In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00011-CR

___________________________

On Appeal from the 30th District Court

Wichita County, Texas

Trial Court No. 61,049-A

Before Sudderth, C.J.; Bassel and Wallach, JJ.

Memorandum Opinion by Chief Justice Sudderth

CURTIS MICHAEL PARKS, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

Appellant Curtis Michael Parks purchased a lipstick-shaped vibrator and gave it

to his 14-year-old stepdaughter T.J. (Tina)1 with the intention of helping her

masturbate. For this, a jury convicted Parks of attempted sexual performance by a 

child. See Tex. Penal Code Ann. § 43.25. Parks appeals his conviction, challenging

(1) the sufficiency of the evidence to prove that his provision of the vibrator 

amounted to more than mere preparation, (2) the trial court’s refusal to redact certain 

portions of Parks’s video-recorded police interview, and (3) the constitutionality of 

the sexual-performance statute as applied to Parks’s case. We will affirm. 

I. Background

The facts of the case are largely undisputed. Parks purchased a lipstick-shaped 

vibrator on Amazon, he gave it to Tina, and he showed her how to turn it on. He 

later explained that he had found a clay, carrot-shaped object in Tina’s bedroom, that 

the handmade object was engraved with the word “Twinki,”

2

and that after some 

internet research, he had discovered that there was a German sex toy known as a 

twinkie. Parks claimed that, because he had found dirty underwear under Tina’s bed

1To protect the minor victim’s anonymity, we refer to her using an alias. Cf. 

Tex. R. App. P. 9.10(a)(3), (b).

2Tina later told Parks that she “had extra clay from ar[t] class and [she] didn’t 

know what to do with it, so [she] rolled it up and wrote ‘Twinki’ on it. [She] ran out 

of room for an ‘e’.” When she testified, she told the jury that the object was “a piece 

that actually fell off of the original sculpture” when she made “a wolf statute” for her 

school art class.
3

in the past, he was concerned that Tina was using the clay object to masturbate

unsafely, so he provided the vibrator as “a safer way.”

Parks voluntarily discussed his case with police, and in a video-recorded

interview, he admitted that he found Tina sexually attractive. Then, in response to a 

hypothetical question from the police, Parks indicated that if Tina were 18 years old, if 

his wife were out of the picture, and if Tina were to tell him that she wanted to have

sex with him, he “probably” would not sleep with her although it would be a “tough 

judgment call.” 

The police searched Parks’s phone, and that search—together with a search of 

Tina’s phone—revealed that, in the months leading up to the vibrator incident, Parks 

sent Tina numerous questionable text messages, many of which alluded to sexual 

matters. Multiple law enforcement officials described Parks’s text messages—and the 

actions that they referenced—as Parks “grooming” Tina for sexual abuse.

Parks was subsequently indicted for attempted sexual performance by a child

by “purchasing a lipstick vibrator for [the] child to use for the purpose of 

masturbation and providing such item to the child.” See id. §§ 15.01(a), 43.25(b). At 

trial, the primary contested issue was whether Parks intended to authorize or induce 

masturbation. Parks denied this intention and claimed that he was simply acting as a 

concerned parent by providing the vibrator for a bona fide educational or medical 

purpose. See id. § 43.25(f)(2). Parks alleged that the sexual-performance statute was 

unconstitutional as applied to him because the statute infringed on his parental right
4

to direct the sexual health and education of a child in his care. The State, meanwhile,

argued that Parks had been grooming Tina for sexual abuse and that the provision of 

the vibrator was a step toward that goal. 

After the evidence closed, the trial court denied Parks’s as-applied 

constitutional challenge to the sexual-performance statute. The jury then convicted 

Parks of attempted sexual performance, rejecting Parks’s affirmative defense that he 

had provided the vibrator for a bona fide educational or medical purpose. See id.

§ 43.25(b), (f)(2). 

II. Discussion

Parks raises three issues on appeal: (1) the sufficiency of the evidence to prove 

that his provision of the vibrator was an act amounting to more than mere 

preparation, (2) the trial court’s refusal to redact the portion of his video-recorded

police interview in which he responded to hypothetical questions about whether he

would sleep with Tina if she were 18, and (3) the constitutionality of the sexualperformance statute as applied to Parks’s purported exercise of his parental discretion.

