COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00371-CR

NO. 02-15-00372-CR

PAUL SULAK APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NOS. 1348546D, 1348549D

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Paul Sulak appeals two convictions for sexual performance by a 

child under fourteen years of age.2 See Tex. Penal Code Ann. § 43.25(b), (c) 

 

1See Tex. R. App. P. 47.4.

2Sulak was also convicted for one count of indecency with a child by 

contact for which he was sentenced to six years’ imprisonment. He does not 

challenge that conviction on appeal.
2

(West 2011). The jury assessed Sulak’s punishment at seventeen years’ 

confinement on each of the convictions for sexual performance by a child under 

fourteen years of age; the trial court sentenced Sulak accordingly and ordered 

the sentences to run concurrently. In two points, Sulak argues that the evidence 

is insufficient to support his two convictions because the State failed to prove that 

the actors doing the touching (i.e., the children—Tom and Liz)3 did so with the 

intent to arouse or gratify the sexual desire of any person. We will affirm.

II. FACTUAL BACKGROUND

Sulak’s two indictments alleged,4in pertinent part, that he did

THEN AND THERE INTENTIONALLY OR KNOWINGLY, 

KNOWING THE CHARACTER AND CONTENT THEREOF, 

EMPLOY, AUTHORIZE OR INDUCE A CHILD YOUNGER THAN 14 

YEARS OF AGE, NAMELY, [LIZ] TO ENGAGE IN SEXUAL 

CONDUCT OR A SEXUAL PERFORMANCE, TO-WIT: DIRECTING 

[TOM], A CHILD YOUNGER THAN 14 YEARS OF AGE, TO 

CONTACT THE GENITALS OF [LIZ], A CHILD YOUNGER THAN 

14 YEARS OF AGE, WITH A HAIRBRUSH[]

 

3To protect the anonymity of the child victims, we will use aliases for the 

children and their mothers. See McClendon v. State, 643 S.W.2d 936, 936 n.1 

(Tex. Crim. App. [Panel Op.] 1982).

4The sole difference between the two indictments––and consequently the 

application paragraphs in the court’s charges––was which child Sulak had 

induced to engage in sexual conduct; in the case underlying appeal 02-15-

00371-CR, the indictment alleged that Sulak had induced Liz to engage in sexual 

conduct, and in the case underlying appeal 02-15-00372-CR, the indictment 

alleged that Sulak had induced Tom to engage in sexual conduct. See Eubanks 

v. State, 326 S.W.3d 231, 242 & n.3 (Tex. App.—Houston [1st Dist.] 2010, pet. 

ref’d) (noting that sexual performance by a child is a conduct-oriented offense 

and that each victim constitutes an allowable unit of prosecution), cert. denied, 

563 U.S. 1033 (2011).
3

and that he did

THEN AND THERE INTENTIONALLY OR KNOWINGLY, 

KNOWING THE CHARACTER AND CONTENT THEREOF, 

EMPLOY, AUTHORIZE OR INDUCE A CHILD YOUNGER THAN 14 

YEARS OF AGE, NAMELY, [TOM] TO ENGAGE IN SEXUAL 

CONDUCT OR A SEXUAL PERFORMANCE, TO-WIT: 

CONTACTING THE SEXUAL ORGAN OF [LIZ], A CHILD 

YOUNGER THAN 14 YEARS OF AGE, WITH A HAIRBRUSH.

During the trial, the jury heard testimony from the two child victims—Tom, 

Sulak’s son, and Liz, Sulak’s niece—both of whom were seven years old at the 

time of the trial. They testified that they were four or five years old at the time the 

incident occurred. Liz testified that “Uncle Paul” instructed Tom to tell her to pull 

down her pants, and when she eventually complied, Uncle Paul told Tom to 

brush Liz’s “pee-pee” with a blue Cinderella brush, and he did. Tom similarly 

testified that he used a Cinderella hairbrush to touch Liz’s “[v]agina and butt” 

because his father made him. Liz’s trial testimony was consistent with the 

information that she provided to the sexual assault nurse examiner who saw Liz 

one month after the incident. Tom’s trial testimony was consistent with the 

information he provided to the forensic interviewer who interviewed him less than 

one month after the incident. Sulak denied all of the children’s accusations and 

testified that Liz’s mother Rebecca had caught Tom on top of Liz “with his hand 

in between her legs in her private area” and that when Sulak and Rebecca 

questioned the children about where they had learned this behavior, Tom said 

that he had learned it from “Mommy and [her boyfriend] David.” Sulak’s 
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testimony did not line up with the testimony given by Rebecca, to whom Liz made 

an outcry. 

