## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ N o. 02

- 22

- 00091

- CR

___________________________

On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1717997R

Before Sudderth, C.J.; Bassel and Womack, JJ. M emorandum Opinion by Chief Justice Sudderth 

### J AMES 

### K EVIN 

### J OHNSON 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPI NION
I. Introduction A jury foun d Appell ant J ames Ke vin Joh nson guilty of online solicitation of a minor and assessed his punishment at five year s in prison and a $3,000 fine. The jury
fur ther recommended that the trial cou rt suspend J ohns on ’ s sent ence and place him on community supervisio n. The jur y did not recommend suspending the $3,000 fine. In accordance with the jury ’ s verdict, t he trial c ourt se ntenced Johnson to five years ’
confinemen t, suspen ded Johnso n ’ s sentence , and pl aced him on community supervision for eight years. The tri al c ourt fined J ohn son $3,000 but did n ot suspend
the fine.
In t he trial court ’ s judgment, however, the space for identifying the leng th of

co nfinement is le f t blank. Further, the box for indicat in g that the trial court suspended Johnson ’ s sentence and placed him on community s upervision was not checked. Had the box been checked, it would have correctly indicate d that the t rial court had pl aced Johnso n on community supervision for eight years. The judgment correctly reflects that Jo hnson was fined $ 3,000 and tha t the fine was not suspended. Nine day s later, the trial court attempted to correct the ab ov e clerical errors in

a n orde r nunc pro tunc
. T his ord er cor rectly reflects that the trial court sentenced Johnson to five years ’ incarceration , su spended his sentence of confi nement, and
p laced him on community supervision

. But it inc orrectly provide s that th e tri al court3 placed J ohnson on commun ity supervision for five years (not the eight years stated at J ohnson ’ s sentenci ng)

. On appeal, i n one issue, John son conte nds that no evidence supported the
fi n ding th at he co mmitted the solicitation “ over the Internet, ” a s

— he argues

— the

stat ute requires

. Johnson maintains that there was no evidence that any of the text or electronic messages were sent o ver the Intern et. The State re spon ds that “ over the
Interne t ” was but one manner and means and th at other manner and mea ns were both authorized by t he statute an d proven a t trial.
T he State further requests that the judgment be mo dified to co rrectly reflect
that th e trial court suspe nded Johnson ’ s sentence and pl ace d him on communi ty supervision for eight years. We agre e wi th the State , overrule Johns on ’ s issu e, mo dify the judgment to
refle ct that the trial court placed Johnson on community supervision for eight ye ars, and as modifi ed, we affirm the trial court ’ s judgment.
II. Discussion
A. The St atutory Lang uage and J ohnson ’ s Construction Johnson was convicted of “ O nline S olicita tion of a M inor ” or , more specificall y , Section 33.021 ( c) of the Texas Penal Code: (c) A person commits an offen se if the person, over the Int ernet, by ele ctronic mail or text mes sage or other electroni c message service or system, or through a commercial o nline service, knowingly solicits a
m inor to mee t another person, including the act or, with the intent that4 the minor will engage in sexual co ntact, sexual intercourse, or deviate sexual intercourse wit h the actor or another person.
Tex. Pen al Code Ann. § 33.021 (c)

. J ohnson argues that “ [ u

] nder a plain reading of the
statute, ‘ over the Internet ’ is a necessary elem e nt of the offense that can be

a ccomplished ‘ by electronic mail or te xt message or other electronic message service
or system, or through a commercial online service. ’ ” We disagree.
B. Construing Statu tes
When interpret ing statutes , we lo o k to the ir literal t ext and att empt to discern
the ir fair, objective meaning at the time of their enactment. Herron v. State , 625 S.W.3d 144, 153 (Tex. Crim. App. 2021)