A. The evidence was sufficient.

First, Parks argues that the evidence was insufficient to support his conviction 

because his actions—purchasing a vibrator and giving it to Tina—amounted to, at 

most, mere preparation to commit sexual performance by a child. See id. § 15.01(a). 
5

1. Sufficiency Standard of Review

In our review of the sufficiency of the evidence, we view all the evidence in a

light most favorable to the verdict to determine whether any rational factfinder could 

have found the crime’s essential elements beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 

616, 622 (Tex. Crim. App. 2017). The factfinder alone determines the evidence’s 

weight and credibility; we may not usurp that role. See Tex. Code Crim. Proc. Ann. 

art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021); Queeman, 520 

S.W.3d at 622. 

2. Essential Elements of Attempted Sexual Performance by a Child

A person commits attempted sexual performance by a child “if, with specific 

intent to commit [sexual performance by a child], he does an act amounting to more 

than mere preparation that tends but fails to effect the commission of the offense.” 

Tex. Penal Code Ann. § 15.01(a). 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.” Id. § 43.25(b). As relevant here, “[s]exual conduct” is statutorily defined to 

include “masturbation.”

3

Id. § 43.25(a)(2). The terms “employ[],” “authorize[],” and 

3“Masturbation” is not statutorily defined but is commonly understood to 

mean “erotic stimulation involving the genital organs . . . achieved by manual or other 

bodily contact exclusive of sexual intercourse, [or] by instrumental manipulation.” 

Masturbation, Webster’s Third New International Dictionary 1391 (2021).
6

“induce[]” are not statutorily defined, though, so the factfinder was free to interpret 

them according to their ordinary meanings. See State v. Bolles, 541 S.W.3d 128, 138 

(Tex. Crim. App. 2017); Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012). 

The ordinary meaning of “authorize” is “to endorse, empower, justify, or 

permit by or as if by some recognized or proper authority.” Authorize, Webster’s

Third New International Dictionary 146 (2021); see Clemens v. State, No. 05-17-00665-

CR, 2018 WL 3121209, at *9 (Tex. App.—Dallas June 26, 2018, no pet.) (mem. op., 

not designated for publication) (noting that “one ‘authorizes’ conduct by empowering 

the actor or affording a right to act” (quoting Ex parte Fujisaka, 472 S.W.3d 792, 797 

(Tex. App.—Dallas 2015, pet. ref’d))); Franklin v. State, 193 S.W.3d 616, 620 (Tex.

App.—Fort Worth 2006, no pet.) (citing Webster’s New World Dictionary and 

defining “authorize” as “1) to give official approval to or permission for; 2) to give 

power or authority to; 3) to empower or commission; or 4) to give justification for or 

warrant”). “[I]nduce,” in turn, means “to move and lead (as by persuasion or 

influence),” or “to inspire, call forth, or bring about by influence or stimulation.” 

Induce, Webster’s Third New International Dictionary 1154 (2021); see Clemens, 2018 

WL 3121209, at *9 (defining “induce” as “to move and lead by persuasion or 

influence” (quoting Fujisaka, 472 S.W.3d at 797)); see Parker v. State, No. 09-16-00061-

CR, 2017 WL 1424946, at *4 (Tex. App.—Beaumont Apr. 19, 2017, no pet.) (mem. 

op., not designated for publication) (“The term ‘induce’ is not defined by the statute, 
7

but Texas courts have used its commonly understood meaning of ‘to move and lead 

by persuasion or influence.’” (quoting Fujisaka, 472 S.W.3d at 797)). 

It is an affirmative defense to sexual performance by a child “[that] the conduct 

was for a bona fide educational [or] medical . . . purpose.” Tex. Penal Code Ann. 

§ 43.25(f)(2). 

3. Evidence of Parks’s Actions

From Parks’s perspective, all he did was buy Tina a vibrator, give it to her, and 

show her how to turn it on. According to Parks, he merely created the opportunity

for Tina to masturbate—he never directed Tina to do so.

