sexual assault of a child and, further, the evidence showed that if appellant was guilty, he was only

guilty of solicitation. The State responds that the trial court properly denied that requested jury

charge because solicitation of a minor is not a lesser included offense of aggravated sexual assault

of a child.

                                Objections and Arguments at Trial

        After both sides had rested on the evidence, defense counsel raised the issue of solicitation

of a minor as a lesser included offense to the charged offense of aggravated sexual assault of a

child under the age of fourteen:




                                                 –3–
                DEFENSE COUNSEL: [C]riminal solicitation of a minor is 15.031(a) and
       it tracks it just beautifully. And it doesn’t matter if there’s evidence that the offense
       was completed to still be charged as solicitation.

               So I think solicitation is a lesser included offense of this, charged in the
       indictment. And in the text it does – in the very last sentence of the text, it talks
       about this being a dream. But the rest of the text is solicitation.

       Defense counsel was referring to the text appellant sent to S.T. and highlighted portions of

that text, particularly the “dream” language for the trial court. When asked by the trial court to

explain the significance of that, counsel said as follows:

               DEFENSE COUNSEL: Because the dream stuff – the sex stuff never really
       happened, and it’s purely solicitation of it happening in the future. We talked about
       twice in that text, it says, a dream. And the very end of it says, this is the dream I’ve
       been having. So the text implies that the sex stuff is a dream. But the rest of the
       body of the text is a solicitation.

       The State responded that “criminal solicitation of a minor is not a true lesser of aggravated

sexual assault of a child.” The prosecutor further argued as follows:

               THE PROSECUTOR: Defense counsel’s argument that it’s either a dream
       – that this text message is relaying either a dream or a solicitation is not true. We
       also have the Defendant saying what he has already done to his daughter.

              The dream in the bottom, at the very end, my interpretation of it is that he
       is dreaming of her letting him kiss her body for the next four to five months, once
       a month, not everything that he has said that he had done.

       An extensive discussion followed between the prosecutor, defense counsel, and the trial

court. Both the prosecutor and defense counsel focused on the content and language of the text.

The trial court then said as follows:

       THE COURT: The only reason that I would consider . . . [giving the charge on
       solicitation] . . . is, I don’t think it makes any difference.

       *
               If this jury believes the child and the other witnesses, the jury will convict
       him of aggravated sexual abuse, if they feel like it’s been proven beyond a
       reasonable doubt. If they don’t, under the current situation, they would find him not
       guilty, or find him guilty of . . . [solicitation] . . . I confess to you that something
       that we are talking about is going to cost somebody else about 25 hours of work on
       an appeal, if the verdict of guilty is returned of aggravated sexual assault.
                                                 –4–
               Because that’s all I see in this case. I don’t see any other legal argument that
        can be made.

        *

               I’m not telling you it’s going in. I’m telling you, that’s probably the only
        reason I would even consider it going in.

        The next day, and prior to submitting the charge to the jury, the trial court asked the parties

for any objections to the charge. The State responded that it had no objections to the charge.

Defense counsel again requested a jury charge on solicitation.

                THE COURT: What says the Defense?

                DEFENSE COUNSEL: I’m still wanting the lesser included solicitation of
        a child for sex.

                THE COURT: I’m listening.

                DEFENSE COUNSEL: That’s what I want. I mean, again, the –

                THE COURT: You’re basically saying you have an offense – testimony as
        to an offense at the time of the hunting trip and the house. And you look at the text
        and see, what, as a lesser included?

               DEFENSE COUNSEL: I say that the text makes a lesser included available
        because it does offer money and property in exchange for sex.

                THE COURT: In the future.

                DEFENSE COUNSEL: In the future.

        The State responded that “[s]olicitation of a minor is not a lesser included of aggravated

sexual assault of a child.” The trial court asked defense counsel if he had any case law on the issue.

Defense counsel responded: “I do not have a case that that’s a lesser included offense because this

will be a case of first impression, I think.”

        The trial court denied the defense request for a jury charge on solicitation.




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                                         Jury Charge Error

        In analyzing a claim of jury charge error, we must first determine if error exists. See

Almanza v. State, 686 S.W.2d 157, 173–74 (Tex. Crim. App. 1985); see also Price v. State, 457

S.W.3d 437, 440 (Tex. Crim. App. 2015). If it does not, our inquiry ends. See Price, 457 S.W.3d

at 440. If, however, we find error in the charge, we next consider whether an objection to the

charge was made and analyze the error for harm. Id. Where, as here, claimed error is properly

preserved by the timely request for an additional instruction, reversal is required only if the error

was “calculated to injure the rights of the defendant,” which has been defined to mean that there

is “some harm” caused to the defendant. Almanza, 686 S.W.2d at 171; see also Barrios v. State,

283 S.W.3d 348, 350 (Tex. Crim. App. 2009). In evaluating whether appellant suffered some harm

in this case, we consider the entire jury charge, the evidence, the arguments of counsel, and any

other relevant information in the record. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App.

2006); Almanza, 686 S.W.2d at 171.

                                     Lesser Included Offenses

        An offense is a lesser included offense if (1) it is established by proof of the same or less

than all the facts required to establish the commission of the offense charged; (2) it differs from

the offense charged only in the respect that a less serious injury or risk of injury to the same person,

property, or public interest suffices to establish its commission; (3) it differs from the offense

charged only in the respect that a less culpable mental state suffices to establish its commission;

or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09.

        In determining whether an instruction on a requested lesser included offense should have

been given to a jury, we apply a two-pronged test. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.

Crim. App. 2012) (citing to and relying on the Aguilar/Rousseau test); see also Rousseau v. State,

                                                  –6–
855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim.

