     Case: 14-50908      Document: 00513190307         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50908
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 11, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAVID ERNESTO MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:13-CR-315-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant David Ernesto Martinez was convicted by a jury of
violating 18 U.S.C. § 2422(b). On appeal, Martinez challenges the sufficiency
of the evidence. In reviewing the evidence for sufficiency, we examine “all
evidence in the light most favorable to the verdict to determine whether a
rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” United States v.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-50908

Harris, 740 F.3d 956, 962 (5th Cir.), cert. denied, 135 S. Ct. 54 (2014) (internal
quotation marks and citation omitted). “The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose among reasonable
constructions of the evidence.” United States v. Lewis, 774 F.3d 837, 841 (5th
Cir. 2014) (internal quotation marks and citation omitted).
      To support a conviction under § 2422(b), the government must prove that
(1) the defendant used a facility of interstate commerce to commit the offense;
(2) the defendant was aware that the victim was younger than eighteen; (3) by
engaging in sexual activity with the victim, the defendant could have been
charged with a criminal offense under state law; and (4) the defendant
knowingly persuaded, induced, enticed, or coerced the victim to engage in
criminal sexual activity. See United States v. Rounds, 749 F.3d 326, 333 (5th
Cir. 2014). “To sustain a conviction for an attempt, the evidence must show
that the defendant (1) acted with the culpability required to commit the
underlying substantive offense, and (2) took a substantial step towards its
commission.”    United States v. Olvera, 687 F.3d 645, 647 (5th Cir. 2012)
(internal quotation marks and footnote omitted).
      Martinez communicated with law enforcement agents posing as a 16-
year-old girl named Whitney. He notes that he initially offered only to give
Whitney a massage, and he points out that his subsequent and more detailed
text-messaged descriptions were given only in response to Whitney’s repeated
questions as to “what else” he would do. He argues that the statements made
in response to Whitney’s queries are insufficient to prove that he was
attempting to persuade, induce, entice, or coerce Whitney to engage in sexual
activity. Martinez also contends that the acts discussed in the communications
with Whitney are insufficient to show that conduct criminalized under Texas



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                                  No. 14-50908

law was contemplated.        Martinez does not contest the sufficiency of the
evidence as to his use of a facility of interstate commerce, his awareness of the
age of the intended victim, or his taking a substantial step toward commission
of the offense, so we need not address the sufficiency of the evidence as to these
elements. See Rounds, 749 F.3d at 333 n.4.
      “Whether there was inducement, persuasion, or enticement is a question
of fact for the jury to decide. All we must decide is whether or not enough
evidence was presented for a reasonable jury to come to the conclusion that
there was some form of inducement.” United States v. Lundy, 676 F.3d 444,
450 (5th Cir. 2012). “Evidence can establish that a defendant intended to
induce, persuade, entice, or coerce a minor by sending the minor sexually
explicit messages.” Rounds, 749 F.3d at 333.
      The evidence shows that after Martinez offered to give Whitney a
massage, the law enforcement agent posing as Whitney inquired whether
Martinez wanted her clothed. Martinez replied that it would be better if she
were naked. Subsequently, in response to queries, Martinez indicated that he
would touch, kiss, and lick Whitney’s body in a manner explicitly intended to
arouse her sexual desire. Given the sexually-charged nature of Martinez’s
messages to Whitney, we conclude that a rational trier of fact could have found
that Martinez knowingly attempted to entice a minor to engage in sexual
activity. See Lundy, 676 F.3d at 447, 450. We likewise conclude that a rational
trier of fact could have found that Martinez contemplated “sexual conduct” that
would have constituted a violation of Texas law. See TEX. PENAL CODE ANN.
§§ 43.25(a)(2), (b), 43.01(3).
      The judgment of the district court is AFFIRMED.




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