When Parks’s actions are considered in context, though, a rational jury could 

have concluded that Parks’s provision of the vibrator tended but failed to

“authorize[]” or “induce[]” Tina to engage in sexual conduct. Id. § 43.25(b). The 

evidence—viewed in a light most favorable to the verdict, Queeman, 520 S.W.3d at

622—showed that (1) Parks exhibited grooming behaviors in the months before the 

vibrator incident; (2) even before he gave Tina the vibrator, Parks repeatedly sent Tina

text messages alluding to sexual matters; (3) Parks then gave Tina the vibrator for the 

purpose of sexual stimulation, see Tex. Penal Code Ann. § 43.21(a)(7); (4) after he gave 

her the vibrator, he sent additional sexual text messages referencing and asking about

the device; and (5) Parks later admitted to the police that he found Tina sexually 

attractive and that—assuming his wife were out of the picture, Tina were over the age 
8

of 18, and Tina had expressed interest in him—it would be “a tough judgment call” as 

to whether he would have sex with her.

a. Grooming Behaviors

The State’s theory of the case was that Parks had been grooming Tina for 

sexual abuse, and the State presented a significant amount of evidence to support this 

theory.

Three separate witnesses testified to the meaning and danger of grooming. A 

detective trained in crimes against children explained that grooming was “the early 

process of a predator establishing rapport and trust with a child victim leading up to 

sexual abuse.” An investigator with Child Protective Services (CPS) gave the jury a 

similar description of “grooming” as “the building of a relationship or an emotionaltype connection with a child for the purpose of manipulating and ultimately abusing a 

child.” And a licensed professional counselor noted that, although grooming often 

involves “innocuous-looking behavior,” a “cluster” of such behavior is targeted at a

child to shower the child with favor, isolate the child from family members and

encourage the child to “keep the secrets from everybody else in the system.” 

Both the detective and the CPS investigator confirmed that Parks’s text 

messages and behavior were indicative of grooming. The detective noted that Parks 

was giving “special treatment towards one child over the other”—he “was offering 

[Tina] an allowance that he wouldn’t give to [Tina’s brother (Brother)],” he was 

“giving her a tablet telling her she can pick out whatever presents she wants and he’ll 
9

give it to her,” and he “was sending her the late[-]night messages telling her that this 

would be a secret between us.” The CPS investigator similarly testified that Parks’s 

text messages telling Tina that “he would buy anything that [Tina] wanted,” that he 

would “provide[] [her] with money that he did not provide to [Brother],” and that 

“nobody else would have to know” were all examples of grooming behaviors.

The jury was able to evaluate Parks’s behavior for itself as well, and the

evidence bore out the grooming behaviors that the detective and investigator

described:

• Tina testified, and Parks’s text messages confirmed, that Parks repeatedly 

offered to buy Tina things and even created a separate account on Amazon

“specifically for [Tina] to use for anything that [she] might want off of 

Amazon.”

• Tina and Brother were only 14 months apart in age, and Tina testified that they 

were close and that they were protective of one another. But Parks’s text

messages revealed that he repeatedly sent Tina text messages insulting Brother,

calling him “a dweeb,” and referencing “his lies and bull sh**.” Parks even 

offered to give Brother’s pet to Tina “if [Brother] drops the ball[].”

• Parks offered to provide Tina money if she would “[kee]p it a secret from 

[Brother].” Tina told the jury that the money made her feel uncomfortable

“because [she] was getting money for no reason and [her] brother wasn’t.”

• Parks sent Tina text messages telling her that she could stay awake when 

Brother was being forced to go to bed. For example, in one message, Parks 

told her, “[b]ed time is 2:30[,] unless you want to stay up later[.] [Tina] sets her 

rules[,] not [Brother.] Just be quiet about it[.] [Brother] just wants to be able to 

say bad things.” Tina herself recognized that “it was very clear that favoritism 

was being shown because, you know, if I’m allowed to stay up and my 

brother’s not, that’s . . . not fair.

• Parks texted Tina tips to trick the rest of her family into thinking that she was 

asleep when she was staying up past her bedtime: “I would tell you to go to 
10

bed at 2[,] but . . . [Tina] does what she does . . . . Towel at the base of the door

as to block the light, and no one will know what [Tina] is up t[o].” Brother

confirmed that Parks would even “give [Tina] a towel to put under her door so 

no light would go in when she was staying up late.” 