App. 1985). First, we must determine whether the lesser offense is included within the proof

necessary to establish the greater offense. Cavazos, 382 S.W.3d at 382. This is a question of law

to be determined under the cognate pleadings approach. Hall v. State, 225 S.W.3d 524, 535–36

(Tex. Crim. App. 2007) (explaining the cognate pleadings approach). Under this analysis, we look

to the indictment for the greater offense and determine whether it “1) alleges all of the elements of

the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such

as non-statutory manner and means, that are alleged for purposes of providing notice) from which

all of the elements of the lesser-included offense may be deduced.” Ex parte Watson, 306 S.W.3d

259, 273 (Tex. Crim. App. 2009) (op. on reh’g). We also examine the elements of the lesser offense

and determine whether they are functionally equivalent or less than those required to prove the

greater offense. Rice v. State, 333 S.W.3d 140, 144–45 (Tex. Crim. App. 2011).

       Next, we must determine whether some evidence in the record showed that, if the defendant

is guilty, he is guilty only of the lesser included offense. Cavazos, 382 S.W.3d at 382, 385; see

also Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004). While anything more than

a scintilla of evidence may be sufficient to entitle a defendant to the lesser included offense

instruction, the evidence must establish that the lesser included offense is a “valid, rational

alternative to the charged offense.” Hall, 225 S.W.3d at 536. It is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense; rather, “there must be some evidence

directly germane” to the lesser included offense for the factfinder to consider before an instruction

on that lesser included offense is warranted. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim.

App. 1997).




                                                –7–
               The Evidence Does Not Show Appellant’s Guilt for Solicitation Only

         Appellant does not cite to a case where solicitation of a minor was found to be a lesser

included offense of aggravated sexual assault of a child under fourteen and we have found none.

Because of the resolution we give to this case, however, it is unnecessary for this Court to decide

whether solicitation of a minor can be a lesser included offense of aggravated sexual assault of a

child under the age of fourteen.

         The second prong of the test for when a charge on a lesser included offense is needed

requires this Court to determine whether some evidence shows that if appellant is guilty, he is

guilty only of the lesser offense. This second step is a question of fact and is based on the evidence

presented at trial. Cavazos, 382 S.W.3d at 383. Even assuming, without deciding, that solicitation

of a minor is a lesser included offense of aggravated sexual assault of a child under fourteen, we

conclude that appellant cannot prevail under this second prong because the evidence does not show

that, if he is guilty, he is guilty only of solicitation of a minor.2

The Indictment

         The indictment alleged that appellant committed the offense of aggravated sexual assault

of a child under the age of fourteen as follows:3 “intentionally and knowingly cause the penetration

of the female sexual organ of . . . (S. T.), . . . a child then younger than fourteen (14) years of age,

and not the spouse of the defendant, by means of defendant’s finger.” The indictment alleged a

completed offense of aggravated sexual assault of a child by means of digital penetration. TEX.

PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (a)(2)(B).




    2
      The State does not address the second prong of the analysis for when a charge on a lesser included offense is
required, i.e., whether the evidence showed that if appellant was guilty, he was only guilty of solicitation of a minor.
    3
      The indictment originally contained six counts. Prior to trial, the State abandoned counts 2 through 6 and
proceeded to trial only on count 1.
                                                         –8–
Solicitation of a Minor

       A person commits the offense of criminal solicitation of a minor if the person, with intent

to commit an enumerated offense, requests, commands or attempts to induce a minor to engage in

specific conduct that, under the circumstances surrounding his conduct as the actor believes them

to be, would constitute an enumerated offense. TEX. PENAL CODE ANN. § 15.031(a), (b).

Aggravated sexual assault is included as an enumerated offense. TEX. CODE CRIM. PROC. ANN. art.

42A.054(a)(8). A completed offense of aggravated sexual assault, however, is not required.

Analysis

       S.T. testified to an act of forcible digital penetration when she was thirteen. Nothing

contradicted S.T.’s testimony. The testimony of a child victim alone is sufficient to support a

conviction for aggravated sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Revels v.

State, 334 S.W.3d 46, 52 (Tex. App.—Dallas 2008, no pet.).

       In the text message that appellant sent to S.T., he offered a number of items of value to

S.T. in exchange for sexual favors. While solicitation may be shown by that portion of the text

message, in this same text message appellant also admitted to three prior acts of digital penetration

which occurred between Thanksgiving and Christmas.

       Digital penetration of a child under the age of fourteen constitutes aggravated sexual

assault. TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (a)(2)(B). A completed act of digital

penetration is not, however, essential in the proof necessary to establish solicitation of a minor.

TEX. PENAL CODE ANN. § 15.031(a), (b); TEX. CODE CRIM. PROC. ANN. art. 42A.054(a).

Consequently, appellant cannot establish that solicitation of a minor was a “valid, rational

alternative to the charged offense” because he cannot show, under the facts of this case, that if he

is guilty he is guilty only of the offense of solicitation. See Hall, 225 S.W.3d at 536. We conclude




                                                –9–
that the trial court did not err by denying appellant’s requested lesser included offense instruction

on solicitation of a minor and overrule appellant’s sole issue.

                                            Conclusion

       We affirm the trial court’s judgment.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE



DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)

171147F.U05




                                               –10–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 STEVEN TROY TILLERY, Appellant                     On Appeal from the 219th Judicial District
                                                    Court, Collin County, Texas
 No. 05-17-01147-CR        V.                       Trial Court Cause No. 219-82576-2017.
                                                    Opinion delivered by Justice Lang-Miers.
 THE STATE OF TEXAS, Appellee                       Justices Bridges and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 12th day of December, 2018.




                                            –11–
