Hudson v. State

737 S.W.2d 838, 1987 Tex. App. LEXIS 8515

• Court: Court of Appeals of Texas
• Decided: May 20, 1987
• Docket: No. 05-86-00662-CR
• Status: Published

Opinions

McCLUNG, Justice.

Appellant was convicted of solicitation of a child, given a 365-day sentence, and fined $2,000. He asserts that the evidence was insufficient. We agree. Accordingly, we reverse the judgment of the trial court and render a judgment of acquittal. _

Complainant testified that she was eleven years old at the time of the alleged offense. Accompanied by her older brother and a seventeen-year-old female friend of the family, complainant arrived at the location of a traveling carnival at about 10:00 p.m. She noticed appellant at different times and he appeared to be following her. Complainant’s testimony suggests that she was watching the seventeen-year-old play a game at one of the booths when she was approached by appellant. At this time, complainant’s brother was at a booth in another part of the carnival.

The exact positions of complainant and the seventeen-year-old in relation to the booth and each other at the time of the alleged incident are not clear from the record. However, the seventeen-year-old testified that complainant was three to four feet away from her when the seventeen-year-old was playing at the booth. Complainant testified that while the seventeen-year-old was playing, appellant “grabbed me by the arm and pulled me and he said he would give me $20.00 for my [genitalia] and I yanked my arm away from him.” Complainant then told the seventeen-year-old and the person attending the booth what had happened and what appellant had said. Complainant and the seventeen-year-old looked for her brother and told him. The record suggests that her brother made some attempt to locate appellant but did not succeed. Complainant also reported the incident to her mother, although it is not clear when she did so.

Complainant drew a diagram of the place where this incident allegedly occurred. The diagram depicts two booths, separated by an open walkway. In back of the booths were two trailers. Later testimony indicated that the trailers were eighteen-wheelers, probably used to haul carnival equipment. Complainant did not estimate dimensions, but she did testify that the booths were not close together. Other testimony estimated that the booths were three to four feet apart and that the trailers were three to four feet behind the booths. Complainant testified that she thought that appellant was trying to get her to the area between the booths, three or four steps away.

Complainant, the seventeen-year-old, and complainant’s mother returned to the carnival the next day. Testimony indicated that appellant was there and was watching complainant and other girls. The seventeen-year-old called the police when she saw appellant. It is not clear when appellant was arrested and charged with solicitation of a child, although the information is dated May 27,1986, five days after the alleged incident.

To find appellant guilty, the charge required the jury to find, among other things, that appellant invited complainant “to enter an enclosed area" (emphasis added). We hold that the evidence is insufficient that appellant invited complainant to enter an enclosed area. Such conduct is proscribed by the Penal Code which provides:

§ 25.06. Solicitation of a Child

(a) A person commits an offense if he entices, persuades, or invites a child younger than 14 years to enter a vehicle, building, structure, or enclosed area....

The Penal Code does not define “enclosed area.” Therefore, we may look to common usage and legislative intent to determine what conduct the statute proscribes. Howard v. State, 690 S.W.2d 252, 254 (Tex.Crim.App.1985).

An aid to ascertaining legislative intent is the rule of ejvsdem generis. Texas v. United States, 292 U.S. 522, 534, 54 S.Ct. 819, 825, 78 L.Ed. 1402 (1934). The rule here would limit “enclosed area” to objects in the same general class as vehicle, building, and structure.

The history of this Penal Code section supports a narrow interpretation of “enclosed area.” As originally passed by the Senate, section 25 made it unlawful to invite a minor “to enter any vehicle, room, house, office or other place ” for immoral purposes (emphasis added).¹ For whatever reason, this was changed in the House to the present, more restrictive language finally approved by the legislature.

A narrow interpretation of “enclosed area” is also supported by the construction of the statute. The legislature used the verb “enter” rather than “go to” or something more general. “Enter” implies the penetration of some closure rather than just movement toward some place and is, therefore, more consistent with a narrow meaning of “enclosed area.”

The common usage of “enclosed area” does not support a construction which would encompass an open walkway. A wrecking yard surrounded by a fence was held to be an enclosure in State v. Cabrera, 114 Ariz. 233, 560 P.2d 417, 419 (1977). An automobile trunk has been held to be an enclosure because it encompasses, surrounds, shuts or fences in. People v. McDonald, 26 Ill.2d 325, 186 N.E.2d 303, 306 (1962). On the other hand, a structure which had three open portals was held not to be enclosed for purposes of the burglary statute. Day v. State, 534 S.W.2d 681, 684-85 (Tex.Crim.App.1976).

The plain meaning of “enclosed area” does not comprehend an open walkway. Although enclose is a general word, an area that is enclosed is one that is fenced off, enveloped, confined, or surrounded. See Webster’s Third New International Dictionary (1981). To hold that a walkway is an “enclosed area” would do violence to the plain meaning of the statute. We would, in effect, be rewriting the statute. This we decline to do.

We hold that the evidence is insufficient to support appellant’s conviction under Penal Code section 25.06. Consequently, the judgment of the trial court is reversed and a judgment of acquittal is rendered.

McCRAW, J., files a dissenting opinion.

1 . The statute originally passed read:

(a) It shall be unlawful for any person with lascivious intent to solicit, entice, allure, persuade, or invite, or attempt to solicit, entice, allure, persuade or invite, any child under fourteen (14) years of age to enter any vehicle, room, house, office or other place for the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy or for the purpose of proposing the fondling or feeling of the sexual or genital parts of such child or the breast of such child, if the child be a female, or for the purpose of proposing that such child fondle or feel the sexual or genital parts of such person. [Emphasis added.]

SJ. of Tex. 65th Leg., Reg.Sess. 1750 (1977). This statute appears to be derived from article 535b of the old Penal Code:

It shall be unlawful for any person with lascivious intent to entice, allure, persuade, or invite, or attempt to entice, allure, persuade or invite, any child under fourteen (14) years of age to enter any vehicle, room, house, office or other place for the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy or for the purpose of proposing the fondling or feeling of the sexual or genital parts of such child or the breast of such child, if the child be a female, or for the purpose of committing an aggravated assault on such child, or for the purpose of proposing that such child fondle or feel the sexual or genital parts of such person.

repealed, Acts of 1973, 63rd Leg. p. 992 Ch. 399, § 3.