• Tina testified that Parks gave her access to an unmonitored “off[-]chart” tablet

and “told [her] that nobody could see what [she] was looking at on there so 

[she] could look at anything [she] wanted to.” Parks’s text messages confirmed

that he encouraged Tina to take advantage of the lack of restrictions. For 

example, in January 2018, Parks texted Tina: “Any site on Google you want to 

see, you could see[.] . . . No restrictions[.] Images, videos and photos[.] . . .

[L]ook for things that you would like to . . . receive, save the image for me, and 

I will see what I can do for you[.] This is my gift to you.” Five minutes later, 

Parks texted again: “[Tina] you are a good kid[.] Problem is, you’re not a kid 

any more[.] I understand that, so enjoy[.] . . . [J]ust let me know and maybe I 

could order something for you[,] no questions asked[.]”

b. Pre-Incident Suggestive Messages

In addition to his other grooming behaviors, there was evidence that Parks sent 

Tina sexually suggestive text messages in the months before the vibrator incident: 

• Parks asked Tina to send him late-night selfies while she was mere rooms away 

in the house. In one January 2018 message—sent at 1:00 a.m. and not long

after Parks had encouraged Tina to explore the boundaries of the unmonitored

tablet he had provided—Parks texted, “Selfi[es] would be cool, maybe I will 

leave the [unmonitored] tablet with you over night [sic] during the week, so you 

can enjoy some privacy[.] Selfi[es] any time are welcome [Tina].”

• Parks used Tina’s innocuous text messages as a means to raise sexual matters. 

In one exchange, when then-13-year-old Tina requested a fox tail keychain—a 

furry keychain that she later explained she “clipped on [her] backpack” because 

she “thought it was cool”—for her birthday, Parks asked her if she wanted a 

“fox tail or foxtail plug.” He told her to “look through images on both” and

“see which one [she] like[d],” then he would order it for her. Tina later 

testified that she had not known what a foxtail plug was, but when she 

Googled it, she discovered that it was a sex toy.

• Similarly, in April 2018, Parks discovered a clay object in Tina’s room. Tina 

later explained that the object was “a piece of clay that was left over from [her] 
11

art project” and “fell off of the original [wolf] sculpture” while the sculpture

was drying in a bag. “[B]ecause it was just a roll of clay,” she scratched the 

word “Twinki” on it—running out of room for the letter “e”—and she left it 

in in her room with the original sculpture. But when Parks found the clay

object, he Googled it and concluded that it was a German sex toy. Rather than 

talking to Tina’s mother (Mother) about his discovery, Parks texted 14-year-old 

Tina and asked, “Twinkie...?” Tina did not respond, and she later testified that 

she “didn’t understand what he was getting at.”

4

• Parks implicitly tied his sexual prodding to offers of money. When Tina did 

not respond to his text-message inquiry about the “Twinkie,” Parks proposed 

giving Tina a weekly allowance: “A weekly allowance is sep[]arate from [money 

for babysitting], what would you like weekly for spending money (or saving if 

you like)[?] A Twinkie[] may be hard to do, but maybe there is something else 

that you would like.” Tina later testified that neither she nor Brother received 

an allowance at the time, so she found Parks’s references to an allowance 

confusing. 

• On another occasion, soon after Parks asked Tina about the “Clay Twinkie,”

he offered her money and told her not to “tell [Brother].” When Tina did not

respond to his text, Parks stated, “You are not a child, and I do not think of 

you as one[.] I see things with my own eyes . . . . So I give you the space for 

you to be you, and offer[ing] you an allowance for things that we do not talk 

about, but we both know exist[.] . . . Clay can be replaced by something that

works much better, and if you ask, before school starts, it can be so[.] It just 

involves trust, and telling me what it is that you really want[.]”

5

• Parks told the police that, when Tina did not respond to his text messages

regarding the clay object, he decided that he would “just go ahead and order 

something” for then-14-year-old Tina to use for sexual stimulation. 

