## 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. M emorandum Opinion by Chi ef Justice Sudderth 

### C URTIS 

### M ICHAEL 

### P ARKS 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appellant Cur t

i s Micha el Parks purch as e d a li pstick

- shaped vibrator and gave it
to his 14

- year

- old step daughter T.J. (Tina) 1 with the intention of helping her
masturbate

. F o r th is, a jury convicted Parks of attempted sexual performance by a ch i ld

. See Tex. Pe nal Code Ann. § 43.25

. Parks appeals his conviction, challenging (1 ) the sufficiency of the evidence to prove that his provi sion of the vibrator

am ounted to more than mere preparation, (2) the trial court ’ s refusal to red act ce rtain portio ns of Parks ’ s vi deo

- recorded police interview , and (3) the constitutionality of
the sexual

- performance statute as applied to Parks ’ s case. W e will affirm.
I. B a ckground
The facts of the case are largely undis put ed

. Parks purc hased a lipstick

- shaped
vibrator on Amazon , he gave it to Tina, and he showed her how to turn it on. He
lat er explained that he had found a clay, c arrot

- s haped object i n Tina ’s b edr oom , that
the handmade object was engraved with the word “Twinki , ” 2 and that after some
in t ernet research, he had discovered that t here wa s a German sex toy known as a

t winkie. Parks claimed that , b eca use he had found dir ty und erwear under T ina ’ s bed

1 To pr otect the minor v

icti m ’ s anonymity, we refer to her using an alias. Cf. Tex. R. App. P. 9.10(a)(3 ) , (b)

.

2 Tina late r told P a rks that she “ had extra clay from ar[t] class a nd [she ] di dn ’ t know what to do with it, so [she] rolled it up and wrote ‘ Twinki ’ on it. [Sh e] ran out o f room for an ‘ e ’

. ” Wh e n she t estified, she told the j ury that the objec t wa s “a pie ce that actually fell off of the o riginal sculpture ” wh en she made “a wolf statute ” for her school ar t c lass.3

in the past , he was concerned th at Tina was using the clay object to ma st urbate

un safely , so he provided the vibrator as “ a safe r way
. ”
P arks volunta rily discussed his case with police , and in a video

- reco rd ed interview, he admitted that he foun d T i na s exually attractive

. Then, i n response to a hypothetical question from the pol ice, Parks i ndicated that if Tina were 18 years old, if
his wi fe were out of th e p ic ture, and if Tina were to tell him that sh e wanted to have sex with him, he “probably” would not slee p with her altho ugh i t would be a “tough judgme nt call.” The police sear ched Parks ’ s phone, and th at sear c h

— together with a search of
Tina ’ s ph o n e

— reveal ed that , in the months leading up to the vibrato r incident, Park s

sent Tina numerous qu estion abl e text mess age s , many of which alluded to sexual

matters
. Multiple la w enforcement officials described Par k s ’ s text messages

— and the
actions that they reference d

— as Parks “ gro oming ” Tina for sexual a buse.
Pa rks was sub seq uen tly ind ic ted for attem pted sexual performance by a child by “ purchasing a l ipstick vibrator for [the] ch ild to use for the purpose o f masturbation and providing suc h item to the ch ild

. ” See i d. § § 15 .01 (a) , 43.25 (b)

. At trial, t he primary c ont est ed issue w as whether Parks int ended t o authorize or induce
masturbation

. Parks denied this intention and claimed that he was simply a cting as a concerned pa rent by providing the vibrato r for a bona fide educational or medical
purpos e . See id. § 43.25 (f)(2)

. Parks allege d that the se xu al

- performance s tatute was

unco nstitutional as applied to him because the statute infringed on his parental right4

to d ir ect t he sexual health and education of a child in his car e . T he State , meanwhile, argued that Parks h ad been grooming Ti na for sexual abuse and that the provision of
the vi brator was a step toward that goal

. After the evidence closed, the t rial court denied Parks ’ s as

- a pplied

cons titutional ch a ll eng e to the sexual

- p erformance statu te
. T he jury then convicted
P a rks of at temp ted sexua l performance , reject ing Parks ’ s affirm ative defense that he had provided the vibrator for a bona fide educati ona l or medical p urpose. S e e id. § 43.25(b), (f)(2)

. II. Discussion Parks raises three issues on appeal: (1 ) the sufficiency of the evidence t o prove that his p rovision of the v ibrator was an act amount ing to more than mere preparation, (2) the trial co urt ’ s ref usal to redact t he portion of his video

- recorded police interview in which he responded to hypothetical questions about wh ether he
woul d sleep with Tina if she were 18 , an d (3) the constitutionality of the sexual

performance statute as applied to Par ks ’ s purported exercise of his paren tal discretion

. A

. The evidence w as sufficient

. Fi rst, Parks argues that the evidence was insufficient t o supp ort his conviction
because his actions

—

purchasing a vibra tor and gi ving it t o T ina

— amounted to , at

most , mere pre paratio n to commit sexual performance by a child

. See id. § 15.01(a)