III. STANDARD OF REVIEW

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the verdict to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 

448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). However, when an 

appellant challenges only the sufficiency of a specific fact that is not an essential

element of the offense, we need not consider the sufficiency of the evidence 

supporting that fact, nor must we analyze the sufficiency of the evidence to 

support the essential elements of the offense. See Campbell v. State, 139 

S.W.3d 676, 686 (Tex. App.—Amarillo 2003, pet. ref’d); Edwards v. State, 97 

S.W.3d 279, 290 n.7 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Briones 

v. State, 76 S.W.3d 591, 596 (Tex. App.—Corpus Christi 2002, no pet.).
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IV. APPLICABLE LAW

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 fourteen years of age to engage in sexual conduct or a sexual 

performance. Tex. Penal Code Ann. § 43.25(b). “Sexual conduct” is defined as

including sexual contact. Id. § 43.25(a)(2). “Sexual contact” is defined in the

public indecency statute as any touching of the anus, breast, or any part of the 

genitals of another person with intent to arouse or gratify the sexual desire of any 

person. Compare id. § 43.01(3) (West 2011), with id. § 21.11(c)(1) (West 2011) 

(defining “sexual contact” for the offense of indecency with a child any touching 

by a person, including touching through clothing, of the anus, breast, or any part

of the genitals of a child if committed with the intent to arouse or gratify the 

sexual desire of any person).

The phrase “knowing the character and content thereof” establishes the 

necessary mens rea of the offense of sexual performance by a child. See id.

§ 43.25(b); Dornbusch v. State, 156 S.W.3d 859, 869 (Tex. App.––Corpus Christi 

2005, pet. ref’d). To prove the offense of sexual performance of a child, the 

State is required to prove that the defendant knows the conduct induced or 

directed is sexual in nature. Dornbusch, 156 S.W.3d at 869.

V. ANALYSIS

Sulak argues that because “[t]he jury charge in accordance with the 

indictment[s] defined sexual performance as inducing a child to engage in sexual 
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conduct”; because “sexual conduct” is defined in the charge as “sexual contact”;

and because “sexual contact” is defined in the charge as “any touching by a 

person, including touching through clothing, of any part of the genitals of a child, 

with the intent to arose or gratify the sexual desire of any person,” the State was 

required to prove that when Tom and Liz engaged in sexual contact they had the 

intent to arouse or gratify the sexual desire of any person. See Tex. Penal Code 

Ann. §§ 21.11(c)(1), 43.01(3), .25(a)(1), (2) (setting forth definitions). But to 

juxtapose the statutory offense and definitions in the manner proposed by Sulak 

would nullify the offense. That is, under Sulak’s reasoning, so long as the child 

complainant who was induced to engage in sexual contact had no intent to 

arouse or gratify the sexual desire of another person, the offense of sexual 

performance of a child by sexual conduct constituting sexual contact could never 

be established. See Flowers v. State, 815 S.W.2d 724, 729 (Tex. Crim. App. 

1991) (stating that “[b]ecause a statute should be interpreted to be effective,” it 

would not construe a statute in such a way that its language would be nullified); 

see also Griffith v. State, 116 S.W.3d 782, 785 (Tex. Crim. App. 2003) (“If one 

reasonable interpretation yields absurd results while the other interpretation 

yields no such absurdities, the latter interpretation is preferred.”). Moreover, 

courts “have long recognized that children lack the experience and mental 

capacity to appreciate the nature and consequences of sex[] and therefore 

cannot knowingly consent to sex”; consequently, children cannot form the intent 

to arouse or gratify the sexual desire of any person. See In re B.W., 313 S.W.3d 
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818, 823 (Tex. 2010) (holding that juvenile could not legally consent to sex and 

thus could not be adjudicated delinquent for offense of prostitution); Smallwood 

v. State, 471 S.W.3d 601, 607 (Tex. App.—Fort Worth 2015, pet. ref’d) (“[A] child 

cannot consent to sexual contact or intercourse.”). Accordingly, we hold that the 

offense of sexual performance by a child does not require the State to prove 

beyond a reasonable doubt that the children who were employed, authorized, or 

induced to engage in sexual conduct constituting sexual contact possessed the 

intent to arouse or gratify the sexual desire of any person. See Tex. Penal Code 

Ann. § 43.25(b); Dornbusch, 156 S.W.3d at 869. 

Because Sulak’s two sufficiency challenges attack the lack of evidence to 

prove a fact that is not an element of the offense of sexual performance of a 

child, we overrule them. See Tex. Penal Code Ann. § 43.25(b); Bell v. State, 326 

S.W.3d 716, 721 (Tex. App.—Dallas 2010, pet. dism’d, untimely filed) (declining, 

in appeal from conviction for sexual performance of a child, to review sufficiency 

of evidence showing defendant was aware of complainant’s age because 

defendant’s awareness of child’s age was not an element of the offense and 

because “we need not evaluate the sufficiency of evidence supporting an 

irrelevant fact”); Campbell, 139 S.W.3d at 686; Edwards, 97 S.W.3d at 290 n.7; 

Briones, 76 S.W.3d at 596; see also Moreno v. State, No. 08-08-00281-CR, 2011 

WL 809951, at *4 (Tex. App.—El Paso Mar. 9, 2011, no pet.) (not designated for 

publication) (overruling appellant’s issue because his argument did “not 
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challenge the sufficiency of the evidence supporting any specific element of the 

actual offense for which he was convicted”).

VI. CONCLUSION

Having overruled both of Sulak’s points and because Sulak raises no other 

sufficiency challenges that are appropriately directed to the essential elements of 

the offense of sexual performance of a child under fourteen, we affirm the trial 

court’s judgments.

/s/ Sue Walker

SUE WALKER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 23, 2016