In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 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.

Memorandum Opinion by Chief Justice Sudderth

JAMES KEVIN JOHNSON, Appellant

V. 

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. Introduction

A jury found Appellant James Kevin Johnson guilty of online solicitation of a 

minor and assessed his punishment at five years in prison and a $3,000 fine. The jury 

further recommended that the trial court suspend Johnson’s sentence and place him 

on community supervision. The jury did not recommend suspending the $3,000 fine. 

In accordance with the jury’s verdict, the trial court sentenced Johnson to five years’

confinement, suspended Johnson’s sentence, and placed him on community 

supervision for eight years. The trial court fined Johnson $3,000 but did not suspend 

the fine.

In the trial court’s judgment, however, the space for identifying the length of 

confinement is left blank. Further, the box for indicating that the trial court 

suspended Johnson’s sentence and placed him on community supervision was not 

checked. Had the box been checked, it would have correctly indicated that the trial 

court had placed Johnson on community supervision for eight years. The judgment 

correctly reflects that Johnson was fined $3,000 and that the fine was not suspended.

Nine days later, the trial court attempted to correct the above clerical errors in

an order nunc pro tunc. This order correctly reflects that the trial court sentenced 

Johnson to five years’ incarceration, suspended his sentence of confinement, and 

placed him on community supervision. But it incorrectly provides that the trial court 
3

placed Johnson on community supervision for five years (not the eight years stated at 

Johnson’s sentencing).

On appeal, in one issue, Johnson contends that no evidence supported the 

finding that he committed the solicitation “over the Internet,” as—he argues—the 

statute requires. Johnson maintains that there was no evidence that any of the text or 

electronic messages were sent over the Internet. The State responds that “over the 

Internet” was but one manner and means and that other manner and means were

both authorized by the statute and proven at trial. 

The State further requests that the judgment be modified to correctly reflect 

that the trial court suspended Johnson’s sentence and placed him on community 

supervision for eight years. 

We agree with the State, overrule Johnson’s issue, modify the judgment to 

reflect that the trial court placed Johnson on community supervision for eight years, 

and as modified, we affirm the trial court’s judgment.

II. Discussion

A. The Statutory Language and Johnson’s Construction

Johnson was convicted of “Online Solicitation of a Minor” or, more 

specifically, Section 33.021(c) of the Texas Penal Code:

(c) A person commits an offense if the person, over the Internet, 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 
4

the minor will engage in sexual contact, sexual intercourse, or deviate

sexual intercourse with the actor or another person.

Tex. Penal Code Ann. § 33.021(c). Johnson argues that “[u]nder a plain reading of the 

statute, ‘over the Internet’ is a necessary element of the offense that can be 

accomplished ‘by electronic mail or text message or other electronic message service 

or system, or through a commercial online service.’” We disagree.

B. Construing Statutes

When interpreting statutes, we look to their literal text and attempt to discern 

their 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 unambiguous, our 

analysis ends. Id. Courts do not add or subtract from such a statute. Id. 

Courts presume that the Legislature used every word for a purpose and 

intended for the entire statutory scheme to be effective. Id. Thus, courts should give 

each word, phrase, clause, and sentence effect if reasonably possible and will not 

choose a construction that renders a statutory provision superfluous. Id.; State v. 

Schunior, 506 S.W.3d 29, 36 (Tex. Crim. App. 2016).

C. Superfluous

We first note that Johnson’s construction would render superfluous the

provision “by electronic mail or text message or other electronic message service or 

system, or through a commercial online service.” Assuming the quoted language was 
5

illustrative of “over the Internet,” it would remain superfluous.1

 We will not, 

however, end our analysis there.

D. Terminology

Although the computer crimes’ chapter (Chapter 33) of the Texas Penal Code 

provides a section devoted to definitions, that section does not define “Internet,”

“electronic mail,” “text message,” “electronic message service or system,” or 

“commercial online service.” Tex. Penal Code Ann. § 33.01. When statutorily 

undefined terms have no established legal definition or have not acquired a technical 

meaning deviating from customary parlance, we use their commonly accepted

meanings. See generally Gardner v. State, 306 S.W.3d 274, 302–03 (Tex. Crim. App. 

2009); Pardun v. State, No. 05-16-00792-CR, 2017 WL 5897897, at *5 (Tex. App.—

Dallas Nov. 29, 2017, pet. ref’d) (mem. op., not designated for publication) (citing

Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013), and Green v. State, 476 

S.W.3d 440, 445 (Tex. Crim. App. 2015)).