.5

1
. Sufficiency S t andar d of Review
In our review o f the suffici e ncy of the evidence, we view all the evidence in a light most fav ora ble to the verdict to determi ne wheth er any rational factfinder could
have found th e crime’s essential elements beyond a reasonable doubt. Ja ckson v. Virgi nia , 443 U.S. 307, 319, 99 S. C t
. 2781, 2789 (1979) ; Queeman v. State , 520 S.W.3d 616, 622 (Te x. Cri m. App. 2017). The factfinde r alone determines the evidence’s weight and credibili ty ; we may not u surp that role

. See Tex. Code Crim. Proc. Ann.

art. 38.04; Martin v. State , 635 S.W.3d 6 7 2, 679 (Tex. Crim. App. 2021) ; Queeman , 5 20
S .W.3d at 622

. 2
. Ess ent ial Elements of Attempted Sexual Performance by a Child A per son commit s at tempted sexual per formance by a child “ i f, with specific
intent to commit [ sexual performance by a child ] , he does an act amounting to more than mere preparation that tends bu t f ails to effect the commis sion of the of fense

. ”
T ex. Pen al Code Ann. § 15.01 (a)

. A pers on comm its the offense of s exual performance by a child if , “ knowing the character and content ther e of, he employs, authorizes, or induces a child younger than 18 ye ars o f age to engage in sexual

co n duct

. ” Id. § 43.25(b). As relevant here, “ [s] exu al conduct ” is statutorily defined to
in clude “ masturbation

. ” 3 Id. § 43.25(a)(2)

. The t erms “emplo y[ ], ” “ authorize[], ” and

3 “Masturb ation ” is not statutorily defined but is commo nly un derstood to
mean “eroti c stimulation inv olvi ng the genital organs
. . . a c hie ved by manual or other b odil y contact exclusiv e o f sexual intercourse , [ or] by instrumental m anipu lation

. ” Mas turbation , Webste r ’s Third New Interna tion al Dictionary 1391 ( 202 1 )

.6

“induce[] ” are not statutorily defined , thou gh , so the factfinder was fr ee to in terpret

t h em according to their ordinary meaning s. See State v. Bolles , 541 S.W.3d 128, 138 (Tex. Crim. App. 2017) ; Kirsch v. State , 357 S.W.3d 645, 650 (Te x . Crim. App. 2012)

. T he ordinary meaning of “ auth orize ” is “ to en d or s e, empower, justify, or
perm it by or as if by some recognized or proper authority

. ” Authorize , Webst er ’s
Third New International Dictionary 146 ( 202 1 ) ; see Clemens v. State , No. 05

- 17

- 00665

- CR, 2018 WL 3121209, at *9 (Tex. App.

— Dallas June 26, 2018, no pet.) ( mem . o p. , not designated for publ icat ion) ( noting that “one ‘authorize s ’ conduct by empowering
the actor or af

fording a right to act ” (quoting Ex parte Fujisaka , 472 S. W.3d 792, 7 9 7 (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 Wor ld Di ctionary and
d efi nin g “authorize ” as “ 1) to giv e of ficial appro val 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 mov e and lead (as by persuasion or
influ enc e ) , ” or “ to inspire, c all forth, o r br ing about by influence or stimulation

. ”
Induce , Webs t er ’s Third New Interna tional Dictionary 1154 ( 202 1 ) ; see Clemens , 2018 WL 3121209, at *9 ( defining “ ind uce ” as “ to move and lead by persuasion or
influence ” (quo tin g Fujisaka , 472 S. W.3d at 797 ) ) ; s ee Parker v. State , No. 09

- 16

- 00061

- CR, 2017 WL 1424946, a t *4 (Tex. App.

— Beaumont Apr. 19, 2017, no pet.) (mem. op., not designated for publication) ( “ The term ‘ i ndu ce ’ is not defined by the statu te,7

but Te xas cou rts have used its commonly understood meaning of ‘to move and lead by persuasion or influence.’ ” (q u oting Fujisaka , 472 S.W.3d at 797 ) ).
I t is an affirmati ve def

ense to sexual performanc e b y a child “ [t ha t] t he conduct
was for a bona fide educational [or] medical

. . . purpose
. ” Tex. Pen al Code Ann. § 43.25(f)(2).
3
. E viden ce of Parks ’ s Actions
From Parks ’ s perspective, all he did was buy Tina a v ibr ator , give it to her, and
show h er how to turn it on

. A cc ording to Park s, he merely created t he opportunity
for Tina to masturbate

— he never di rect ed Tina to do so.
W hen Parks ’ s a ction s ar e c ons i dered i n c ontext , tho ugh, a rational jury could
have concluded that Parks ’ s provision of the v ibrator tended b ut failed to

“ authorize [] ” or “ induce [] ” Tina to e ngage in sex ual conduct

. Id. § 43.25(b)

