### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00086- CR

Na ve e d Sham s, App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 390TH JUDICIAL DISTRICT NO. 20326 63, H ONO RAB LE JULIE H. K OCUREK , JUDGE PRESIDI NG

O P I N I O N A jury found appe llant Navee d Shams guilty of cr iminal soli citation of a minor a nd
as s es s ed p u nishment at thirteen y ear s’ imprisonment. See Te x. Pe n. Cod e An n. § 1 5. 03 1 ( Wes t 2003). Shams contends that the St ate f ailed to prove that he believe d the per son solicited was under sevente en y ear s of ag e. We will affir m the conviction. Sha ms c ha lle ng e s b oth

the le g a l a nd fa c tua l su ff

ic ie nc y of the e vid e nc e . U nd e r b oth standards of

revie w, the question presented is whethe r a r ational trier of fac t could have f

ound the essential elements of the offe nse bey ond a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 324 (1 97 9) (l e g a l su ff

ic ie nc y ); Gr iff in v . S tat e , 614 S.W .2d 155, 158-59 (Te x . Crim. App. 1981) (leg al
su ff ic ie nc y ); Z u n i g a v . Sta te , 144 S.W .3d 477, 484 (Tex. Crim. App. 2004) (fa ctual suff iciency ). I n a le g a l suf fi c ie nc y re vie w, a ll the e vid e nc e is r e vie we d in the lig ht m os t f

a vo ra ble to t he ve rd ic t;2

it is assumed that the trier of fac t r esolved conflicts in the testimony , weig hed the e vidence , and dre w
rea sonable infe rences i n a manne r that supports the ver dict. Gr iff in , 614 S.W .2d at 159 (c iting Jack son , 4 4 3 U
. S
. a t3 1 8

- 1 9 )
. In a f a c tu a l s u f f i c i e n c y r e v i e w , a l l t h e e v i d e n c e i s c o n s i d e r e d e qu a l l y, including the testimony of defense witnesses and the exis tence of alter native hy potheses. Orona v. Sta te , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). Due defe renc e must be ac corde d the fa ct finder ’s deter

minations, particularly

those conc erning the weig h t an d credibilit y of the
e vid e nc e , b ut t

he re vie wi ng c ourt

may disagree w iththe re su lt i n o rd e r t o p re ve nt a manif e st injusti ce. J

oh ns on v . S

tat e , 23 S.W .3d 1, 9 (Tex. Crim. App. 2000). The evide nce w ill be deemed fac tually insufficient to sustain the convic tion if the proof of guil t is too weak or the contra ry evidenc e is too strong to suppor t a finding of g uilt bey ond a re asonable doubt. Zuniga , 144 S.W .3d
a t 48 4- 85 ; see J

ohnson , 23 S.W .3d at 11. David Torsie llo, a cy

ber crimes investigator for the Texas Attorney Gene ral, testified that on J une 9, 2003, he log g ed into an interne t chat room unde r the scr een na me “Amy 512817” (her eaf ter “ Amy ”). At that time, he cr eate d a prof ile for “ Amy ” that g ave he r ag e as e ighte en,
oc c up a tio n a s st ud e nt, mari ta l st a tus a s si ng le , a nd loc a tio n a s T e xas. Un de r t he he a din g “ la te st news,” T o rs i el lo wrote, “ Really 13. Ihad to put 18.” Torsie llo ex plained that it is common for te e na g e rs to “ pu t an o lde r a g e tha n th e y re a lly a re ” in t he ir pr of ile s. About thirty

minutes aft er h e l o g g ed on, “A my ” re ceive d an instant messag e fr om someone with the scr een na me “manina

ustin2003.” There is no dispute that “maninaustin2003” w as Shams, a nd

we wi ll u se his re a l na

me he re a ft e r. Shams be g a n th e on lin e c on ve rs a tio n b y g ra ph ic a lly descr ibing a

sex act he would like to perf orm with “Amy .” Af

ter a fe w ex chang es with “Amy ,”The rec ord contains arc hived transcr ipts of the internet conver sations. We quote them using 1 the orig inal spelling a

nd punctuation. 3 Shams asked, “w hat is ur body like? ” “Amy ” answ ere d, “I stay in shape. . im only

13 so im in good 1 shape.” After

Shams provided a de scription of himself, he a nd “Amy ” beg an to discuss various sex acts a nd the extent of “Amy ’s” se x ual experienc e. “A my ” explained t hat she wa s inex perie nced, but
sa id s he wa s in te re ste d in

me e tin g Sha

ms f or se x. Th e y dis c us se d whe re a nd wh e n a me e tin g c ou ld take plac e, but the chat session ended without any firm plans being made. Torsiello next logg ed on as “ Amy ” on June 23, 2003. Once a g ain, Shams contac ted “Amy ” by

instant me ssag ing. The c onversation quickly turned to sex, with S hams descr ibing how he and “ Amy ” could pe rfor m oral sex with ea ch other. “Amy ” asked, “would u take it r eal slow a nd ez with me .
. cuz I havnet.” Shams sa id he would and asked “Amy ” her ag e. When she re plied, “u don’t reme mber? ? ” he a nswere d, “18 I

think? ? ? ” “A my ” re sponded, “im13.” L ater in the
conver sation, Shams told “Amy ” that he w as twenty -seve n. She replied, “ well u no im 13 . . .” and then adde d, “is that ok.” Shams said, “tha t is fine with me.” Shams g ave “ Amy ” a link to a ph oto g ra phhe sa id w a s h im. Th e ph oto g ra phwa s o f a

man we a ri ng on ly br ie fs a nd wi th a vis ibl e
e re c tio n. “ Am y ,” in t

ur n, g a ve Shams a link to a pho tog ra ph of a fu lly c lot he d th ir te e n- y e a r- old

g ir l, who was the daug hter of one of Torsiello’s colleag ues. S hams told “Amy ” she w as pre tty and said,