. If the language is clear and unam biguous, our analysis ends

. Id. Cour ts do not ad d or subtract from such a statut e. Id. Courts presume that the Leg islature used every word for a purpose a nd
intend ed for the entire statutory scheme to b e effective. Id. Thus, cou rts should give
each w ord, phrase, clause, an d sentence effe ct if reaso n ably possible and will not
choo se a construc tion that renders a stat utory provision superfluous. Id. ; State v. Schun ior , 506 S .W.3d 29, 36 (Tex. Crim. A pp. 2016)

. C. Superfluous
We fir st note that J o h nson ’ s construction would render superfluous t he provisi on “ by ele ctronic mail or text me ssage or other electronic message ser vice or system, or through a commercial o nline service

. ” Assuming the quoted language was5 i llustrative of “ over t he Internet, ” it would remain sup erfl uous. 1 We will not, however, end our analysis there.
D. Terminology Although the comp uter crimes ’ chapter (Chapter 33) of t he Texas Pe nal Code
prov ides a section devoted to definitions, that section does not define “Inter net , ”
“elect ronic mail, ” “text me ssage, ” “electronic mes sage service o r sy stem, ” or
“commercial online service. ” Tex. Penal Code Ann. § 33.0 1. When statu torily
undefined term s ha ve no established l egal d efinition or ha ve not acquir ed a tech nical meaning deviating from customary parlance , we use the ir commonly accepted

mean ing s . See gen e rally Gardner v. State , 306 S.W.3d 274, 302

– 03 (Tex. Crim. App. 2009) ; P ardun v. State , No. 05

- 16

- 00792

- CR, 2017 WL 5897897, at *5 (Tex. App.

— Dallas Nov. 29, 2017, pet. re f’d) (mem. op., no t designated f o r public ation) (citing
Celis v. State , 41 6 S.W.3d 419, 433 (Tex. Crim. App. 2013) , a nd Green v. State , 476
S.W.3d 44 0, 445 (Tex. Crim. App. 2015) ).
W hen looking for general definit ions, 2 we have found the following:

1 Merriam

- Webster defines “ s uper fl uou s ” as “ e xceedi n g wha t is sufficient or necessary ” or “ not ne eded. ” M erri am

- W ebster O nli ne Dictionar y, https://www.merriam

- webster.com/dictionary/superfluous (last vi sited April 27 , 2023).

2 We cite the Merriam

- Webster Online Dictionary, PC Magazine, and W ikipedia f

or vari ous d efinitions. We do not cite them as the a uthoritative defin it ion of any
w ord or term but as a generally understood definition of the term or wor d

. See D Magazine Partners, L.P. v. Rosenthal , 52 9 S.W.3d 429, 435

– 37 (Tex. 2017) (discus si ng the pro s and c ons o f citing to Wikipedia ). Our analysis re quires plac ing som e working6 • The “ In terne t ” is “ an electronic communi c ations network that connects computer ne tworks and organizational computer facilities around the world

— used with the except when being used attribut ively

. ” 3

• An “ em ail ” is “ a means or system for transmitting messages elect ronica lly (as between computers o n a network)

. ” 4

• A “ te x t message ” is “ a s h ort message sent elec tronically usually from one cell phone to an other. ” 5

• An “ el e ctronic message service ” is “ [t ] he pa rt of the radio spectrum
as signed to electronic messaging ov er digital satellit e circuits. ” 6

cont ext on the w ords and terms used. As two scholar s noted, “ The eviden t purpo se of what a text seeks to achie ve is an essential elem ent of context that gives meani ng to words. Nail i n a r egulation governing beauty salons has a different meaning from nail in a municipal building co d e . ” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 20 (2012) ( footnote omitted)

. When faced with the
u nd efin ed wor d “ cust ody ” in the Te xas Rules of Appellate P rocedur e, the Texa s Court of Criminal A ppeals wrote, “ A more appropriate manner of interpreting the meaning of a word or phrase used in the Texas Rules of Appellate Procedure is to apply its commonly

- a ccepted me aning w ithin the context of the given rule and then determine whether that meaning i s consistent wi th the purpose of the rule. ” Luciano v. State , 906 S.W.2d 523, 524 (Tex. Crim. App. 1995)

.
3 Internet , Merriam

- Webster Online Dictionary, https:// ww w.merriam

webster.com/ dictionary/internet (last visited April 27 , 202 3 ).