. The
evidence

—

viewed in a light most favora ble to the verdict, Q ueeman , 520 S.W.3d at
622

— showed that ( 1 ) Parks exhibited grooming behaviors in the months before t he
vibr ator incident ; ( 2) even before he gave Tina the v ibrator , Par ks repeatedly sent Tina text messages alluding to sexual matters ; (3 ) Pa rks th en gave T i n a 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 se nt additional se xual text m essages refere nc ing and asking about
the device ; and ( 5 ) Parks later admi tte d to th e police t h at he found Tina s exually

attra ctive and that

— assuming his wife were out of th e picture , Tina w ere over the age8

of 18 , and Tina had e xpressed interest in him

— it w ould be “a tough judgment call ” as
to whether he would have sex wit h h er
.

a. Grooming Behav i ors
The S tate ’ s theory of the case was that P arks had bee n grooming Tina for sexual abuse, and the State presented a significan t amount of evidence to support this theory

. Three separate w

itnesses testified to the meani ng and danger of grooming. A
d ete c tive trained in crimes against c hildren explained th at grooming w as “ the early
proc ess of a pr edator establishing r apport and trust wi th a chil d victi m leading u p t o sexual abuse. ” An investigat or with C h ild Protective Services (CPS) gave the jury a

s imi l ar des cription of “ grooming ” as “ the build i ng of a re la ti o nship or an emo tio nal

t ype co nnection with a child for the purpose of manipulating and ultimately abusing a
child. ” And a licensed professional counselor noted that, although gro oming often
in volv e s “ innocuous

- looking be havi or, ” a “ c luster ” of such behavior is targete d at a child to sho wer t he child with favor, isola t e the child from famil y members and

enco ura ge the child to “ keep the secrets from everybody else in the system

. ”
Both the detective and the CPS investigator con firmed that Par ks ’ s text

m ess ages and behavior were indicat ive of grooming

. The de tective no t ed that Parks

was giving “ sp ecial treatment towards one child over the othe r ”

— he “w as offering [Tina] an al lowance that he wouldn ’ t g i ve to [ Tina ’ s brother (

Brother ) ], ” he was

“ giving he r a tablet telling her she can pick out whatever pr esents she wan ts a nd he ’ l l9

giv e it to her , ” and he “ was sending her the late [

- ] night messages telling her that this
would be a secret between us

. ” The C PS investigator similarly t estifie d th at Park s ’ s

text messages tel ling Tina t hat “ he wo uld buy anything t hat [Ti n a] wanted, ” that h e

w ould “ provide [] [

her ] with m oney that he did not provide t o [ Brother ], ” and tha t

“ nob ody else would have to k now ” were al l examples of g rooming beh aviors.
T h e jury was able to evalu ate P a rks ’ s behavi or for itself as well , and t h e evidence bore o ut the grooming behaviors that the detective and investigator
described :

• Tina testified, and Parks ’s text messages confirmed, that P arks re pea tedly offered to buy Tina thing s and even created a s eparate accoun t o n Amazon

“ specifically for [

Tina ] t o use fo r anything that [she] might want off of Amazon. ”

• Tina and Brother were on ly 14 months a part in age , and Tina te stifie d that the y w e re close and that they were p rotect ive of one another

. But Parks ’ s text messages revealed that he repeatedly sent Tina te xt mes sa ges insulting B r o ther , cal ling him “ a dweeb , ” and re fer encing “ his l ies and bull sh * *. ” P a rks even offered to gi ve Bro ther ’ s pet to Tina “ i f [Brother] drops the ball []

. ”

• Parks offered to provide Tina money if she would “ [kee ]p i t a s ecret from [Brother]

. ” Tina to ld the jury th at the money made her feel u ncomfortable

“ because [she] was get tin g money for no rea son and [her] bro t her wasn ’ t
. ”

• Parks sent T i na text messages tellin g he r that she could sta y awake when Brother was be ing forced to go to b ed . F or example , in one message, Parks told her , “ [b] ed time i s 2:30 [,] unless yo u want to stay up lat e r[.] [Tina] sets her rul es [,] not [B rother

. ] Just be quiet about it [.] [Brother] just wants to be abl e to say b ad things

. ” Tina herself recognized tha t “ it was very c l ear that f avoritism was being shown because, y ou know, if I ’ m al low ed to stay up and my brother ’ s not, that ’ s . . . not fair.

• Parks texted Tina tips to tric k the rest of her family into thinking that she was asle ep when she w as staying u p past her bedtime : “ I wou ld tell y ou to go t o10

b ed at 2[,] but

. . . [T i na] does what she does

. . . . Towel at the base of the door as to block the light, and no one will kn ow what [Tina] is up t[o ]. ” Br other confirmed that Parks would e ven “ give [Tin a] a towel to put under her door s o no light would g o i n when she was staying up late. ”

• Tina testified that Parks gave he r access to a n unmonitor ed “ off[

- ] char t ” tablet and “ told [her] th at nobod y could see what [she] was looking at on there so [she] could look at anything [she] w a nted to. ” P arks ’ s text messages confirm ed that he encouraged Tina to take advantage of th e la ck of restric t io ns . For example, i n January 2 018, Parks te x ted Tina: “ A ny s ite on Google you want to see, you could see[.]

