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Iii I’he Luirt 01 piia1i Fi1tI! 1jttitt ni Jaxa!3 tt OdllflL1 No 05-41-01 124-CR

KKN 1)ALL WI LLIAM IEADOWS, Appellant V. [IlK STATE OF TEXAS, Appellee

On Appeal from the Criminal l)istrict Court No. I l)allas County, Texas Trial Court Cause No. F06—29375—lI

MEMORANDUM OPINION I3efore Justices O’Neill, Opinion By Justice O’Neill, FitzGerald and Lang-Miers Appellant appeals his conviction for criminal solicitation ota minor. In tour issues, appellant contends (I) the evidence is legally insufficient to support his conviction because the State [hued to show he acted with intent that the offense of sexual assault be committed, (2) the trial court erred in admitting extraneous offense evidence, (3) the trial court erred in admitting appellant’s AOL address book, and (4) the judgment should be reformed to show the correct statute under which appellant was convicted. For the following reasons, we retorm the judgment, and affirm the judgment as reformed.

The grand jury indicted appellant for criminal solicitation of a minor for requesting, commanding, and attempting to induce “Nellie,” a fictitious minor, to engage in conduct that would constitute sexual assault. At trial, the State presented evidence that Detective I lntce Marshall created a Iictional prohle 1)11 AOL [or “ianelleL.iirl 14” (“Nellie”), a Iburteen—ycar—old high school freshman. ;ppellant, who was thirty-one years old, began communicating with “Nellie” by instant message. lhe State introduced transcripts of the messages exchanged between appellant and Nellie.

11w transcripts show Nellie’ told appellant she was lburteen and lived in Garland. Appellant told Nellie he was twenty-one and began “chatting” with her asking what she liked to do and whether she babysat. She said she liked to spend money. but that she (lid not babysit. Appellant asked if she liked older men that could help her with money, and asked to meet her so he could see what she looked like. Nellie said she would meet appellant at a nearby McDonald’s that day.

When Nellie did not show up, appellant contacted Nellie the following day, a Friday.

Appellant again asked to meet Nellie to see how they would “work out” and ifshe may be his “WC’ (girlfriend). Nellie said she was busy all weekend, but she could meet him the following Monday.

When Nellie questioned what they would do, appellant asked ifshe wanted to have sex. Nellie told appellant she had never had sex before, but that it might be fun. However, she said she was worried her mother would find out or she might get pregnant. She insisted appellant wear a condom ifthey were going to have sex. Appellant agreed. Appellant and Nellie planned to meet outside the same McDonald’s on Monday and they would go to his house. Appellant promised to bring her some marijuana so she would be less nervous.

Appellant went to the McDonald’s the following Monday with his two children, an intint and young daughter. Police arrested appellant tbr solicitation ofa minor. Appellant and his car were searched and no condoms were found. During his interrogation, appellant initially denied he was meeting a girl at the McDonald’s, claiming he was just getting something to eat. Eventually,

‘When we refer to “Nellie,” we refer to Mnnhnll pretending to be Nellie.

—2— :ippell;mi admitted lie was planning on iiteetmg Nellie at the McDonald’s.

:\ppcllaut test tiled at trial and claimed the transcripts ol the commumeations between he and Nellie were false. He said he met “Nellie” to talk to her about babitting and whether he could pay her with “weed” to babysit. After hearing the evidence, the jury Ibund appellant guilty as charged in (lie indictment.

In his first point of error, appellant contends the evidence is legally insufficient to support his conviction, tinder section 15.031(b) of the penal code, it is an offense if a person, with intent to commit sexual assault of a child, requests. commands, or attempts to induce a minor or a person he believes to be a minor to engage in conduct that the actor believes would constitute the offense.

See rEx. PENAL CODE ANN. § 15.03 1(b) (West 2011); see also TEX. PENAL CODE ANN. 4 22.01 l(West 2011) According to appellant, the State failed to prove he had the intent to engage in sexual contact with “Nellie.”

When reviewing legal sufficiency of the evidence to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt Jackson v. Vfrginia, 443 U.S. 307, 319 (1979); Brooks i’. State, 323 S.W.3d 893, 899, 912 ((‘cx. Crim. App. 2010); Wesbrook v. State, 29 S.W.3d 103, Ill (‘fex. Crim. App. 2000). A jury may believe all, some, or none ofany witness’s testimony. Sharp it Slate, 707 S.W.2d 611,614 (Ccx. Crim. App. 1986). The jury may draw reasonable inferences from the evidence and we presume the jury resolved all inconsistencies in the evidence in favor of the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

The chat records shows that the thirty-one-year-old appellant, claiming he was twenty-one- years-old, tried to induce someone he believed to be a fourteen-year-old girl to meet him. When

-3- appellant’s first attempt to meet “Nellie” lulled, he tried again. Appellant told Nellie he wanted to meet her to see if might he his girlfriend, and specifically asked Nellie if she wanted to have sex.