4 Email , Merriam

- Webste r Online Dictionary, https://www.merriam

webster.com/dictionary/email (last visited April 27 , 202 3 ).

5 Text Message , Merriam

- Webster Online Dictionary, https://ww w. merriam

webster.com/ dictionary/text message (last visited Ap ril 27 , 202 3 ).

6 Ele ctronic Messag e Ser vice , PCM ag, https://www.pcmag.com/encyclopedia/term /ems (last visited May 1 , 202 3 ). Wikipedia defines a “ digital e lectronic message service ” a s “ a two

- wa y w ireles s ra dio se rv ice for passing of message and facsimile data

. . . . ” Wik ipedi a, https: //en .wikipedia.org/wiki/Digital_Electronic_Message_Service (last visited May 1 , 2023) (footnote omitted).7 • As for “comm e rcial online service , ” th e closest an al ogous term we have found is an “ inte rnet service provi der, ” which is define d as “ [a] n organiza tion that provides a ccess to the Internet. Email accounts may also be par t of the service. Also called an ‘ Internet host , ’ an ISP connects to user s via cable, DSL, FiOS or satellite; however, ISPs can also deliver service via analog dial

- up, ISDN, privat e lines and wireless ( see WISP). ” 7

• “ Online ” is defi ned as “ connected to, served by, or available through a system and especially a computer or t ele communications system (such as the Internet)

. ” 8
C onsequently, the langu age used by the L eg islature is not e xclusive ly illustrative
of communications con ducted over the Internet . Th e lan guage used is broader. For example, “ te xt mes sages ” is a term assoc i ated with cell phones. The stat ut e c asts a broader net than just internet communications; it encompasses el ectronic

commu nications over the Internet or some “ other electronic messag e service or
system
. ” Tex. Pen al Code Ann. § 33.021 (c)

. E. Not Ambiguous
We h old that Section 33.021 (c) is not amb iguous

. The clause, “by electronic mail or text message or other elec tronic me ssage service or system, or through a commercial online service, knowingly solicits a minor to meet another person,

7 Internet Service Provider , PCMag, https://www.pcmag .c om/encyclop edia/term/i
s p (last visited M ay 1 , 202 3 ).

8 Online , M erriam

- Webster Online Diction ary, https://www.merriam

webster.com/dictionary/online (last visited April 27 , 202 3 ).8 including the actor , ” e x pands the scope of elect ronic communi cations beyond those strictly “ o ver the Internet. ” We read Section 33 .021 (c) t o provide effec tively , A person commits an offense if the person , [ 1 ] over the Internet, or [ 2 ] b y [a] electronic mail or [b] text messa g e or [c] other electronic message se rvice or system, or [ 3 ] through a commercial online service, knowing ly solici ts a minor to meet another person, including the acto r, with the intent that the minor will engage in sexual contact, sexual intercourse, o r deviate sexual intercourse with the actor or another person. T h us , t he question here is whether Johnson ’ s communi c ations with the complainant
fall wi thin that s cope.
F. Testimony
Wh en describing the off ense of online solicitation of a minor, Detective Nat e Bishop described it in terms of electronic communications : So online solicitation of a minor, to put v ery s imply, it’s people

-- it’s a person having used this electro nic communication. So it could be text messages, you kn ow, Instagram, dire ct messages; some kind of electronic messaging in sp eaking with a person that either is under 17 or that they believ e is going to be under 17. John son is correct wh en he asserts that Bishop did not a ssert that the
communic ation s were “ over the Inter n et. ” On the other hand, B ishop did assert that
the communications must be electronic in some fashion.
Tu rning to t he offense itself , Bish op stated that

