Chen v. State
42 S.W.3d 926 (2001)
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Rule of Law:
Factual impossibility is not a defense to a criminal attempt charge. A defendant may be convicted of an attempt crime if they possessed the specific intent to commit the offense and performed an act amounting to more than mere preparation, even if an unknown, extrinsic factual condition made the completion of the substantive crime impossible.
Facts:
- Appellant, Chen, placed an advertisement on an America Online bulletin board stating, 'A nude dancer needed for discreet pleasure. I am generous and rich. You must be very attractive and young.'
- Detective Steve Nelson, a Dallas Police Officer, responded to the ad posing as 'J. Cirello' and, after some correspondence, represented himself as 'Julie,' a 13-year-old girl.
- Chen and 'Julie' exchanged numerous emails discussing plans to meet, with Chen expressing a desire for 'Julie' to 'be nude and watched by me while I am masturbating.'
- They arranged to meet at a Best Western motel on February 11, 1997, for which Chen reserved a room.
- Chen informed 'Julie' that he would bring protection and lubrication to the meeting.
- Chen arrived at the specified motel at the agreed-upon time in the champagne-colored minivan he had described to 'Julie'.
- Upon his arrest at the motel, police found a package of condoms and a tube of KY Jelly on the console of his minivan.
- Chen later gave a voluntary statement admitting he was going to the motel to show a girl how to have sex.
Procedural Posture:
- Appellant was convicted of attempted sexual performance by a child in a bench trial in a Texas state trial court.
- The trial court sentenced him to seven years confinement, suspended in favor of seven years of community supervision.
- Appellant (as appellant) appealed the conviction to the Texas Court of Appeals, Fifth District, in Dallas (an intermediate appellate court).
- The Court of Appeals affirmed the trial court's judgment.
- Appellant (as appellant) then filed a petition for discretionary review with the Texas Court of Criminal Appeals (the state's highest court for criminal cases), which the court granted.
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Issue:
Is the evidence legally sufficient to support a conviction for attempted sexual performance by a child when the intended 'child victim' was a non-existent persona created and portrayed by an adult male undercover police officer?
Opinions:
Majority - Holland, J.
Yes. The evidence is legally sufficient because this case presents a scenario of factual impossibility, which is not a defense to a criminal attempt. Legal impossibility occurs when the intended act, even if completed, would not be a crime. Factual impossibility, conversely, exists when the actor’s objective is forbidden by law, but they are prevented from completing the crime by a physical or factual condition unknown to them, such as the victim being a police officer instead of a child. Here, Chen's goal—engaging in a sexual performance with a 13-year-old—is a crime. The only reason he could not complete it was due to a fact unknown to him: that 'Julie' was not a real child. Because Chen possessed the specific intent to commit the crime and took an act amounting to more than mere preparation (arranging the meeting, reserving a room, driving to the location with condoms), his conviction for the attempt is valid.
Analysis:
This case solidifies the distinction between legal and factual impossibility in Texas criminal law, affirming that factual impossibility is not a defense to an attempt crime. The court's focus on the defendant's specific intent ('mens rea') and the substantial steps taken reinforces that the gravamen of an attempt offense is the defendant's criminal purpose and conduct, not the actual possibility of success. This decision is particularly significant for law enforcement, as it validates the use of undercover online sting operations to prosecute individuals seeking to exploit children, even when the 'child' is a fictional persona created by an officer.
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