      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00399-CR
                                       NO. 03-05-00400-CR



                               Lamar Elmer Smith, Jr., Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
    NOS. CR-04-707 & CR-04-708, HONORABLE RONALD G. CARR, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Lamar E. Smith, Jr., appeals his convictions for attempted sexual performance by a

child and attempted aggravated sexual assault. See Tex. Pen. Code Ann. § 15.01 (West 2003),

§§ 22.021, 43.25(b) (West Supp. 2005). The jury assessed punishment at five years’ imprisonment

and a $5,000 fine for the first offense and eight years’ imprisonment and a $10,000 fine for the

second offense, with the sentences to run concurrently. In three issues on appeal, appellant argues

that the evidence is legally insufficient to support his convictions, and that the trial court erred by

(i) denying appellant’s request for a jury instruction on legal impossibility and (ii) by improperly

allowing testimony regarding a prior criminal investigation during the punishment phase of the trial.

Finding that the evidence was sufficient and the trial court did not err, we affirm the judgments of

conviction.
                      FACTUAL AND PROCEDURAL BACKGROUND

               On April 19, 2004, appellant selected a Yahoo! Internet service chat category named,

“schools and education,” and entered the user-created chat room named “girls like older men best.”

Identified on screen as “lskilleen,” appellant then solicited an Internet conversation through an

instant message feature, which allows two people to speak in real time privately to each other, with

a user in the chat room named “jessiegurl323.”1 Jessiegurl323’s profile identified her as “Jessica P.,”

a female “shoppin geek” from Texas. While the age question in jessiegurl323’s profile was left

blank, the section immediately below it stated, “im 13...I like talkin 2 peeps from tx.” Jessiegurl323

was actually Sergeant Steven May, a criminal investigator in the cyber crimes unit of the attorney

general’s office, conducting an undercover investigation.

               Appellant began his first conversation with jessiegurl323 on April 19 with an inquiry

into her age, sex and location (referred to online as “asl”), to which she answered, “13 f huntzville.”

This was followed by appellant’s request for, and receipt of, a digital photograph of her and a short

discussion of her physical characteristics. Appellant then asked jessiegurl323 about her sexual

preferences and experience. Among the questions he asked her was if she liked older men, and if

she had ever been with an older man “sexually, and physically.” Jessiegurl323 told appellant that

she had not, to which he responded, “I haven’t been with a young girl yet either but I want to.”

Jessiegurl323 ended the conversation a few minutes later, but not before appellant sent his e-mail

address, adding, “email me please. . . . I live in killeen texas I would love to meet you.”




       1
         The spelling and grammar used by the parties and reproduced in the opinion reflects the
shorthand used to quicken typing in chat rooms and instant messages.

                                                  2
               Appellant began the next conversation with jessiegurl323 on the morning of June 3,

2004, in a similar fashion:


       lskilleen:        what’s up

       jessiegurl323:    heey

       lskilleen:        whats your asl

       jessiegurl323:    13 f tx

       lskilleen:        Do u like older guys

       jessiegurl323:    yea

       lskilleen:        Do you wanna hook up

       jessiegurl323:    I don’t know. . . do u

       lskilleen:        yeah. . . . Does my age bother you?

       jessiegurl323:    I don’t know how old u r

       lskilleen:        27. . . . Is my age ok

       jessiegurl323:    yea. iz mine

       lskilleen:        Yeah. so u ever been with a man my age

       jessiegurl323:    no

       lskilleen:        so r u a virgin

       jessiegurl323:    yea iz dat ok

       lskilleen:        yeah if I get to have sex

       jessiegurl323:    really

       lskilleen:        YEAH



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                     Appellant then asked about her physical characteristics and her sexual experience

in graphic sexual terms, and asked, “When can we meet.” Jessiegurl323 responded, “I don’t know

whn can u,” to which appellant responded “anytime.” Appellant asked, “We gonna have sex when

we meet,” to which jessiegurl323 responded, “if u wnt 2.” Appellant answered, “Hell yeah.”

Appellant then engaged jessiegurl323 in another obscene sexual discussion, which he followed by

providing his phone number.

                     Later that afternoon, Appellant restarted the conversation by asking when

jessiegurl323 would call him. Immediately after, appellant began describing, in an explicit manner,

his sexual preferences and what he planned to do to jessiegurl323 during their sexual encounter.

Towards the end of the conversation, appellant wrote, “I cant wait 2 see u. u will be the first kid that

I have had sex. . . . I love young girls.”