4Several weeks later, when Tina still had not responded, Parks texted again, 

“Twinkie...?” Again, Tina did not respond, and she later confirmed that she did not

know what he was talking about, explaining, “the reason why [she] never really 

responded to his text messages [wa]s because they never made sense to [her] at the 

time.”

5Again, Tina testified that she did not know what Parks was talking about, 

saying that the text message “was very long and didn’t make much sense to [her] so 

[she] kind of ignored it as [she] did with everything else.”
12

• Even before he gave Tina the lipstick-shaped vibrator, Parks began sending

Tina text messages regarding the sexual devices that he had ordered.

6

 In one

exchange he told her he had received a package and alluded to its contents: 

“No twinkies . . . But there is a pocket rocket that should be here [soon.]” Tina

testified that, at the time, she had not known what a pocket rocket was, but

when she and Brother Googled it, they discovered that it was a small vibrator. 

• About a week after texting about the “pocket rocket,” Parks texted Tina about 

another shipment: “Two of the orders came in, one cancelled[.] I will be down 

town [sic] tomorrow, would you like me to pick up a twinkie replacement[.] 

Was thinking bullet, or something small that you could hide or keep hidden . . .

If you are into that, maybe we could talk sometime[.] That’s the neat thing 

about hidden, it’s something private that only a few get to know. . . . [Y]ou

need to be honest as to what you really want[.]”

c. Provision of Vibrator

It was within this context that Parks gave Tina a vibrator in June 2018. Parks 

texted her—at approximately 3:30 in the morning—to tell her that “[s]ome[thing] did 

come in the mail, something small that I can not [sic] say, it looks like something quite 

normal, but it’s different in many ways[.] It could be lef[t] out in the open, but some 

things are best hidden away.” When Tina asked what it was—later testifying that she 

did not know what Parks was talking about—he replied “Not a rocket[,] And not a 

twinkie[, b]ut it does take bat[t]eries[,] I[t]’s small, just take[s] one.” Parks told Tina 

that “[s]ome other things are on order[,] But I think this would do better than a clay 

twinkie,” and he noted that the package “[l]ooks like lip stick [sic].” By then, it was 

6Parks told the police that the only sexual device he had ordered for Tina was 

the lipstick-shaped vibrator. He claimed that the other sexual devices and lingerie that 

he had ordered were for his wife. Parks admitted, though, that his wife did not know 

about the other sexual devices and that they had not had sex in years.
13

nearly 4:00 a.m., and Parks told Tina that they were “[s]hort on time, [as her] mom 

[wa]s getting up soon,” but “one [was] out [in] the kitchen, battery installed, ready for

use[.]” He told Tina to “come on out.”

When Tina came out, Parks gave her the lipstick-shaped vibrator. Parks later 

recounted the incident for police; he told them that Tina initially thought the vibrator

was actual lipstick, but he clarified that “this [wa]s something different[,] and [he] kind 

of showed her . . . what it [wa]s.” Although Parks emphasized that he did not 

expressly direct Tina to use the vibrator, he admitted that he had provided the 

vibrator for sexual stimulation as a substitute for the clay object he had discovered in 

Tina’s bedroom. Cf. Tex. Penal Code Ann. § 43.21(a)(7) (defining “[o]bscene device” 

as “a device including a dildo or artificial vagina, designed or marketed as useful 

primarily for the stimulation of human genital organs”); see Bonner v. State, No. C14-93-

00375-CR, 1995 WL 144347, at *3 (Tex. App.—Houston [14th Dist.] Mar. 30, 1995,

no pet.) (not designated for publication) (affirming conviction for promotion of 

obscene device when defendant displayed vibrators for sale in adult book and video 

store).

Tina remembered that Parks took the vibrator out of the box, “showed [her] 

how to turn it on[,] and then . . . put it back in the box.” But she testified that she 

“really didn’t know what it was until [she] got back to [her] room and read the box.”

Brother confirmed Tina’s account; he and Tina had been playing video games when
14

Parks texted, so after Tina returned with the vibrator, Brother saw the box. After the 

two realized what the vibrator was, Tina “took a picture of it and sent it to [her] dad.”

d. Post-Incident Sexually Suggestive Messages

Parks’s sexual text messages did not stop after he gave Tina the vibrator:

• Within minutes of Tina returning to her room with the vibrator, Parks asked 

“[i]s it working[?]” and he texted that he had “a few other bad things on order.”

