Appellant appealed his conviction and subsequent affirmance regarding solicitation of a minor in violation of Tex. Penal Code Ann. § 15.031(b)(2004 and 2006). In 2001 an ICAC detective was proactively engaging in online chats assuming the character “Molly Shaw” a fifteen year old girl. In 2004 “Molly” was communicating with appellant mainly related to appellant attempting to persuade “Molly” to have sexual intercourse with him. “Molly” gave her age as 15, and appellant gave his age as approximately three years older (which was accurate). After “Molly” was not persuaded to have sex with appellant, the conversations became fewer. The two did continue to online chat for more than two years. In 2006, “Molly” finally agreed to let appellant come to her home for the purpose of having sexual intercourse, and appellant agreed to bring the condoms. The two agreed to meet at the mailboxes of her apartment. Upon appellant’s arrival, he was arrested, and was found to be carrying multiple condoms.
Affirmative Defense Attack: At appellant’s trial, Appellant argued that he should have received an instruction on the affirmative defense set out in § 22.011(e). As it relates to this case, that affirmative defense would negate a finding of guilt for sexual assault of a child if the ages of the defendant and victim are within three years of each other. The trial court rejected this argument, as did the appellate court, holding this affirmative defense did not apply in solicitation cases. The appellate court found that this defense only applied in actual sexual assault of a child cases. In the alternative, the appellate court held that the language of this affirmative defense required as a condition precedent, the age of a child (in which to gauge the three years). Since “Molly” was not a real child, there was no age to gauge from.
It is well settled that a defendant has a right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence. This rule is designed to ensure that the jury, not the judge, decides the credibility of the evidence.
The statute looks to the facts as the defendant believes them to be. The within-three-years affirmative defense negates an offense from having been committed under § 22.011. Thus, if the circumstances surrounding the defendant’s conduct were such that he believed the minor’s age to be within three years of his own, then he would not have committed an offense at all, provided he raised and proved the within-three-years affirmative defense. Therefore, the court of appeals’ holding that the affirmative defense in § 22.011(e) is not applicable in a prosecution under § 15.031(b) is contrary to the plain language of that statute.
Judgment reversed and remanded