. . . No restrict ion s [ .] Images, v

ideos and p hotos[.]

. . . [L] ook for things that you would like to

. . . receive , save the ima ge f or me, a nd I w il l see what I can do for you[.] T his is my g if t to you. ” F ive minutes later , P arks texted again : “[Tina] you are a g ood kid[.] Problem is , yo u ’re not a kid any more[.] I understand that, so enjoy[.]

. . . [J] ust let me kno w and maybe I
co uld o r d er som eth ing fo r you[ , ] no questions a sked [.] ”
b. Pre

- Incident Suggestive Messages
I n addition to his oth er grooming behaviors , the re was evidence that Parks sent
T ina sexually suggestive text message s in the mo nths bef ore th e vibrator incident:

• Parks a s ked Ti na to send him late

- night self ies wh ile she w as mere room s a way in the hou se. In on e J anuary 2018 me ssage

— sent a t 1:00 a.m. and not long after Parks had encouraged T i na to explore the bound ar ies of the unmonitored tablet he h ad provided

— Parks text e d , “Sel fi[es] would be cool, maybe I will leave the [ unmonitored

] tablet with you over nigh t [ sic] during the week, so y ou can enjoy some privacy [.] S e lf i[es] any time are welcome [Tina]. ”

• Parks used Tin a ’s innocuo us text messages as a m eans to r aise sex u a l matt ers
. In one exchange, when then

- 13

- year

- old T i na requested a fox ta il keych ain

— a f urry k eychain that she later explained she “ clipped on [her] back pack ” becau se she “ thought it was c ool ”

— for her b irthday , Parks a sked h er if she wa nted a
“ fo x t ail o r foxtai l plu g. ” He told her t o “ look through images o n both ” an d

“ s ee which one [she ] like[d] , ” then he would order it f or her. Tina later tes tified th at she had not k nown w hat a foxtail plug was , b ut when she G oogled it, she discovere d that it was a s e x toy.

• Simila rly, in A pril 2018 , Parks discovered a clay object in Tina ’s room. Tina later e xpl ained that the object was “ a pie ce of clay that was le ft over f rom [her ]11

art project ” and “ fell off of the original [wolf] sculpture ” w hile th e sculpture
wa s d r yi ng in a bag

. “ [B]ecause it was just a roll of clay, ” she scr atc hed the
w or d “ Twinki ” on it

— running out of room for the letter “e ”

— and she left it in in her room with the origina l sculpt ure
. But w hen Parks foun d the clay object , h e Go ogled it and conc l ud ed that it was a German sex toy

. R ather than talking to Tina ’s mother (

M other) about his disc o very , Parks texted 14

- year

- old Tina and asked , “ T winkie

... ? ” Tina did not respond, and she later testified that
s he “ didn ’ t understand what he was getting at

. ” 4

• P arks implic itl

y tied his sexual prodding to offers of money. W h en Tina did not re s po n d to his text

- message inq uiry about the “ Twinkie, ” Parks proposed giv ing Tina a weekly allowance : “ A we ekly a llowance is sep [ ] arate from [

money f or b abys itti ng] , what wo uld you like wee kly for spending money (or saving if you like)[?] A Twinkie [] ma y b e h ard to do, but may be there is something else tha t you would like. ” Tina later testified th at neither she nor B rother received an allowance at the ti me , so she found P ar ks ’ s referenc es to a n allowance
co nfusing

.

• On another o ccasion , soon af ter Parks asked Tina about the “Clay Twinkie, ” he offered her money and told her not to “ tell [Brother]

. ” When T i na did not respond to his text , Parks stated , “ Y ou are not a chil d , and I do no t t hink of yo u as one[.] I s ee things with my own ey es . . . . S o I give you the space for you to be you, and off

er [ing] you an allowance for things that we d o not talk about, but we bot h know exist [.]

. . . Clay can be re placed by somethi n g that work s much b e tter, and if you ask, befo re school starts , it can be so[.] It just involves trust, and telling me wha t it is that you really want[.] ” 5

• Parks told t h e police th at, when Tina did not respond to h is text messages regard ing the cla y o bjec t , he decided that he w ould “ just go ahead and order
some thing ” for then

- 14

- year

- old Tina to use for sexual stimulation

.