• A few hours later, around 6:45 a.m., Parks told Tina that he “ha[d] extra 

batteries, if [she] ever need[ed] them.” Again, Tina did not respond.

7

 

• Parks continued to send text messages urging Tina to “[l]et me know your 

thoughts,” and noting that she had “never ask[ed] what else came in[,] [or] what 

more [wa]s still on order.”

• More than a week later, Parks circled back again: “A clay twinkie, said it was 

time for lipstick[.] . . . Kids don’t stay young forever, eventually they do grow 

up.” 

• And again the following month, Parks sent a message through Facebook:

“German Twinkies cost about 38.00 Euro’s [sic] and are not available in the 

US[.] There ar[e] alternatives available, Amazon carries some[.] Most Twinkies 

are classified as a rabbit, so look up rabbit on Amazon[.] I have more lipstick, 

i[f] you would be interested[.] . . . I tell no one w[h]at I know.” Tina later 

testified that she looked up a rabbit online and discovered that it was “a 

different kind of vibrator.”

8

7She later testified that she “was extremely uncomfortable with the entire 

situation, and [she] really didn’t want any contact with [Parks] after that point because 

it was disturbing.” 

8Soon after Parks sent the Facebook message, he was interviewed by the police. 

In that interview, Parks told the police that he had noticed that the vibrator was 

missing from Tina’s bedroom so he “ordered another one . . . in the event . . . that she 

wanted a replacement.” 
15

e. Sexual Attraction to Tina

Adding to this evidence was Parks’s admission to the police that, although he 

was “[n]ot normally” attracted to young girls, he thought “[Tina] [wa]s attractive.” 

When the police detective asked if Parks would be willing to have sex with Tina after

she turned 18—assuming Parks’s wife were out of the picture and Tina had indicated 

interest in him—Parks responded that he would “probably not” be willing but that it 

would be a “tough judgment call.” 

There was evidence that Parks had manifested his attraction to Tina prior to his 

discussion with the police as well. Brother testified that, when the family would have

dinner, he would notice Parks looking at Tina’s chest during the prayer or 

conversation.9 And although Parks claimed that he came upon Tina’s underwear

while he was collecting laundry from her room,

10 Mother, Brother, and Tina all

testified that Tina put her laundry in a hamper in the hallway and that Parks had no

reason to go into Tina’s bedroom.

11

9Brother testified that after he “saw [Parks] looking at her . . . it didn’t seem 

very safe” in the house, and when Parks then gave Tina a vibrator, Brother “was in 

fear that he might do something to either of us.” 

10Parks told the police that Tina was stockpiling dirty underwear under her bed, 

but Tina explained that, when she was 13 or 14, she often pushed all of her laundry

under her bed “just so it wasn’t out in [her] room.” She testified that she was not 

keeping her dirty clothing for any purpose; she was simply waiting for laundry day. 

11Similarly, when Parks found the clay object in Tina’s room that he later 

claimed was a sex toy, Tina was “a little weirded out because . . . that was on or in 
16

Taking all of this evidence together and viewing it in a light most favorable to 

the verdict with deference to the factfinder’s credibility determinations, Queeman, 520 

S.W.3d at 622, a rational juror could have found beyond a reasonable doubt that

Parks’s provision of the vibrator—which was accompanied by Parks’s sexually 

suggestive messages and which came after Parks had exhibited grooming behaviors—

was an act that tended to “endorse, empower, . . . permit,” or “influence” Tina to 

engage in masturbation. See Authorize, Webster’s Third New International Dictionary

146 (2021); Induce, Webster’s Third New International Dictionary 1154 (2021).

In fact, Parks himself inadvertently concedes as much. Although he challenges

the sufficiency of the evidence to support this implied jury finding, in a separate

portion of his appellate brief, Parks acknowledges that “[t]here was . . . evidence on 

the record of Parks’s intention to allow [Tina] to masturbate” including “Parks 

t[elling] the detective that he knew the device was for masturbation and he provided it 

to [Tina].” We agree—the evidence was sufficient.

