Shane Byron Tracy v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 8, 2024
• Docket: 07-23-00332-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00332-CR

SHANE BYRON TRACY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 66th District Court Hill County, Texas1 Trial Court No. F312-20, Honorable Philip Robertson, Presiding by Assignment

October 8, 2024 OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Shane Byron Tracy, appeals his conviction for the offense of sexual

performance by a child2 and resulting sentence of sixty years’ incarceration and a $10,000

fine. We reverse the trial court’s judgment and render a judgment of acquittal.

1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the transferor court and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. 2 See TEX. PENAL CODE ANN. § 43.25(b). FACTUAL AND PROCEDURAL BACKGROUND

R.S. met her father, Appellant, when she was fourteen years old. When she met

him, she was aware that he had recently been released from prison, but she was unaware

of the nature of the offense for which he was incarcerated.3 After this meeting, R.S. and

Appellant met sporadically when they would drive around or go to restaurants, but R.S.

“didn’t spend that much time with just him.”

In May of 2020, when R.S. was nearing her eighteenth birthday, Appellant asked

her to spend the night with him. After R.S. agreed, Appellant picked her up in Coppell

and drove her to Appellant’s mother’s house in Hillsboro. R.S. and Appellant decided to

set up a tent in the backyard and pretend like they were camping. While in the tent, R.S.

and Appellant drank wine and smoked marijuana. Eventually, R.S. and Appellant fell

asleep with Appellant holding R.S. Afterward, R.S. felt “fine” and “good” about the

campout and her mother came and picked her up.

On May 15, 2020, R.S. reached out to Appellant to see if she could again stay with

him overnight. R.S. and her boyfriend had gotten into an argument and R.S. believed

that he was likely to break up with her. She wanted to stay with Appellant because she

knew that Appellant “had weed” and she wanted to forget about the argument with her

boyfriend. Appellant again picked R.S. up in Coppell and drove her back to Hillsboro.

After eating dinner, R.S. and Appellant went to Appellant’s room. R.S. played video

games while Appellant was “on his phone.” After a short period of time, Appellant began

smoking marijuana, which he offered to R.S. R.S. and Appellant then smoked marijuana

3 Subsequently, R.S. learned that Appellant had been convicted of indecency with a child.

2 and drank wine throughout the night. After running out of wine, Appellant and R.S. went

to a convenience store, where Appellant bought more alcohol. It had started to rain when

they arrived at the house. Before entering the house, Appellant tried to dance with R.S.,

claiming that it was romantic. Once back in Appellant’s room, they drank the alcohol while

they lay on Appellant’s bed. Eventually, Appellant tried to kiss R.S.’s neck and stick his

tongue in her mouth. Appellant felt R.S.’s breasts under her bra and put his hand into her

pants and touched her clitoris. R.S. resisted Appellant’s advances, both physically and

verbally. Upon penetrating R.S.’s vagina, Appellant pulled his hands out of R.S.’s pants

and began panicking, saying that he should not have done what he did. Appellant then

left the room and did not return until the morning. When he did return, R.S. was still sitting

on the bed with her hands over her face and shaking. R.S. stated that she was in shock.

Later, R.S.’s mother picked her up.

Some days later, R.S. told her sister what Appellant had done to her. R.S.’s sister

told R.S.’s mother. R.S.’s mother then took R.S. to the Hillsboro Police Department to

report the sexual assault. R.S. was examined by a Denton County Sexual Assault Nurse

Examiners Team. Eventually, Appellant was arrested.

The State charged Appellant with one count of sexual assault and one count of

sexual performance by a child. The State eventually dropped the sexual assault count

and proceeded only on the sexual performance by a child count. After trial, the jury

convicted Appellant and returned a sentencing verdict of sixty years’ incarceration. The

trial court entered judgment reflecting the jury’s verdicts. From this judgment, Appellant

timely appealed.

3 By his appeal, Appellant presents two issues. By his first issue, Appellant

contends that the evidence is insufficient to support his conviction for sexual performance

by a child. Appellant, through his second issue, alternatively contends that there is a

material variance in the verdict. Because our resolution of Appellant’s first issue is

dispositive, we will not address his second, alternative issue. See TEX. R. APP. P. 47.1.

SUFFICIENCY OF THE EVIDENCE

By his first issue, Appellant contends that the evidence is insufficient to support his

conviction for sexual performance by a child. Specifically, Appellant contends that the

evidence does not support the finding that Appellant induced R.S. to engage in sexual

conduct.