4 S e veral weeks l at er, when Tin a still h ad not res ponded , Parks te xted ag ain , “ Twinkie

... ? ” Again, T i na did n ot respond, and she later confirmed that she did not know what he was talking a bou t , explaini ng, “ the reason why [she] never real ly resp onded t o hi s text messag es [ wa]s b e cau se they never made sen se to [her] at the time. ”

5 A g ain , Tina testified that she did not know what Parks was talking about , saying t ha t the text message “ was v ery long and didn ’ t make much sense to [her ] so [ s he] kind of ign or ed i t as [s he] did with e ve r ything else

. ”12

• Even before he gave Tina the lipstick

- s haped vibra tor , Parks began sending Tin a text mess ages regarding the se x ual device s that he ha d o rde red

. 6 I n one exchange he told her h e had received a package and alluded to its contents :
“ No twinkies

. . . Bu t there is a pocket rocke t that should be here [ soo n .] ” Tina testified th at , at the time, she had n ot known what a pock et rocket was , but when she and Brother Googled i t , they di sco vered that it was a small vibrator.

• A bout a week after texti ng about t he “ p o cket rocket, ” P arks texted Tina a bou t a nother shipment : “T wo of the orders came in, one cance lled[.] I will be dow n town [sic] tomor r ow, w o uld you like me to pick up a twinkie replac eme nt [.] Was thinking bullet, or som ething small that you could hide or keep hid de n . . . If you are in to that , mayb e we cou ld talk sometim e[ .] That ’ s the neat thing about hidden, it ’ s something pr ivate t hat o n ly a few get to know.

. . . [Y]ou need to be honest a s to what you really want[.] ”

c . Provision of Vi brator
It was with in this context that Parks ga ve Tina a v ib rator in June 2018

. P arks

te xte d her

— at approxim ately 3: 30 in th e morning

— to tell h e r tha t “ [s] ome [thing] did

c om e in the mail, something sma ll t hat I c an not [sic] say, it looks like something quite normal, bu t it ’ s different i n m any way s[ .] It could be l ef [t] out in the open , but some things are be st hidden away

. ” W hen Tina a sked wha t it w as

— later testifying that she
d id not know what Parks was talking about

— he replied “ N ot a rocket[,] And not a
twin kie[, b] ut it does tak e bat[t]eries [,] I[t] ’ s small, just t ak e [ s] one. ” P arks told T i na
that “ [ s]ome o t her things are on order[,] But I t hink this would do better than a clay
twinkie , ” a nd he no ted that the package “ [l]o oks like lip stick [sic]

. ” By then , it was

6 Par k s told the police tha t the onl y s ex ual device he had ordere d for Tina was the li pstick

- shaped vibrat or. He claimed t hat the other sex ual devices and lingerie that he h ad ordered were for his wif e . Parks a dmitte d, though, that his wif e did not know abo ut t h e other sexual devices a nd t hat they had not ha d sex in years.13

nea rly 4:00 a.m., a nd Parks to ld Tina that they were “ [s] hort on time, [a s her] mom [wa] s getting u p soon , ” but “ one [was] out [ i n ] the kitchen, battery in stalled, ready for

us e[.] ” He to ld Tina to “ c ome on out
. ”
Wh en Tin a came out , Parks gave her t h e lipstick

- shaped vibrator

. Pa rk s later
recounted the inci dent for police ; he tol d the m that Tina initially t hough t the vibrator

w a s a c t ual lip st

ick , but he clari fied th at “ this [wa] s something differen t [,] a nd [he] kind
of showed her

. . . what it [wa] s. ” Although Parks emphasized that he did not
expres sl y direct Tina to us e the vibrator, he admitte d that he ha d provid ed the

v ibrat o r f or sexual stimulation as a substitute for the clay object he had discovered in
Tina ’ s be droom

. Cf

. Tex. Pen al C ode Ann. § 43.21 (a )(7 ) (defining “[o]bscene dev ice ”

as “ a device including a dildo or artificial vagina, designed or ma rketed as useful prim a ril y for the stimulation of hum an ge nital organs ”) ; see Bo nner v. State , No. C14

- 93

- 00375

- CR, 1995 WL 144347, at *3 (Tex. App.

— H ousto n [ 14th Dist.] Mar. 30, 1995, no pet.) (not designated for publication) (af firming con viction for pro motion of
obscene dev

i ce whe n defendant dis played vibrator s for sale in adul t book and video

s tore)

. Tina remembere d that Parks took the vibrator out of the box, “ showed [her ]
h ow to turn it on[,] and th en . . . put it back in the box

. ” B ut she testified that she

“ really didn ’ t know what it was unt il [sh e] go t b ack to [her] room and read the box

. ”
Brother confirmed Tina ’ s a ccount; he and Tin a h ad been pl aying video game s when14

P a rks texted , so after Tina r eturned with the vibrator , Brother sa w the box

. Af

ter the

two rea lized w

hat the vibrator was, T ina “ took a p icture of it and sent it to [her] dad. ”
d

. Pos t - I ncident Sexual ly S uggestiv e Messages
Parks ’s sexual te xt messages did not stop after he gave Tin a the vib rator :

• Within minutes of Tina ret urning to her room with the vib r ator , P a rks asked

“ [i ] s it working [? ] ” and he texted that he had “ a few other bad t hin g s on ord er
. ”

• A few hours later, around 6:45 a.m. , Parks told Tina that he “ ha[d] extra b atteries, if [she] e ver need [ed] them

. ” Again, Tina di d no t respond

. 7

• Parks c o ntinued to send text m essages ur gin g Tina to “ [ l]et m e k now your th oughts, ” and no ting that she had “ never ask [ed] what else came i n[,] [or] what
more [wa] s stil l on order. ”

• More than a week later, Parks circled ba ck again : “ A clay t winkie, said it was t i me for lipstick [.]