— posing as a child

— he created a false p rofile on an application called S ayHi an d left it id l e , but eventually someon e9 contacted his pro fi le

. Bishop ’ s use of the wor d “ application ” itself requires some explanation:

• An “ application ” has been def ined a s “ [s] oftware that is used for busin ess or entertainment , ” and “ [t] he terms ‘ applic ation, ’ ‘ application prog ram, ’ ‘ software application, ’ ‘ software package ’ and simply ‘ app ’ may refer to vir tually any type of program from spreadsheets s uch as Excel to media players suc h as iTunes. However, the ter m specifically excludes
es sentia l contro l software such as the op erating system

. ” 9

• As for the term “ app, ” that term “ has been sho rt hand for ‘ ap plication ’ in the IT commun ity for a long time. However, it became popul ar with t he consumer for mobile application s afte r Apple debuted the iPhone in 2008. [ 10 ] Application and app are synonymous, and it is just as correct to say ‘ iPhone applica tio n ’ as i t is ‘ desktop comput er app. ’ ” 11 During the test imo ny, communications over an app were referred to as “ chats. ”
The term “ chat ” a lso has a definition:

• “ C hat ” refers to “ [a] tex t communication via keyboard in real time between tw o or more users on a local net work (LAN) or over the I nternet. Alth ou gh the original use of the term was only for text, ‘ chat ’

9 Application , PCMag, https://www.pcmag.com/encyclopedia/term/application (l as t visited Ma y 1 , 202 3 ).

10 As we will discuss later, the last amen dme nt to Sec ti on 33.021 ( c) w as in 2007 and thus predated the iPhone. Some words and terms that are comm on today are not in the stat ute and, effectively, must be retrofitted. Yet t his is n ot fatal to our analysis. W hen discussing textualism, authors Justi ce Antonin Sca li a and Bryan Garner wrote , “ Textualism, i n its purest form, begins and ends with what the te xt says and fai rly implies. ” Scalia & Garner, supra note 2, 16. To illustrate t h is principle, th ey wrote,

“ H ence a 20 12 statute referring to aircraf t , if still in ef fect in 211 2, would em brace whate ver inventions the label fairly embraces, even inventions that could not have been dreamed of in 2012. ” Id.

11 App , PCMag, https://www.pcmag .c om/encyclo pedi a/term/app ( last visited May 1 , 202 3 ).10 became popul ar for every two

- way communication , ” and thu s “ [a] udio and vo ice evolved into ‘ audio chat ’ and ‘ voice chat. ’ Videoconferencing and video calling became ‘ vide o chat. ’ ” 12

• Regarding an y distin ction between chats, textin g, and instant messaging, PC Mag provides the following comments , “ All three ter ms are used synonym ously. Texting (SM S) is built into every cellphone and usage only requires the recipient ’ s phone number. Al l other chat s er vices use a computer or phone app

. Some require establishing an account and creating a contact list

. ” 13
A ccor dingly, the comm unica tions at issue might have been ov er the Internet ; regardless, they wer e electronic

. Bish op went o n to say tha t a t som e poin t, possi bly b y the first d ay, the
communications transitioned from the SayHi application to phone te xt messages. Thus, at this poin t, we ha ve two forms of ele ctronic communications

— cha ts over the
S ay H i applicat ion and text messages over John son ’ s and the complain ant ’ s cell phones. To fu nction, both ha d to be accomp lished over the I nternet or some “ other electronic message service or system
. ”
Bish op testified t hat o nce the communication s transi tioned to text me ssag ing,
he ha d a ph one number f rom the sender that he was later able to trace to Johnson

. Th rough text messaging, Bishop and Johnson agreed to meet a t a park. W hen Johnson app eared at the park, police a r rested him

.