                     Appellant began the next conversation four days later by sending an instant message

to jessiegurl323 on the morning of June 7, 2004. Appellant asked why she had not called him, and

was eager to set a meeting time and place in the near future:


        lskilleen:          is your parents home

        jessiegurl323:      no

        lskilleen:          are you by yourself?

        jessiegurl323:      yea

             ....

        lskilleen:          I could come down there

        jessiegurl323:      whn

                                                         4
       lskilleen:        Today

       jessiegurl323:    really. . . . whn can u b hear

       lskilleen:        In a couple hours

       jessiegurl323:    lik whn

       lskilleen:        About 3

       jessiegurl323:    mom comez hm round then

       lskilleen:        Can u get out of the house

       jessiegurl323:    prolly not that late

       lskilleen:        I could be there by 2

       jessiegurl323:    wat about tom[orrow]

                         ....

       lskilleen:        I gotta work. . . . I can be there by 2

       jessiegurl323:    prolly 2 late

       lskilleen:        It wont take us 30 min 2 be done


Appellant followed with another explicit sexual discussion and finished the conversation by writing,

“When I put my dick in your mouth it will be like looking down at my own daughter.”

               Appellant restarted the conversation later that afternoon, again urging jessiegurl323

to call him. Soon after, a young-sounding female employee at the attorney general’s criminal

investigations division, pretending to be jessiegurl323 and acting in an undercover capacity, called

appellant. In a short, taped conversation, appellant scheduled a meeting at 10 a.m. on June 9, 2004.

In the lengthy online conversation that followed, appellant set the meeting at the Jack in the Box

                                                  5
restaurant in Buda, and then engaged in a graphic sexual conversation about the planned meeting and

his previous molestation of his own seven-year-old daughter.

               The next day, appellant began a conversation by seeking assurance that jessiegurl323

would be at the appointed restaurant at 10 a.m. When asked if he would show, appellant answered,

“Oh yeah. Its not everyday I get 2 have sex with a kid,” and told jessiegurl323 to expect him in a

gold Chevrolet Malibu. Then, as in previous conversations, appellant began a graphic sexual

conversation about the planned sexual encounter, laced with fantasies about his own daughter.

               Sergeant May collected intelligence on the appellant. May found a gold Chevrolet

Malibu registered at Fort Hood, in Killeen, and found its description and license plate number on a

traffic citation given to appellant. May testified that the phone number listed on the citation matched

the phone number given by “lskilleen” to jessiegurl323 during the Internet conversations and used

by the officers to call “lskilleen” on June 7th. May contacted the Hays County Sheriff’s Department

and gathered additional investigators from the attorney general’s office to conduct surveillance of

the area.

               Just after 9 a.m. on June 9, appellant sent an instant message to jessiegurl323 from

his cellular phone while he was driving in route to Buda. Because May was in Buda waiting for

appellant, he assigned Sergeant David Torsiello, also a member of the cyber crimes unit, to respond

to appellant’s instant messages. Torsiello testified that when he received appellant’s message, he

called May, who then told him how to reply to appellant, letter by letter. May testified that this was

done “so that [Torsiello] would have my style and not his style so that it would be mimicking what

I had previously done. . . .” May testified that he had since reviewed the transcript of the



                                                  6
conversation and that Torsiello had followed his instructions. This short conversation is reproduced

below in its entirety:


        lskilleen:        Hi

        jessiegurl323:    heeeey

        lskilleen:        U ready

        jessiegurl323:    yea ill b there u gunna b ther

        lskilleen:        Yeah, I just went through austin

        jessiegurl323:    kewl . . im gunna get redy and start walkin. c ya ther

        lskilleen:        Wut u wearin

        jessiegurl323:    pink tanktop and shrtz

        lskilleen:        OK

        jessiegurl323:    by

        lskilleen:        bye


                May testified that at 9:40 a.m. appellant’s gold Chevrolet Malibu entered the Jack in

the Box parking lot, where it was identified by license plate number and driver description. After

the car and its driver were positively identified, appellant was arrested. In the vehicle, officers found

a cellular phone in the center console and a digital camera in the glove compartment.

                In two indictments, appellant was charged with attempted sexual performance by a

child, criminal solicitation of a minor, and attempted aggravated sexual assault. At trial, appellant

attempted to show that he believed that jessiegurl323 was an adult who was playing a malicious trick



                                                   7
at his expense, possibly because he was a veteran of the Iraq war, and that he visited the Jack in the

Box on his way to the outlet mall in San Marcos because he wanted to identify this person.

Appellant also argued that he could not be guilty of criminal solicitation as charged because none

of the communications between appellant and the officers originated from within Hays County.

               The jury found appellant guilty of attempted sexual performance by a child and

attempted aggravated sexual assault. Appellant was acquitted of criminal solicitation.