The standard we apply in determining whether the evidence is sufficient to support

a conviction is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under that standard, we consider all the evidence in the light most favorable to

the verdict and determine whether, based on the evidence and reasonable inferences

therefrom, a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d

616, 622 (Tex. Crim. App. 2017). Sufficiency of the evidence is measured against the

elements of the offense as defined by a hypothetically correct jury charge. Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). In our review, we must evaluate all the evidence in the record,

both direct and circumstantial, regardless of whether that evidence was properly or

improperly admitted. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); 4 Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We are also required to

defer to the jury’s credibility and weight determinations because the jury is the sole judge

of the witnesses’ credibility and the weight to be given their testimony. Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record supports conflicting

inferences, we presume that the jury resolved any conflicts in favor of the verdict and will

defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App.

2012).

Inherent in Appellant’s argument is a contention related to the proper construction

of the sexual performance by a child statute. In construing a statute, we seek to effectuate

the intent or purpose of the legislature in enacting it. Harris v. State, 359 S.W.3d 625,

629 (Tex. Crim. App. 2011). We look first to the statute’s literal text and read the words

and phrases in context and construe them according to the rules of grammar and usage.

Id. We must presume that every word in a statute has been used for a purpose and that

each word, phrase, clause, and sentence should be given effect if reasonably possible.

Id. “When there is no definition or technical meaning provided for a word or phrase, the

terms are typically given their plain and ordinary meaning.” Edwards v. State, 666 S.W.3d

571, 575 (Tex. Crim. App. 2023) (quoting TEX. GOV’T CODE ANN. § 311.011(a), as

providing that, “[w]ords and phrases shall be read in context and construed according to

the rules of grammar and common usage.”).

The record evidence in the current case sufficiently proves that Appellant

committed sexual assault by penetrating R.S.’s sexual organ without her consent. See

TEX. PENAL CODE ANN. § 22.011(a)(1)(A). However, the State elected to dismiss its sexual

5 assault charge against Appellant. Consequently, it was obligated to prove Appellant was

guilty of sexual performance by a child, as that was the only remaining charge.

A person commits the offense of sexual performance by a child “if, knowing the

character and content thereof, he employs, authorizes, or induces a child younger than

18 years of age to engage in sexual conduct or a sexual performance.” TEX. PENAL CODE

ANN. § 43.25(b). “‘Sexual conduct’ means sexual contact, actual or simulated sexual

intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic

abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast

below the top of the areola.” Id. § 43.25(a)(2). “Sexual contact” means “any touching of

the anus, breast, or any part of the genitals of another person with the intent to arouse or

gratify the sexual desire of any person.” Id. § 43.01(3); see id. § 43.25(a)(7) (applying

definition found in section 43.01 to sexual performance by a child offense).

In the present case, it is not alleged that Appellant employed or authorized R.S. to

engage in sexual conduct. Rather, the issue in this case regards whether Appellant

induced R.S. to engage in sexual conduct.4 “Induce” is not defined by the Penal Code.

Dornbusch v. State, 156 S.W.3d 859, 866 (Tex. App.—Corpus Christi 2005, pet. ref’d).

Courts have adopted the word’s meaning in common usage, which is “to move and lead

by persuasion or influence” or “to bring about by influence.” Baker v. State, No. 10-11-

00449-CR, 2012 Tex. App. LEXIS 9345, at *30–31 (Tex. App.— Waco Nov. 8, 2012, no

pet.) (mem. op., not designated for publication) (citing Bell v. State, 326 S.W.3d 716, 720

(Tex. App.—Dallas 2010, pet. ref’d, untimely filed), and Dornbusch, 156 S.W.3d at 866).

4 Appellant does not dispute the sufficiency of the evidence establishing any element of the offense

other than whether he induced R.S. to engage in sexual conduct.

6 “Persuade” means “to move by argument, entreaty, or expostulation to a belief, position,

or course of action.” Persuade, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.

2003). “Influence” means “the power or capacity of causing an effect in indirect or

intangible ways.” Influence, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed.

2003). Considering the definitions of these terms together, inducement requires an effect

on the induced party’s course of action. Thus, the State had to prove not only that

Appellant attempted to persuade or influence R.S. into sexual conduct but, also, that his

attempt was successful, causing her to at least acquiesce to his advances. The Austin

Court of Appeals has articulated that the State is required to prove that the inducement

changed the child’s conduct. See Golceff v. State, No. 03-13-00809-CR, 2016 Tex. App.

LEXIS 13565, at *16–17 (Tex. App.—Austin Dec. 22, 2016, pet. ref’d) (mem. op., not

designated for publication) (finding evidence sufficient to prove sexual performance by a

child based on “evidence support[ing] the jury’s findings that [the defendant] had asked

[the child] to engage in sexual relations with a dog and that [the child] had complied with

[the defendant’s] requests.” (emphasis added)); see also Dornbusch, 156 S.W.3d at 868

(defendant “used persuasion and influence to bring about [the child’s] sexual conduct”

(emphasis added)).