“ Iwi shIc ou ld lic k y our pus sy tod a y .” “ Am y ” tol d Sh a ms tha t he r e ig hte e n- y e a r- old sis te r w ou ld be able to give her a

ride to a near

by g roce ry store on the following Wednesday , with “Amy ” using the excuse that she wa s meeting friends. The meeting was a rra ng ed, bu t S hams did not keep the
a pp oin tme nt.4 “ Am y ” re tur

ne d to the c ha t ro om on July 10 , 20 03
. Whe n c on ta c te d b y Shams, “Amy ” complaine d that he had been ly ing to he r about his picture and mee ting he r. Shams assure d “Amy ” that he w as “a

g ood l o o k i n g gu y ” and said he “w ould love to pleasure ur pussy and ass.” They ag ree d to meet that afte rnoon at some softball fields. “Amy ” tol d Shams what she w ould be
wea ring , and Shams descr ibed his car and clothing. “Amy ” told Shams that the other me mbers of her f amily w e r e o u t o f to w n a n d th a t th e y c o u ld r e tu r n to h e r h o u s e . Sh e to ld Sh a ms to bring condoms. Shams asked, “ do u want me to fuc k u also? ” “Amy ” replied, “we ll I thot u wanted to,” then aske d, “have u been w ith a y oung 1 like me b4.” When Shams said he ha d not, “Amy ” aske d him , “ we ll u re a lly do n’ t mind that im on ly 13
. . . re a lly .” Shams an sw e re d, “ no pe .” Shams t old

“ Am y ” that he wa

nte d h e r to “ su c k my c oc k. ” “ Am y ” sa id s he wo uld if Shams w ou ld p ro mis e to “be e z with m e.”

As arr ang ed, Shams dr ove to the softball fields that af ternoon. He was a

rre sted by
wa iti ng of

fi c e rs . H e tol d th e m th a t he ha d c ome to t he fi e lds to p lay

c ri c ke t. Shams testified that he routinely used interne t chat rooms to eng ag e in fanta sy cy ber sex. He said that he had chatted in this wa y with at least one thousand individuals who he believed
wer e adult women, a dding that he had ne ver knowingly chatted with a minor. Shams testified that he had ha d fac e-to-f

ace meeting s with a

bout f ifteen women he met on the inter net and that most of those meeting s had re sulted in sex ual ac tivity
.

Shams admitted having the online conve rsations with “Amy ,” but he ins isted that he had re lied on her pr ofile stating that she wa s eig hteen y ear s old. He said that he ha d assumed that “Amy ” wa s an adult woman who was prete nding to be a y oung g irl, and therefor e he did not believe her w hen she sa id that she was only thirteen. Ac cording to Shams, he did n o t b eli eve that the5

photogr aph of the thirteen-y ear -old g irl was in fac t “Amy .” He testified that he ha d expected to meet
a n a du lt wo man on the a ft e rn oo n o f Jul y 10 , a nd that he wo uld

have le ft ha d th e pe rs on

pr ov e d to be a minor. A psy chiatrist and a psy cholog ist als o t estified for the def ense. B oth were of the opinion, based on their testing and intervie ws, that Shams was not an “internet t rave ler,” that is, a p e r s o n w h o u s e s th e in te r n e t t o ta r g e t m in o r s h e c a n me e t f o r s e x. Shams arg ues that the State fa iled to cont ra d i ct his testimony that he believe d that

“ Am y ” wa s a rol e -p lay ing a du lt wom a n, a nd he po int s to To rs ie llo ’s a c kn ow le dg me nt d ur ingc ro ssexamination that persons in internet cha t rooms usually do not use their re al names, a g es, or e ven g ender s. But the jury , as t rier of fac t, was free to discount Shams’s testimony in light of the e vidence that “Amy ” re peate dly

told him t hat she wa s only thirteen. Applying the appropr iate standa rds of revie w, we hold that a rational trier of fa ct could find be y ond a re asonable doubt that Shams believed that th e pe rs on

he so lic ite d w a s y oung e r t ha n s e ve nte e n. B e c a

us e Shams d oe s n ot oth e rw ise challeng e the suff

iciency of the e vidence , his points of error a re ove rruled. The judg ment of convic tion is affirmed.

__________________________________________ Be a Ann Smith, J ustice Be fore J ustices B . A. Smith, P atterson a nd Pury ear Affir med Filed: June 2, 2006 D o N ot P ublish Released for publication J uly

21, 2006. Tex. R. App. P . 47.3(c)
.