                                            ANALYSIS

Admission of Testimony

               In his first issue, appellant argues that during the punishment phase of the trial, the

trial court erroneously admitted testimony regarding the army’s discovery of child pornography on

his service-issued laptop computer in violation of his Sixth Amendment rights to confrontation and

trial by jury. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36 (2004); Blakley v.

Washington, 542 U.S. 296 (2004). The state responds that the testimony was properly admitted as

an admission by a party opponent. See Tex. R. Evid. 801(e)(2).

               The procedural guarantees of the confrontation clause are not implicated by non-

testimonial evidence. See Crawford, 541 U.S. at 68-69. Guided by the historical evolution of the

confrontation clause and the specific language of the Sixth Amendment, the Supreme Court

identified three types of testimonial statements: (1) ex parte in-court testimony or its functional

equivalent; (2) extrajudicial statements contained in formalized testimonial materials; and (3)

statements that were made under circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial. Id. at 51-52. The Court

                                                  8
added, “An accuser who makes a formal statement to government officers bears testimony in a sense

that a person who makes a casual remark to an acquaintance does not.” Id. at 51.

                Before the jury during the punishment phase of the trial, appellant’s ex-wife, Sarah

Smith, testified that appellant told her that the army had confiscated his service-issued laptop

computer and discovered child pornography on its hard drive:


        Q: Was the laptop—did Lamar Smith disclose anything unusual related to [his
           Army-issued] laptop computer to you?

        A: He did. While deployed to Guantanamo Bay, Cuba, he had called me—I was
           in school in Virginia for the military—and he told me that his computer had
           been confiscated, that they had found child pornography on the computer.


                Applying the third, and broadest, formulation of “testimonial” to ensure compliance

with the confrontation clause, we believe that an objectively reasonably declarant, standing in the

shoes of appellant, would not believe that his comments in a telephone conversation with his then-

wife about a sensitive matter soon after it occurred would be available for use at a later trial. See id.

at 51-52. Because appellant’s out-of-court statement does not fit into any of the three types of

testimonial statements, it is non-testimonial, and the “bedrock procedural guarantees” of the

confrontation clause, applicable to both state and federal prosecutions, are not violated by its

admission into evidence. See id. at 42.

                In the instant case, appellant’s out-of-court statement was properly admitted as an

admission by a party opponent. See Tex. R. Evid. 101(c), 801(e)(2). Texas Rule of Evidence

801(e)(2)(a) “plainly and unequivocally” states that a criminal defendant’s own statements, when

being offered against him, are not hearsay. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App.

                                                   9
1999). A party’s own statements are admissible non-hearsay on the logic that a party is estopped

from challenging the fundamental reliability or trustworthiness of his own statements. Id.

               Appellant also contends that, because he has neither admitted to nor been convicted

of possessing child pornography, the admission of Ms. Smith’s testimony violated his constitutional

right to a jury trial as discussed in Blakely v. Washington. See 542 U.S. 296. Blakely reaffirmed the

holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that any fact, other than a prior

conviction, that increases the penalty for a crime beyond the prescribed statutory amount must be

submitted to a jury and proved beyond a reasonable doubt. 542 U.S. at 301. In Blakely, the

petitioner was sentenced to more than three years above a 53-month statutory maximum because a

judge determined that he acted with “deliberate cruelty.” Id. at 303. The State of Washington

contended that the sentence did not violate Apprendi because the relevant “statutory maximum” was

the 10-year maximum for class B felonies in that state. Id. The Supreme Court reversed and

remanded, holding that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may

impose after finding additional facts, but the maximum he may impose without any additional

findings.” Id. at 303-04. In the instant case, appellant was convicted of attempted sexual

performance by a child, which carries a possible sentence of 2-10 years, and attempted aggravated

sexual assault, which carries a possible sentence of 2-20 years. Both charges carried a maximum

$10,000 fine. The jury assessed mid-range punishments: five years’ imprisonment and a $5,000 fine

for the first offense and eight years’ imprisonment and a $10,000 fine for the second offense, with

the sentences to run concurrently. Blakely is not applicable here. We overrule appellant’s first issue.




                                                  10
Mere Preparation

                In his second and third issues, appellant contends that his acts amounted to no more

than “mere preparation” to commit the offenses, as that standard was interpreted regarding sexual

attempt crimes in Chen v. State, 42 S.W.3d 926 (Tex. Crim. App. 2001). Appellant further contends

that, as a result, the trial court erred in denying an instruction for legal impossibility in the jury

charge and the evidence is legally insufficient to support his conviction. The State responds that

appellant’s sexually explicit online chats for the express purpose of soliciting a thirteen-year-old girl

for sex, and his driving to and arrival at an agreed-upon meeting place to effectuate that purpose,

constitute more than “mere preparation” as required by the penal code. See Tex. Pen. Code Ann.