Appellant promised he would bring a condom and arranged to meet her outside of the McDonald’s to then go back to his place. To show lie did not have the requisite intent, appellant relies primarily on his own selitserving testimony claiming he was only meeting Nellie to take her to the park and see ifshe might babysit in exchange for marijuana. He also asserts the State tidied to prove his intent because he did not have condoms with him when he went to meet Nellie. Having viewed all the evidence in the light most favorable to the prosecution, the jury could have rationally found beyond a reasonable doubt that appellant had the intent to engage in sexual contact with a minor. We overrule appellant’s first point of error.

In his second point of error, appellant contends the trial court erred in admitting extraneous offense evidence that he engaged in online chats with other girls who may have been minors. In his third point oferror, appellant contends the trial court erred in admitting evidence ofhis AOL address book because it showed he had contacts with fcmales with sexually suggestive and youthful names.

A trial court’s decision to admit evidence ofextraneous offenses will not be reversed absent a clear abuse ofdiscretion. Santeilan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997). Rule of evidence 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Moses v. State, 105 S.W.3d 622,626 (Tex. Crim. App. 2003). For example, evidence ofother crimes, wrongs, or acts may be admissible to prove identity or intent, or to rebut a defensive theory. Id. However, even if the evidence is relevant, and the purpose for which it is being offered is permissible under rule 404(b), it may still be excluded under rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice. Id.

-4- Appellant asserts the complained-nt evidence was inadmissible because it suggested he had engaged in improper sexual conduct with other minor girls on the Internet Appellant’s defensive theory was that he went to the McDonald’s to meet a fourteen-year old girl to see if she was interested in babysitting his children. We conclude the evidence was relevant to show appella nt was not on the internet fur the purpose of soliciting babysitting services.

Appellant also argues that even ifthe evidence was admissible for a proper purpose, it should have been excluded under rule of evidence 403. Under rule 403, we evaluate relevan t evidence to determine if its probative value is substantially outweighed by the danger of unfair prejudice. See ‘fez. It. Livid. 403. In conducting a rule 403 balancing test, we balance the probative value of the evidence and the proponent’s need 11w that evidence against (I) any tendency the of evidence to suggest decision on an improper basis, (2) any tendency of the evidence to confuse or distract the jury from the main issues. (3) any tendency of the evidence to he given undue weight by ajury not equipped to understand the probative value ofthe evidence, and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat eviden ce already admitted. Gigliobianco v. State, 210 S.W.3d 637. 641—42 & aS (Tex. Crim.

App. 2006).

As noted above, the evidence was probative in that it tended to show appellant was not on the internet looking for babysitting services. The evidence did not include any specifi cs of any extraneous misconduct and there was therefore little danger the jury would either give the evidence undue weight or decide the case on an improper basis. Further, the presentation ofthe evidence took minimal time and was not likely to confuse the jury. We cannot conclude the trial court abused its discretion in admitting the evidence under rule 403. We resolve the second and third issues against appellant

-5- In his Ioi nih issue, ,ippcl laiit requests we retorm the judgment to show tile proper tense tor which he vas convicted. I he judgment slates appel hint was convic ted under “22() I I Penal (‘ode,’’ which is the sexual assault statute. I lowever. appellant was convic ted under section 1 503 I of the Penal Code br solicitation ofa minor. lhe Stale concedes error.

We rehami the judimenL to show the proper statute under which appellant was convicted. As relormed, we aHirm the trial court’s judi4ment.

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Do Not Publish Tix. R. Apr. P.47 Ill 124F.U05

6— uitrt øf pinah .iiit1i Ji1rirt tif cxt; at JaI1ai JUDGMENT KENDALL WILLIAM ‘v1LADOWS, Appeal tiom the Criminal District Court No. Appellant I of Dallas County, Texas. (Tr.Ct,No. F06- 203751 1).

No. 05—11—Oil 24—( R V. Opinion delivered by Justice O’Neill, Justices FitzGerald and Lang—Miers THE STAT1 OF TEXAS, Appellee participating.

I3ased on the Court’s opinion of this date, the judgment ot the trial court is REFORMED to show the “Statute for Offense’’ appellant was convicted was “I 5.03 I Penal Code.” As reformed, the judgment is A FF1 RMED.

Judgment entered November 14, 2012.

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