. . . Ki ds don ’ t st a y youn g f orever, eventu ally they do g row up. ”

• And a g ain the fol lo wing month , Park s sent a message through Faceboo k :
“ G erman Twink

ies cost abou t 38.00 Euro ’ s [si c] and are not available in th e US[.] There ar [e] a lternatives av ailable, Ama zo n ca rri es so me[.] Most Twinkies are classified as a rabbit, so look up r ab bi t on Amazon[ .] I have more lip stic k, i [ f] you wo uld be interested[. ]

. . . I te ll no one w[h]at I know. ” Tin a later testified tha t she looked up a r ab bit on line and discovere d that it was “ a different kind of vibrator. ” 8

7 She later testif

ied that she “ was extremely uncomfortable w ith the enti re situation , a nd [she] really didn ’ t want any contact with [Parks] a fter t h at point because i t w a s disturbing. ”

8 Soon after Parks sent the Faceboo k m e ssage, he was interview ed by the police. I n that interview, P a rks to ld the police that he had n oticed that the vi brator was missing from Tina ’s bedroo m s o he “ordered anot her on e . . . in the event
. . . that she wanted a replacemen t. ”15 e . S e x ual Attrac tio n to Tina Adding to this evidence was Parks ’s admission to the p olice that , although he

was “[n]ot normally ” attracted to young gi rls, he t hough t “ [ Tin a ] [wa]s a ttractive

. ”
W hen the poli ce detective a sked if Parks would be willing to have sex with Ti na after
she tur ned 18

— assuming Parks ’ s wife w ere out of the picture and Tina had indicated
interest in him

— Pa r ks re sponded that he would “ proba bly not ” b e willing b u t that it
would be a “tou g

h judgment cal l

. ”
T here wa s evidence that Parks h ad manifested his a ttraction to T i na prior to his
discussion with the police as well

. Brother tes t ified that , when t he family would hav e dinner, he would n otice Parks looking a t Tina ’ s chest during the p ra yer or

conve rs ation. 9 A n d a lthough Parks claimed that he came upon Tina ’s underwear
while he was collecting laundry from her room , 10 M other, Brother , an d T i na all
testified that Tina put her laundry in a ha mper in the hallway a n d tha t Parks had no

reason to go into Ti na ’s bedroom

. 11

9 Brother test

ifi ed that after he “ saw [Park s] looking at her

. . . it di dn ’t seem very safe ” in the house , and when Parks t he n gave Tina a vibrator, B ro th er “was in fear that he might do so methin g to e ither of us. ”

10 P arks told the police th at T i na was sto ck piling dir ty underwear und er her bed, but Tina exp l ained that , when she was 13 or 14 , she of te n pushed all of her laundry und er her bed “ just so it wasn ’ t out in [her] room. ” She testif ied th at she wa s not keeping h er di rty c lothing for any purpose ; she was simply wai ting for laundry day.

11 Similarly , w hen Parks found t he clay object in Tina ’s room t hat he lat er cla imed was a sex toy , Tina was “ a little w eir ded out because

. . . that w as on or in16

T aking all of this evidence together and viewing it in a l ig h t most favorable t o

t he verdict with defe re n ce to the factfinder ’ s credibility determinations , Queeman , 520
S.W.3d a t 622 , a rational jur o r could have found beyond a reaso nable d ou bt that
P arks ’ s provision of the vibrator

— w hich was accompanied by Parks ’ s s ex ually suggestive me ssages and which came after P a rks had exhibited gr ooming b ehaviors

—

was a n act that tended to “ e ndorse, empo wer,
. . . permit, ” or “ influence ” T ina to
engage in masturba tion

. See Authorize , Webst er ’s Third New International Dictiona ry
146 ( 202 1 ) ; Induce , W ebster ’s Third New Interna tional Dictionary 1154 ( 202 1 )

. In fact, Park s himself inadvertently concede s as much

. Al t hough he challeng es
the su fficiency of t he evidence to support this implied jury finding , i n a separate portio n of hi s appellate brief , Par ks acknowledges that “[t]here was

. . . evidence on
the re cord of Parks ’ s intention to allow [T ina] to mastur bate ” i n cluding “ Parks

t [elling] t he dete ctive t hat he kn ew the device was for masturbation and he provided it

to [Tina]

. ” We agree

— the e vidence was sufficient.
We overrule Parks ’ s first issue.
B. Even if preserve d, t he admission of Parks ’ s interv ie w was harml e ss . P a rks next con tends t h a t the trial c ourt abused its discretion by refusing to
exclude c er t ain po rtions of hi s v i deo