§ 15.01(a) (West 2003).

                Contrary to appellant’s assertions, Chen v. State did not establish any requirements

for sexual attempt convictions beyond those in the statute. In Chen, the defendant made plans, via

the Internet, to meet a thirteen-year-old girl and have sexual relations with her, and then reserved a

motel room and brought condoms and lubricant to the meeting place. Chen, 42 S.W.3d at 928. The

young girl was actually a Dallas police officer conducting an undercover investigation, and Chen was

arrested in the parking lot of the motel. Id. at 927. On appeal, Chen argued that it was legally

impossible for the State to prove a “completed” offense because the child did not exist, and the court

of criminal appeals addressed only this issue. Id. at 927-28. The court of criminal appeals in Chen

did not require condoms, lubricant or motel reservations to satisfy the attempt standard set forth in

the penal code. See id. at 930-31.




                                                   11
                Here, we must determine if appellant’s communications with jessiegurl323, coupled

with appellant’s act of driving to the agreed-upon location, constitute more than “mere preparation.”

Appellant’s conduct can be divided into two categories. First, appellant communicated over the

Internet and through e-mail with Sergeant May, who was posing as a thirteen-year-old female.

Appellant selected a Yahoo! Internet service chat category named, “schools and education,” and

entered the user-created chatroom named “girls like older men best.” Appellant read the profile of

jessiegurl323, knew that it listed her age as thirteen, and confirmed that fact with her on the Internet

when he initiated the conversations. Appellant initiated all of the sexually-explicit online chats,

which were conducted for the express purpose of soliciting a thirteen-year-old girl for sex. During

the chats, he expressed his desire in an obscene manner: “I love young girls,” “its not everyday that

I get to have sex with a kid,” and “when I put my dick in your mouth it will be like looking down

at my own daughter.” Appellant received two pictures of a thirteen-year-old girl, sent by May, and,

upon their receipt, he remarked that she was cute and that she looked “about twelve” years old.

Appellant eventually enticed her to meet him at a prearranged meeting place.

                Appellant’s second act, the specific act of driving to the agreed-upon meeting place,

is corroborative action. Such conduct goes beyond remote preparatory activity and confirms a

criminal design. Appellant communicated his desire to have sexual contact with a person he thought

was a thirteen-year-old female. Appellant told jessiegurl323 that he wanted her to dress in a way that

made her “look as young as possible,” and requested that she not wear panties and a bra under her

outfit. Appellant asked jessiegurl323 if he could insert his penis into her “mouth pussy and ass.”

Throughout the conversations, appellant stated his intentions to engage in sexual contact, sexual



                                                  12
intercourse, and deviate sexual intercourse with her. Appellant arranged to meet the child at a

specific time and place and called from Austin, midway through the ninety mile drive, to see if she

was ready and to let her know that he was on his way. Appellant then traveled to the meeting place

at the appointed time.

               Given that the minor did not actually exist, appellant took every possible step he

could have taken in order to commit the offenses of sexual performance by a child and aggravated

sexual assault. Therefore, legal impossibility is not a defense here. Legal impossibility exists

“where the act if completed would not be a crime, although what the actor intends to accomplish

would be a crime.” Lawhorn v. State, 898 S.W.2d 886, 891 (Tex. Crim. App. 1995). It has also

been described as existing when “what the actor intends to do would not constitute a crime, or at

least the crime charged.” Id. If jessiegurl323 had been an actual thirteen-year-old girl, then what

appellant intended to accomplish, sexual performance by a child and aggravated sexual assault,

constituted an actual crime. See Chen, 42 S.W.3d at 930. Appellant’s goal was to commit the

offenses of sexual performance by a child and aggravated sexual assault. See id. Because those acts

are crimes by law, the doctrine of legal impossibility is not an issue in this case. See id.

               Appellant had the specific intent to commit the offenses of sexual performance by a

child and aggravated sexual assault, and he committed an act amounting to more than mere

preparation that tended but failed to effect the commission of the offense. In assessing the legal

sufficiency of the evidence to support a conviction, we find that a rational jury could have found the

accused guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson v.




                                                 13
Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

              We overrule appellant’s second and third issues.



                                       CONCLUSION

              Because appellant has not shown any reversible error, we overrule his issues and

affirm the judgments of conviction.




                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: March 16, 2006

Do Not Publish




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