When looking for general definitions,2 we have found the following:

1

Merriam-Webster defines “superfluous” as “exceeding what is sufficient or 

necessary” or “not needed.” Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/superfluous (last visited April 27, 

2023).

2

We cite the Merriam-Webster Online Dictionary, PCMagazine, and Wikipedia 

for various definitions. We do not cite them as the authoritative definition of any

word or term but as a generally understood definition of the term or word. See D 

Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 435–37 (Tex. 2017) (discussing the 

pros and cons of citing to Wikipedia). Our analysis requires placing some working 
6

• The “Internet” is “an electronic communications network that connects 

computer networks and organizational computer facilities around the 

world—used with the except when being used attributively.”3

• An “email” is “a means or system for transmitting messages 

electronically (as between computers on a network).”4

• A “text message” is “a short message sent electronically usually from one 

cell phone to another.”5

 

• An “electronic message service” is “[t]he part of the radio spectrum 

assigned to electronic messaging over digital satellite circuits.”6

context on the words and terms used. As two scholars noted, “The evident purpose

of what a text seeks to achieve is an essential element of context that gives meaning to 

words. Nail in a regulation governing beauty salons has a different meaning from nail

in a municipal building code.” Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 20 (2012) (footnote omitted). When faced with the 

undefined word “custody” in the Texas Rules of Appellate Procedure, the Texas 

Court of Criminal Appeals 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-accepted meaning within the context of the given rule and then 

determine whether that meaning is consistent with 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://www.merriamwebster.com/dictionary/internet (last visited April 27, 2023).

4

Email, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/email (last visited April 27, 2023).

5

Text Message, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/text message (last visited April 27, 2023). 

6

Electronic Message Service, PCMag, https://www.pcmag.com/encyclopedia/term

/ems (last visited May 1, 2023). Wikipedia defines a “digital electronic message 

service” as “a two-way wireless radio service for passing of message and facsimile data 

. . . .” Wikipedia, https://en.wikipedia.org/wiki/Digital_Electronic_Message_Service

(last visited May 1, 2023) (footnote omitted).
7

• As for “commercial online service,” the closest analogous term we have 

found is an “internet service provider,” which is defined as “[a]n 

organization that provides access to the Internet. Email accounts may 

also be part of the service. Also called an ‘Internet host,’ an ISP 

connects to users via cable, DSL, FiOS or satellite; however, ISPs can 

also deliver service via analog dial-up, ISDN, private lines and wireless 

(see WISP).”7

• “Online” is defined as “connected to, served by, or available through a

system and especially a computer or telecommunications system (such as 

the Internet).”8

Consequently, the language used by the Legislature is not exclusively illustrative 

of communications conducted over the Internet. The language used is broader. For 

example, “text messages” is a term associated with cell phones. The statute casts a 

broader net than just internet communications; it encompasses electronic

communications over the Internet or some “other electronic message service or 

system.” Tex. Penal Code Ann. § 33.021(c).

E. Not Ambiguous

We hold that Section 33.021(c) is not ambiguous. The clause, “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, 

7

Internet Service Provider, PCMag, https://www.pcmag.com/encyclopedia/term/i

sp (last visited May 1, 2023).

8

Online, Merriam-Webster Online Dictionary, https://www.merriamwebster.com/dictionary/online (last visited April 27, 2023).
8

including the actor,” expands the scope of electronic communications beyond those 

strictly “over the Internet.” We read Section 33.021(c) to provide effectively,

A person commits an offense if the person, 

[1] over the Internet, or 

[2] by

[a] electronic mail or 

[b] text message or 

[c] other electronic message service or system, or 

[3] 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.

Thus, the question here is whether Johnson’s communications with the complainant 

fall within that scope.

F. Testimony

When describing the offense of online solicitation of a minor, Detective Nate

Bishop described it in terms of electronic communications:

So online solicitation of a minor, to put very simply, it’s people -- it’s a 

person having used this electronic communication. So it could be text 

messages, you know, Instagram, direct messages; some kind of electronic 

messaging in speaking with a person that either is under 17 or that they 

believe is going to be under 17.

Johnson is correct when he asserts that Bishop did not assert that the 

communications were “over the Internet.” On the other hand, Bishop did assert that 

the communications must be electronic in some fashion.