We overrule Parks’s first issue.

B. Even if preserved, the admission of Parks’s interview was harmless.

Parks next contends that the trial court abused its discretion by refusing to 

exclude certain portions of his video-recorded interview with police. Specifically, 

[her] desk, and it’s not a very noticeable thing to see just standing in [her] room,” so 

to find it, Parks would have had to have been looking around her bedroom.
17

Parks takes issue with a two-minute-and-thirteen-second segment of the interview in 

which he responded to a police hypothetical:

Detective: Say you wake up and it’s working great and [Tina]’s 18

years old and she tells you that she’s interested in sex. Is 

that something that’s okay? That you’re . . . open to if, I 

mean, take your wife out of the picture . . . you’re 

divorced . . . is that something that you’re willing to do?

Parks: Probably not.

. . . .

Detective: And not definitely not? Because, I mean, most normal 

adults would say “he[ck] no I don’t want to sleep with my 

daughter.”

Parks: One, she’s not my daughter. But . . . . no that’d . . . be 

something I probably wouldn’t do because of the age

difference. Uh, I’ve discussed that with a lot of people 

before on the internet . . .

. . . .

Detective: Have you slept with young children?

Parks: No.

Detective: Okay. Would you like to?

Parks: No.

Detective: Just your stepdaughter that you find attractive? . . . . Maybe 

eventually when she’s 18 cause you only probably don’t 

want to have sex with her?

Parks: You know that – I’ll be honest with you that’s a tough 

judgment call and stuff but I’d like to think that ya, no, I 

would not do that.
18

Detective: It . . . It’s not a tough judgment call, man. . . . If you want 

to have sex with your daughter you’ve got problems, and 

clearly you’ve got some kind of issue that you need to work 

out.

Parks: Ya.

Parks claims that this two-minute-and-thirteen-second excerpt was inadmissible 

because “[w]hether or not Parks would have sex with [Tina] four years in the future 

under a host of speculative circumstances . . . [did not] make it more probable that he 

intended to induce her to masturbate.” Plus, Parks contends, the video excerpt 

created the impression that Parks was a sexual deviant, and it suggested that the jury 

should punish him for his “strange inclinations.” This argument fails on multiple

fronts. 

First, to preserve a complaint for appellate review, “the point of error on 

appeal must comport with the objection made at trial,” Yazdchi v. State, 428 S.W.3d 

831, 844 (Tex. Crim. App. 2014); see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. 

App. 1995), and Parks did not object to the full two-minute-and-thirteen-second 

segment at trial. Although Parks objected to a portion of this segment, his objection

appears to have covered only one minute and thirteen seconds of footage. The trial 

court twice clarified as much—it noted the specific time stamps for the objected-to 

segment when it ruled on the issue before trial, and it confirmed the time stamps

again when the State sought reconsideration of the pretrial ruling in a hearing outside 
19

the jury’s presence. The time stamps referenced by the trial court encompassed only

one minute and thirteen seconds of footage. 

Parks challenges the trial court’s ruling on appeal, but he now claims that the

objectionable video segment spans two minutes and thirteen seconds. His appellate

challenge is only preserved to the extent that it comports with his objection in the trial 

court. See Tex. R. App. P. 33.1(a)(1); Broxton, 909 S.W.2d at 918.

To complicate matters further, it is unclear which portion of the two-minuteand-thirteen-second video segment was objected to in the trial court. The video was

converted into a different file format when it was admitted into evidence, so the preconversion time stamps noted by the trial court and referenced in Parks’s trial

objections do not map to the post-conversion copy of the video that is contained in 

the appellate record.

12

 Thus, although one minute and thirteen seconds of Parks’s 

challenge was preserved for appellate review, he has not provided this court with an 

adequate appellate record to determine which one minute and thirteen seconds that is. 

And “[t]he failure to provide a sufficient appellate record precludes appellate review 

of a claim.” London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016).