- recorded interview with police. Specifically,

[her] desk, and i t ’ s not a very noticeable thing to see ju st standin g i n [her] roo m , ” s o to find it, Parks would have had to h ave been looking a round her bedroom

.17

Parks takes issue with a two

- minute

- and

- thirteen

- second segme nt of the interview in
whic h he responded to a polic e h ypothe tical : Detective: Say you wa ke up and it ’s wor king great an d [Tina] ’s 18

years ol d and she tells you that she ’s interes ted in sex. Is that something that ’s okay? That you ’re

. . . o pen to if, I
mean , take your wife ou t o f the picture

. . . you ’re div or ce d

. . . is t hat somethin g that you ’re willing to do?
P arks: Pr ob a bly not.

. . . . De tective: And not def initely not? B e cause, I m e an, most n ormal adults would say “he [ck] no I don ’t want to slee p with my daughter. ”
P arks: One, she ’s not my dau g ht e r
. B ut
. . . . no that ’d

. . . be
som ething I probably wouldn ’t do because of the age di fference

. Uh, I ’ ve discussed that with a lot of people be fore on the internet

. . .

. . . . Detective: Have you slep t with young children?
P arks: No.
Detectiv e: Ok ay . Woul d you like to ?
P arks: No.
Detective: Just your st e pdaughter th at you fi nd at tractive ?

. . . . M aybe

e ventually when she ’s 18 cau se you on ly probably don ’t want to have sex with her?
P arks: You know tha t

– I ’ll be honest with you that ’s a tou g h judgment call and stuff b ut I ’d like to think that ya, n o, I would not d o tha t.18

Detective: It

. . . It ’ s not a tough judgment call, man.

. . . If you want

to have sex with your daughter you ’ v e got problems, and
c learly you ’ ve got some kind o f iss ue th a t you need to work out.
Parks: Ya

. Parks claims that this two

- minute

- and

- thir teen

- second excerpt was inadmissible
because “ [w]hether or not Parks would have sex with [Tin a ] four years i n the futur e

u nd er a host o f spe cul ative circumstances

. . . [d id n o t] make it more probable that he
in tended to induce her to masturbate. ” Plus , P a rks contends, the video excerpt

cr eated the i mpression that Parks was a se xual devia nt, and it sug ge s ted that the jury
sho uld punish h i m for his “ strange in clinations. ” T his argument fail s on multiple
fronts. First, to preserve a complaint for appellate re view , “ t he point of error on appeal must comport with the objection made a t tria l , ” Yazdchi v . S tate , 428 S.W. 3d 831, 844 (Tex. Cri m . App. 2014) ; see Brox ton v. State , 909 S.W.2d 912, 918 (Tex. Crim. App. 1995 ) , and Parks did not object t o the full two

- minute

- and

- thirteen

- second
segment at trial

. Althoug h Parks objected to a po r tion of this segme nt , his objection appears to have cove r ed only o ne minute and thirteen seconds of footage. T h e trial

court twice clarified as much

— it noted the specif

ic time stamps for the objected

- to
segment wh en it ruled on the is s ue before trial, and it confirmed th e t ime stamps again when t he State sough t reconsideration of the pretrial ruling in a hearing outside19

the jury ’ s presenc e . The t i m e stamps reference d b y the trial court encompassed only

one mi nute and thirteen second s o f footage

. Parks challe nges the trial court ’ s ru ling on appeal , but he now c laims that th e objectionable vid eo segm e nt spans two minute s and thirteen second s . His appellate challenge is only preserve d to the extent tha t i t com ports with his objection in the trial

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

. To com plicate matters further , it is uncle ar which portion of the two

- minute

and

- thirteen

- second video segment was objected to i n the trial court

. T he video was converted into a different file format when i t was admitted int o evidence, so the pre

conv e rsion tim e s t amps noted by th e trial cou rt an d referenced in Par ks ’s trial
ob jecti on s d o not map t o the post

- con version copy of th e video that is con tai ned in the appellate record

. 12 Thus, a lthough one minute an d thirteen second s of Parks ’ s challenge was p reserved f or appellate review , he has no t pro vided this court wi th a n adequate appellate record to determine which one minute and t h irteen seconds th at is.
And “ [t]h e failure to provide a sufficient appellate re cord pr ecludes a ppellate review
of a claim. ” London v. State , 490 S.W.3d 503, 508 ( Tex. C rim. App. 2016)

. Reg ardless , e ven if Parks ’ s challenge t o the full two

- minute

- and

- th irteen

- second
segm e nt had been preserved , ev en if the appellate record were sufficient to confir m

12 We reviewed the original video exhibit admitted into evidence, an d t hat exhibit matche s the version of the vi d eo included in the electronic appellate record

.20

preservation , and even if t he t rial court h ad erred by failing t o reda ct the se gment, the

e rro r would h ave been harmless

.