Turning to the offense itself, Bishop stated that—posing as a child—he created 

a false profile on an application called SayHi and left it idle, but eventually someone 
9

contacted his profile. Bishop’s use of the word “application” itself requires some 

explanation:

• An “application” has been defined as “[s]oftware that is used for 

business or entertainment,” and “[t]he terms ‘application,’ ‘application 

program,’ ‘software application,’ ‘software package’ and simply ‘app’ may 

refer to virtually any type of program from spreadsheets such as Excel to

media players such as iTunes. However, the term specifically excludes 

essential control software such as the operating system.”9

• As for the term “app,” that term “has been shorthand for ‘application’ in 

the IT community for a long time. However, it became popular with the 

consumer for mobile applications after Apple debuted the iPhone in 

2008.[10] Application and app are synonymous, and it is just as correct to 

say ‘iPhone application’ as it is ‘desktop computer app.’”11 

During the testimony, communications over an app were referred to as “chats.” 

The term “chat” also has a definition:

• “Chat” refers to “[a] text communication via keyboard in real time 

between two or more users on a local network (LAN) or over the 

Internet. Although the original use of the term was only for text, ‘chat’

9

Application, PCMag, https://www.pcmag.com/encyclopedia/term/application 

(last visited May 1, 2023).

10As we will discuss later, the last amendment to Section 33.021(c) was in 2007 

and thus predated the iPhone. Some words and terms that are common today are not 

in the statute and, effectively, must be retrofitted. Yet this is not fatal to our analysis.

When discussing textualism, authors Justice Antonin Scalia and Bryan Garner wrote, 

“Textualism, in its purest form, begins and ends with what the text says and fairly 

implies.” Scalia & Garner, supra note 2, 16. To illustrate this principle, they wrote, 

“Hence a 2012 statute referring to aircraft, if still in effect in 2112, would embrace 

whatever inventions the label fairly embraces, even inventions that could not have 

been dreamed of in 2012.” Id.

11App, PCMag, https://www.pcmag.com/encyclopedia/term/app (last visited 

May 1, 2023).
10

became popular for every two-way communication,” and thus “[a]udio 

and voice evolved into ‘audio chat’ and ‘voice chat.’ Videoconferencing 

and video calling became ‘video chat.’”12 

• Regarding any distinction between chats, texting, and instant messaging,

PCMag provides the following comments, “All three terms are used 

synonymously. Texting (SMS) is built into every cellphone and usage 

only requires the recipient’s phone number. All other chat services use a 

computer or phone app. Some require establishing an account and

creating a contact list.”13

Accordingly, the communications at issue might have been over the Internet; 

regardless, they were electronic.

Bishop went on to say that at some point, possibly by the first day, the 

communications transitioned from the SayHi application to phone text messages. 

Thus, at this point, we have two forms of electronic communications—chats over the 

SayHi application and text messages over Johnson’s and the complainant’s cell 

phones. To function, both had to be accomplished over the Internet or some “other 

electronic message service or system.”

Bishop testified that once the communications transitioned to text messaging, 

he had a phone number from the sender that he was later able to trace to Johnson.

Through text messaging, Bishop and Johnson agreed to meet at a park. When 

Johnson appeared at the park, police arrested him.

12Chat, PCMag, https://www.pcmag.com/encyclopedia/term/chat (last visited 

May 1, 2023).

13Id.
11

G. Evidence Sufficient

We hold that the chats and text messages here fall within Section 33.021(c)’s

scope. Thus, the evidence is legally sufficient to support Johnson’s conviction. See 

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) (stating that when 

determining evidentiary sufficiency, appellate courts view all the evidence in the light 

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

found the crime’s essential elements beyond a reasonable doubt).

H.Assuming the Statute is Ambiguous

Although perhaps inartfully drafted, Section 33.021(c) is not ambiguous insofar 

as it addresses types of communications. It applies to (1) communications over the 

Internet; (2) communications by electronic mail, text message, or other electronic 

message service or system; and (3) communications through a commercial online 

service.

But even assuming Section 33.021(c) is ambiguous, its legislative history leads

us to the same result. 

When first enacted in 2005, Section 33.021(c) provided,

A person commits an offense if the person, over the Internet or by 

electronic mail or 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.

Act of May 25, 2005, 79th Leg., R.S., ch. 1273, 2005 Tex. Gen. Laws 4049, 4050 

(amended 2007) (current version at Tex. Penal Code § 33.021(c)). As originally 
12

written, Section 33.021(c) addressed communications “over the Internet” or “a 

commercial online service,” which, as the above definitions show, appeared to have 

been more closely aligned with Johnson’s position. 

But in 2007, the Legislature amended Section 33.021(c) in House Bill 401 to 

expand its scope. The 2007 version added language to provide,

A person 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.

Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, sec. 33.021(c), 2007 Tex. Gen. Laws 

1167, 1168 (codified at Tex. Penal Code § 33.021(c)). 

The legislative history confirms that expanding the scope of electronic 

communications was the purpose of amending the statute. Three bill analyses address 

the change to Section 33.021(c): 

1. First Bill Analysis

The first bill analysis states that the amendment was designed to expand the 

scope of electronic communications to keep pace with technological advances:

BACKGROUND AND PURPOSE

Current statute does not explicitly contain certain types of

communications that are considered sexual offenses against minors or 

certain students. With technological advances, new methods of 

communications between adults and minors or students are constantly 

being created. Dangerous predators are protected from prosecution by 
13

using text messages or other electronic message service or system for 

solicitation of a minor.

H.B. 401 adds text messaging and other electronic message services or 

systems as ways that a person can commit an offense of solicitation of a 

minor.

House Comm. on Crim. Juris., Bill Analysis, Tex. H.B. 401, 80th Leg., R.S. (2007).

2. Second Bill Analysis

The second bill analysis reiterates that the amendment’s purpose is to expand

the scope of electronic communications:

BACKGROUND: . . . .

Under Penal Code sec. 33.021(c), it is an offense to use the Internet, 

electronic mail or a commercial on-line service knowingly to solicit a 

minor to meet another person, with the intent that the minor will engage 

in sexual contact, sexual intercourse, or deviate sexual intercourse. This 

offense is a third-degree felony (two to 10 years in prison and an 

optional fine of up to $10,000), unless the minor is younger than 14 

years old or is believed to be under 14, in which case it is a seconddegree felony.

. . . .

DIGEST: HB 401 would add the use of text messages or other 

electronic message services to the ways in which the offense of on-line 

solicitation of a minor could be committed.

House Comm. On Crim. Juris., Bill Analysis, Tex. H.B. 401, 80th Leg., R.S. (2007).

Notably, this analysis states that opponents of the bill saw the amendment as 

unnecessary; it states, “OPPONENTS SAY: HB 401 is unnecessary because the 

actions described by [the] bill already are illegal and already appropriately punished.” 

Id.
14

3. Third Bill Analysis

The third bill analysis notes the shortcomings in the 2005 version of the law 

and asserts that the amendment was designed to broaden the statute’s scope:

AUTHOR’S / SPONSOR’S STATEMENT OF INTENT

. . . . While it is a crime to use certain types of technology to solicit 

minors . . . , limited definitions of both crimes are a shortcoming in the 

current law.

H.B. 401 adds the use of text messages or other electronic message 

services to the list of ways in which the offense of online solicitation of a

minor may be committed.

S. Research Ctr. On Crim. Just., Bill Analysis, Tex. H.B. 401, 80th Leg., R.S. (2007).

So even assuming that Section 33.021(c) is ambiguous, we conclude that the

legislative history shows that it was amended to encompass the chats and text 

messages here and, thus, that the evidence is sufficient to support Johnson’s 

conviction. See Queeman, 520 S.W.3d at 622.

I. Ruling

We overrule Johnson’s issue.

III. Clerical Error in Judgment

The State notes that the trial court’s order nunc pro tunc incorrectly states that

it placed Johnson on community supervision for five years. When sentencing 

Johnson, the trial court stated that it was placing him on community supervision for 

eight years. The oral pronouncement controls. See Estrada v. State, 647 S.W.3d 923, 

926 (Tex. App.—Fort Worth 2022, pet. ref’d) (mem. op.). The State thus requests 
15

that the judgment be modified to correctly reflect that the trial court suspended 

Johnson’s sentence and placed him on community supervision for eight years. 

We can correct clerical error and reform the trial court’s judgment “to make the 

record speak the truth” when we have the necessary information to do so. Barner v. 

State, No. 02-22-00043-CR, 2023 WL 164088, at *2 (Tex. App.—Fort Worth Jan. 12, 

2023, no pet. h.) (mem. op., not designated for publication). “We can effectively 

render a judgment nunc pro tunc.” Id. We agree with the State and correct the 

judgment to reflect that the trial court suspended Johnson’s sentence for eight years.

IV. Conclusion

We overrule Johnson’s issue. To correct the clerical error, we delete the 

language in the trial court’s May 13, 2022 “Nunc Pro Tunc Order Correcting Minutes 

of the Court” showing, “Defendant placed on community supervision for 5 years,”

and in its place, we modify that order to reflect, “Defendant placed on community 

supervision for 8 years.” As modified, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Do Not Publish

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

Delivered: May 11, 2023