Appellant did not specifically request that R.S. engage in sexual conduct with him.5

However, the statute does not require that the inducement be “verbal and explicit.” Id. at

867. A defendant can induce a child to engage in sexual conduct by “construct[ing] a

situation in which [the victim] was unlikely to have the ability to refuse [the defendant’s]

5 The evidence reflects that Appellant forced himself on R.S. Forcing a person to participate in sexual conduct does not constitute an inducement. See Dornbusch, 156 S.W.3d at 868 (“Dornbusch seems to read the word ‘induce’ as meaning ‘force,’ but we do not equate the terms.”).

7 advances.” Id. In Baker, the transferor court concluded that the defendant created such

a scenario. 2012 Tex. App. LEXIS 9345, at *31–32. Baker held a position of parental

authority over the child.6 Id. at *31. Baker told the child that if she did not have sex with

him, he would tell her mother, who would “hate her and kick her out of the house.” Id. He

also told the child that, if she refused his sexual advances, she would not get to see her

brothers and sisters again. Id. at *32. The court concluded that, under this scenario, the

child “believed that she did not have any choice but to have sex with Baker.” Id. In

Dornbusch, a teacher took two teenage students to an out-of-town motel on his own

initiative, provided them alcohol, urged them to undress and get in a hot tub with him, and

made unsolicited sexual advances toward them. Dornbusch, 156 S.W.3d at 867. The

court concluded that this was a scenario where the girls would be unlikely to have the

ability to refuse the teacher’s advances. See id. (the victim “was miles away from school

(where she was supposed to be) and her only alternative to acquiescing to Dornbusch’s

advances was to call someone to pick her up from an out-of-town motel, after she had

consumed alcohol in the middle of a school day” (parenthetical in original)).

Our review of the record leads us to conclude that the evidence does not establish

that Appellant created a scenario in which R.S. would be unlikely to refuse Appellant’s

advances. See id. While Appellant is R.S.’s biological father,7 she only met him when

she was fourteen. Before the time of the assault, R.S. “didn’t spend that much time with

just him.” Consequently, nothing in the record reflects that Appellant is in any position of

6 While Baker was not the child’s biological father, he treated the child as if she was his own,

including making and enforcing household rules. 7 The record reflects that Appellant had voluntarily relinquished his parental rights to R.S.

8 authority over R.S. Appellant did not invite R.S. to spend the night with him when the

assault occurred; rather, either R.S. or her mother suggested that R.S. stay the night with

Appellant. Consequently, Appellant was at a location where she was supposed to be.

Because Appellant did not explicitly proposition R.S., he also did not make any explicit or

implied threats or promises to her. Instead, Appellant forced himself on R.S. without first

urging her to engage in sexual conduct with him. The only factors present in both the

current case and in Dornbusch are that the assaults occurred out of town8 and the

defendants provided the minors alcohol. We are unwilling to conclude that providing

alcohol and/or drugs to a child, taken alone, is sufficient to create a scenario in which the

child would not likely feel able to refuse the advances of an adult. Further, that this was

not a scenario in which R.S. felt like she could not refuse Appellant’s advances is

evidenced by the fact that she did resist. We conclude that the evidence is insufficient to

establish that Appellant induced R.S. to engage in sexual conduct.

Further, as stated above, the State was required to establish that Appellant’s

attempts to induce R.S. to engage in sexual conduct were successful and caused her to

relent to his advances. See Golceff, 2016 Tex. App. LEXIS 13565, at *16–17 (finding

evidence sufficient to prove sexual performance by a child based on both defendant’s

efforts to induce and child’s compliance with defendant’s requests); see also Dornbusch,

156 S.W.3d at 867 (finding defendant’s persuasion brought about child’s sexual conduct).

When Appellant “tried pushing his tongue in [R.S.’s] mouth,” she kept her mouth closed

to prevent him from doing so. When Appellant began groping R.S., she froze while she

8 Unlike Dornbusch, where the teacher took the children out of town presumably to isolate them,

Appellant simply lived in a different town from R.S.

9 was trying to understand what was happening. However, she told Appellant that she was

menstruating in an effort to prevent him from continuing his assault. This evidence

establishes that R.S. resisted Appellant’s attempts to induce her to engage in sexual

conduct. As such, the evidence shows that Appellant’s attempts to induce R.S. were

unsuccessful because R.S. did not relent to his advances.

Because the record evidence does not establish that Appellant induced R.S. to

engage in sexual conduct, as required by the statute, we conclude that the evidence is

insufficient to support Appellant’s conviction for sexual performance by a child. We

sustain Appellant’s first issue.

CONCLUSION

While the State brought two charges against Appellant, it chose to dismiss the

sexual assault charge and proceed only on the sexual performance by a child charge.

Having found the evidence insufficient to support this charge, we reverse the judgment of

conviction and render a judgment acquitting Appellant. See TEX. R. APP. P. 43.2(c).

Judy C. Parker Justice

Publish