“ [T] he improper admiss ion of evide nce does not const i tu te reversible error if
the same facts are shown b y other evidence which is not challenged. ” Redmond v

. Stat e , 629 S.W.3d 534, 547

– 49 (Tex. App

. — Fort Wo rth 2021, pet . ref’ d ) (quoting Leday v.
State , 983 S.W.2d 713, 717 (Tex. Crim. App. 19 98) , and holding t h at admission of
officer ’s hearsay testimony was har mless because the same facts came in th rough
other wi tnesse s an d exhibits ). Here, t he tria l court ’ s a dmission of the c halleng ed
segment

— in which Parks state d that , hypot hetically, he would “probably n ot ” sle ep
with Tina when sh e turned 18

— was not harmful beca use the same facts came in through Parks ’s rei t eration in a later, unchallenged portion of the v i d e o that “ if the

q uestion i s would I sleep with her, probably not, no. ”
And again, Pa rk s inadvertently concede s this point

. In his br ief, Par ks downplays the probative value of the two

- min ute

- and

- thirteen

- s econd video segment by co ntendi ng that “[t

]here w as already evidence on the record of Parks ’ s intention to
allow [Tina] to mastur ba te, ” and “ [t] he jury could infer that Parks had an i nt ention to induce [T ina] to mas tur bate from the numero us other stateme n ts made by P a rk s . ” Again, w e agree

— even without the challenge d two

- minute

- and

- thirteen

- se cond
excerpt, the ju r y could have infer red Parks ’s intention to author ize or induce Tina to
masturbate based on Parks ’s numer ous other sta tements , in cluding the equiv ocal
nature of his un ch a ll enged reiteration that h e would “ proba bly not ” slee p with Tin a .21

Because Parks ’s c hal lenge to the video w as only partially preserved, because he
has not presen t ed a sufficient appellate rec ord for us to determine which part wa s
pre s erved , because an y err o r in the a dmission of th e challenged evi dence was
har mless anyway , and because he c onc edes t he harmless nature of the error, we overrul e his second issue.
C

. Section 43. 25 is not unconsti tutional as applied to Parks

. 13
Final l y, P a rks ar gues that t he se x u al

- performance statute

— Penal C ode S ecti o n
43.25

— is unconstitutio nal as applied to h im because it infringes on his right as a stepfathe r to make child

- rea ring decisions

. See U.S. Const. ame nd. X I V ; 14 c f. Troxel v. Granville , 530 U.S . 5 7, 65

– 66, 120 S. Ct. 2054, 20 60 (2000) (plural it y op. ) ( summa riz ing

“ extensive precedent ” protecting parental rights and stating that “ i t cannot now be
doubted that the Du e Process Clause of the Fourteenth Amendmen t protects the
fundament al ri ght of par ents to make d ecisions c oncern ing the c are, custo dy , and
control of th eir children ” ).

13 P ark s al s o argue s that th e legislat ur e did not intend fo r the sexual

perf orma nce statute t o be applied to cases such as this one

. P ark s claims that the
sex ual

- performance st atute wa s inten ded to punish t hose who use children for po rnographic purposes

— no t to punish s tep pare nts
. But as the S tate point s out , “ [w ] hen inter preting criminal statutes, courts focus on the plain languag e of t h e text, for that is the foremost indicati on of legis lative intent

. ” S t ate v. Mays , 967 S.W.2d 404, 408 (Tex. Crim. App. 199 8) (quotin g Hines v. State , 906 S.W.2d 518, 520 (Tex . C rim. App. 1995) ). B ecause Parks ’s offense is within the plain language o f th e sexual

performance statute , it is withi n the inten ded scope
.

14 Park s also cites the Fifth Amendment Due Process Claus e . See U.S. C onst. amend. V.22

“ An as

- ap plied challenge to the constitutionality of a law asserts that the law is

unc onstitutional as it was applied to the Appe llant ’ s particular facts and
circum stan ces. ” Ex Parte Shires , 508 S.W.3d 856, 861 (Tex. A pp.

— Fort Wort h 2 016 , no pet.)

. P a rks frames his particular facts an d circumstances as having purchase d a nd
prov ide d a vibr ator for legitimate educational and medical child

- rearing purposes

. But
as th e St ate points out, the jur y rejecte d this factual the o ry when it re jected Parks ’ s affirmative defense tha t he had provided the vi brator for a bona fid e educatio nal or medical purpose
. See Tex. P enal Code Ann. § 43.25(f). Therefore, w e overrule
Parks ’ s t hird issue.
I I I. C o nclus i on
Hav ing o ver ruled Pa rks ’ s three issues , we affirm the trial c ourt ’s judgmen t
. Tex. R. App. P. 4 3.2( a

)

.

/s/ Bonnie Sudderth
Bonnie Sudde rth Chief Justice
Do Not Publish Tex. R. A pp. P. 47. 2(b)
Delivere d : March 2, 2023