Regardless, even if Parks’s challenge to the full two-minute-and-thirteen-second

segment had been preserved, even if the appellate record were sufficient to confirm 

12We reviewed the original video exhibit admitted into evidence, and that 

exhibit matches the version of the video included in the electronic appellate record. 
20

preservation, and even if the trial court had erred by failing to redact the segment, the 

error would have been harmless. 

“[T]he improper admission of evidence does not constitute reversible error if 

the same facts are shown by other evidence which is not challenged.” Redmond v. State, 

629 S.W.3d 534, 547–49 (Tex. App.—Fort Worth 2021, pet. ref’d) (quoting Leday v. 

State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998), and holding that admission of 

officer’s hearsay testimony was harmless because the same facts came in through 

other witnesses and exhibits). Here, the trial court’s admission of the challenged

segment—in which Parks stated that, hypothetically, he would “probably not” sleep 

with Tina when she turned 18—was not harmful because the same facts came in 

through Parks’s reiteration in a later, unchallenged portion of the video that “if the 

question is would I sleep with her, probably not, no.”

And again, Parks inadvertently concedes this point. In his brief, Parks

downplays the probative value of the two-minute-and-thirteen-second video segment

by contending that “[t]here was already evidence on the record of Parks’s intention to 

allow [Tina] to masturbate,” and “[t]he jury could infer that Parks had an intention to 

induce [Tina] to masturbate from the numerous other statements made by Parks.” 

Again, we agree—even without the challenged two-minute-and-thirteen-second

excerpt, the jury could have inferred Parks’s intention to authorize or induce Tina to 

masturbate based on Parks’s numerous other statements, including the equivocal 

nature of his unchallenged reiteration that he would “probably not” sleep with Tina.
21

Because Parks’s challenge to the video was only partially preserved, because he 

has not presented a sufficient appellate record for us to determine which part was

preserved, because any error in the admission of the challenged evidence was

harmless anyway, and because he concedes the harmless nature of the error, we 

overrule his second issue. 

C. Section 43.25 is not unconstitutional as applied to Parks.

13

Finally, Parks argues that the sexual-performance statute—Penal Code Section

43.25—is unconstitutional as applied to him because it infringes on his right as a 

stepfather to make child-rearing decisions. See U.S. Const. amend. XIV;

14 cf. Troxel v. 

Granville, 530 U.S. 57, 65–66, 120 S. Ct. 2054, 2060 (2000) (plurality op.) (summarizing

“extensive precedent” protecting parental rights and stating that “it cannot now be 

doubted that the Due Process Clause of the Fourteenth Amendment protects the 

fundamental right of parents to make decisions concerning the care, custody, and 

control of their children”). 

13Parks also argues that the legislature did not intend for the sexualperformance statute to be applied to cases such as this one. Parks claims that the 

sexual-performance statute was intended to punish those who use children for 

pornographic purposes—not to punish stepparents. But as the State points out, 

“[w]hen interpreting criminal statutes, courts focus on the plain language of the text, 

for that is the foremost indication of legislative intent.” State v. Mays, 967 S.W.2d 404, 

408 (Tex. Crim. App. 1998) (quoting Hines v. State, 906 S.W.2d 518, 520 (Tex. Crim. 

App. 1995)). Because Parks’s offense is within the plain language of the sexualperformance statute, it is within the intended scope. 

14Parks also cites the Fifth Amendment Due Process Clause. See U.S. Const. 

amend. V.
22

“An as-applied challenge to the constitutionality of a law asserts that the law is 

unconstitutional as it was applied to the Appellant’s particular facts and 

circumstances.” Ex Parte Shires, 508 S.W.3d 856, 861 (Tex. App.—Fort Worth 2016, 

no pet.). Parks frames his particular facts and circumstances as having purchased and 

provided a vibrator for legitimate educational and medical child-rearing purposes. But 

as the State points out, the jury rejected this factual theory when it rejected Parks’s 

affirmative defense that he had provided the vibrator for a bona fide educational or 

medical purpose. See Tex. Penal Code Ann. § 43.25(f). Therefore, we overrule 

Parks’s third issue. 

III. Conclusion

Having overruled Parks’s three issues, we affirm the trial court’s judgment. 

Tex. R. App. P. 43.2(a).

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

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

Delivered: March 2, 2023