12 Chat , PCMag, https://www .pcmag.com/enc yclopedia/term/chat (last visited May 1 , 202 3 ).

13 I d.11 G. Evidence Sufficient
W e hold tha t t h e chats and te xt messages here fal l within Section 33.021( c) ’ s
scope
. T hus , the evi dence is leg ally suf ficient to support J ohnson ’ s convicti on . See Queeman v. State , 520 S .W.3d 616, 622 (Tex. Cr im. App. 2017) (stating that when
determin ing evidentiary sufficiency, appellate courts view all the evidence in the l ight
most fav orable to the verdict to determin e whether any rational factfinder cou ld have
found t he crime’s e ssent ial elements beyond a r easonable doubt )

. H. Assuming the Stat ute is Ambi g u ous Although perhaps inartfully d rafted, Sectio n 33.021 (c) is not amb iguous in sofa r as it addresses types of commun ications

. It applies to (1) communicat ions over the
Internet ; ( 2) communications by elect ro nic mail , text message, or other electronic message service or system ; and (3) communications th rough a commercial onl ine
service.
But eve n assuming Section 33.021 (c) is ambiguous, its legislative histor y lead s

us to the same result

. W hen first enac te d in 2005, Section 33.021 (c) pr ovided, A person comm its an offense if the person, over the Intern et or by electronic ma i l or a comm ercial o nline service, k nowingly solicits a minor to meet another person, including the actor, with the inte n t that the min or will engage in sexual contact, sexu al intercourse, or deviate sexual intercourse with the actor or another person.
Ac t of May 25, 2005, 79 th Leg., R.S., ch. 1273, 2 005 Tex. Gen. Laws 4049, 4050 (am ended 2007) (curren t version at Tex. Pen a l Code § 33.02 1 ( c) ). As originally12 written, Section 33 .0 21 (c) addre ssed communications “ over the Internet ” or “ a commercial online ser v

ic e, ” which , as the above definitio ns show, appeared to have
been more closely aligned with J ohnso n’ s position

. But i n 2007, the Legi sl ature amended S ection 33.02 1 (c) in Hou se Bill 401 to expand its scope. The 2007 version added language to pro v ide, A p erson commits an offense if the person, over the Internet, [ or ] by electronic mail or text message or other electronic message service or system , or through a commercial online service, knowingly solicits a minor to meet another person, including the actor , with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
A ct of M ay 21, 2 007, 80 th Leg. , R.S. , ch. 610 , § 2, sec. 33.021 (c) , 2007 Tex. Gen. Law s 1167, 11 68 (c odifi e d at Te x . Penal Code § 3 3.021 (c) ). The legi slativ e history confirms that expanding the s cope of electronic

commu nica tions was the purp o se o f a mending the s ta tute. Three bill analyses add ress the change to Section 33.021 (c ):
1. F ir st Bill An aly sis
The fir st bil l analysis states that t he amendment was design ed to ex p and the

s cope of elect ronic communications to keep pa ce with technological a dvan ces: BACKGROUND A ND PURPOSE Current statute does not explicitly contain certain types of communications that are c onside red sexual offenses ag a inst minors or certain s tudents. With techno logical advances, new methods of communic ations between adults a nd m inors or students are constantly being created. Dangerous predators are protected from prosecution by13 using text messag es or other electronic m essage service or syste m for solicitation of a minor. H.B. 401 adds text messaging a nd other electronic mes sa ge services or syst ems as ways that a person can commit an offense of solicitation of a mi nor.
House Comm. on Crim. Jur is ., B ill Analysis , Tex

. H.B. 401, 80 th Leg., R.S. ( 2007 )

. 2. Second Bill An alysis
The second bill analysis reiterates that the amendment ’ s purpose is to expand the scope of electroni c communications:
BAC KGROUND:

. . . . Under Penal Code sec. 33.021( c), it is an o ffense to use the Internet, electronic mail or a comme rcial on

- li ne service knowingly to solicit a minor to meet another person, with the i nt ent that t he minor wil l engage in sexual con tact, sexu al intercourse, or deviate sexual intercourse. Thi s offense is a third

- degree felony (two to 10 years in prison and an option al fine of up to $10,000 ), unless the minor is younger than 14 years old o r is believe d to be under 14, in wh ich case it is a seco nd

degree felony.

. . . . DIGEST: HB 401 would add the use o f text mes sages or other electronic message services to the ways in which the offense of on

- line solicitation of a minor could be committed

. H ouse Comm. O n Crim. Juris ., Bil l Analysis, Tex. H .B. 401, 80 th Leg., R.S. ( 2007 )

. No ta bly, t h is analys is st ates that opponents of the bill saw the amendment as

unn eces sary ; it state s, “ OPPONENTS SAY: HB 401 is unnecessary because the
actions described b y [ t he ] b ill already are illegal and already appropriately pun is hed. ”
Id.14 3. Thi rd Bill Analysis
The th ird b ill ana lysis notes the shortcomings in the 2005 version of the law
and asserts that the amend ment was designed to broaden the statute ’ s scope: AUTHOR ’ S / SPO NS OR ’ S STATEMENT OF INTENT

. . . . While it is a crime to use certain types o f technology to soli c i t m ino rs
. . . , limited definitions of both crimes are a shortcoming i n the current law.
H.B. 401 adds the use of text messa ges or other electronic messag e services to the list of ways in which the offense of o nline solicitation of a minor may be commi tt ed.
S. Research Ctr. O n Crim. J ust., Bill Analysis, Tex. H.B. 40 1, 80 th Leg., R.S. ( 2007 )

. So even a ssuming that Section 33.021 (c) is ambig uou s, we conclude that the
le g islat iv e history shows t hat it was amended to encompass the chats and te xt
messages he re and, thus, t hat the evidence is sufficient to support Johnson ’ s

c onviction. See Queeman , 520 S.W.3d at 622

. I. Ruling
We overrule Johnson ’ s issue.
III. Clerical Error in Judgm ent
T h e S tate notes tha t the trial court ’ s order nunc pro tun c incorre ctly states t hat it p laced Joh nson on c ommuni ty supervision for five ye ars
. Whe n sentencing J ohnson, the trial cour t stated that it was placing him on community supervision for eight ye ars. The oral pronounc e ment controls. See Estrada v. State , 647 S.W .3d 923,
926 ( Tex . App.

— Fort Wo rth 2022 , pet. ref’d) (mem. op
. )

. The State thus requests15 that the judgment be mo dified to co rre ctly reflect that th e trial court suspended Johnson ’ s sentence and pla ce d hi m o n communi ty su p ervision for eight years.
We can correct cleri cal error and reform the tri al court ’ s judgment “to make the record speak the truth” when we have the necessary in formation to do so. Barner v.
State , No. 02

- 22

- 00043

- CR, 2023 WL 1640 88, at *2 (Tex. App.

— Fo r t Worth Jan. 12, 2023, no pet. h.) (mem. op., no t desig nat ed f or publication ). “ We c an effectively render a judgment nunc pro tunc. ” Id. We agree with the S tat e and correct the judgment to reflect that the trial court suspended J ohns on ’ s sentence for e i ght years.
IV. Conclusion
We overrule Johns on ’ s issu e . To correct the clerical erro r, we de l ete the language in the trial court ’s May 13, 2022 “Nunc Pro Tunc Order Corre cting Minutes
of the Court ” showing , “Defendant placed on community su perv is ion for 5 y ears , ”
and in its place, we m odify th at order to re flect , “Defend ant placed on comm unity

su p ervis ion for 8 years. ” A s modified, we affirm the trial court ’ s judgment. /s/ Bonnie Sudderth
B onnie Sudderth Chief Justice Do No t P ubl ish Tex. R. App. P. 47.2(b)
Delivered : May 11, 2023