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A man who intended to have sex with a 13-year-old girl can be convicted for attempting to commit the crime even though the girl doesn’t exist, the Texas Court of Criminal Appeals said in a unanimous ruling on April 11. In Chen v. State of Texas, the court held that evidence presented at Bailey Lishian Chen’s trial was sufficient to convict him of attempted sexual performance of a child. Court records show that the “child” turned out to be a 47-year-old Dallas police detective working undercover who posed as a 13-year-old girl in e-mail correspondence with Chen. The CCA, in an opinion written by Judge Sue Holland, said that it would have been impossible for Chen to complete the offense but that he had “specific intent” to do so and engaged in more than mere preparation to have sex with an underage girl. “He thought she existed, and that’s good enough,” says State Prosecuting Attorney Matthew Paul, who calls the ruling significant. Paul says the CCA held in 1995′s Lawhorn v. State that legal impossibility is a defense but factual defense is not. In Chen, the court has defined legal impossibility to “nothingness,” he says. “The court has defined legal impossibility so narrowly that it would be hard to conceive of a case where legal impossibility would be a defense,” Paul adds. George Dix, a professor at the University of Texas School of Law, says the CCA’s opinion is consistent with the modern trend to abolish any sort of impossibility defense. “I would have been amazed if it [the decision] came out the other way,” Dix says. Holland noted in the opinion that Chen posted an advertisement on an Internet bulletin board in December 1996, stating: “A nude dancer needed for discreet pleasure. I am generous and rich. You must be very attractive and young.” According to the opinion, Detective Steve Nelson, a Dallas police officer working on a specialized crime task force involving child exploitation, responded to the ad and signed his e-mail “J. Cirello.” In subsequent e-mails, Nelson described himself as a 13-year-old named “Julie” who possibly was interested in sex “if the right person came along to explain things and help [her],” the opinion said. Holland said in the opinion that Chen made a date to meet Julie on Feb. 11, 1997, at the Best Western motel in Garland, Texas. When arrested at the motel by Garland police, Chen had a package of condoms and a tube of KY Jelly on the console of the minivan, the opinion noted. “He later gave a voluntary statement in which he admitted that he was going to show a girl how to have sex,” Holland wrote. Chen waived his right to a jury trial and was convicted of the third-degree felony in a bench trial before Judge Ed King of Criminal District Court No. 2 in Dallas. King placed Chen on probation for seven years and fined him $1,000. Chen appealed, and Dallas’ 5th Court of Appeals affirmed his conviction in February 2000. Justice Charles Campbell wrote the opinion in which he was joined by Chief Justice Linda Thomas and Justice Mark Wittington. Chen’s lawyer, Richard Anderson, says he based his argument on legal impossibility because the child didn’t exist. Noting that the person who corresponded with Chen on the Internet was older than 18, Anderson says that attempted sexual performance of an adult is not a crime. Anderson, of counsel at Burleson, Pate & Gibson in Dallas, says Chen could have been charged with criminal solicitation without running afoul of legal impossibility. However, Holland said in the opinion that the case presents a factual impossibility scenario. The offense could not be completed due to the fact that Julie Cirello did not exist, a fact unknown by Chen, the opinion said. STANDARD OF BELIEF In another April 11 opinion, a sharply divided Court of Criminal Appeals ruled that the state must have more than the occurrence of an accident and an arrest for driving while intoxicated to require that a driver give a blood sample. The 5-4 ruling in Badgett v. State of Texas reverses a decision by Houston’s 14th Court of Appeals that upheld Thomas Wyman Badgett’s conviction for misdemeanor DWI. Harris County Court at Law No. 1 sentenced Badgett to six months in jail, placed him on probation for a year and fined him $750 after he was convicted. Badgett, who admitted to drinking four or five beers, pleaded no contest to the DWI charge and appealed the trial court’s denial of his motion to suppress the sample he was required to give, which showed his blood alcohol level was 0.13, court records indicate. The majority opinion, written by Judge Cheryl Johnson, said Badgett was standing by his vehicle when Baytown, Texas, police officer James Kerr arrived at the scene of a two-car accident involving life-threatening injuries in May 1997. The officer working the accident told Kerr that Badgett was the driver of one of the vehicles and that he might be intoxicated, the opinion said. Kerr arrested Badgett after having him perform field sobriety tests and left the scene before the accident reconstruction team determined that Badgett did not cause the accident, Johnson wrote. The opinion said Badgett refused to give a blood sample but that one was drawn at a local hospital despite his objection. For the involuntary taking of a blood sample to be authorized, the law requires that there be a life-threatening accident, that the defendant be arrested for DWI and that the arresting officer reasonably believe that the accident occurred as the result of that offense, Johnson said in the opinion. The 14th Court held that “because intoxication is widely known to impair a driver’s ability to drive safely, the fact that an accident has occurred in which a driver was intoxicated supports a reasonable inference that the intoxicated condition of the driver contributed to the accident.” Justice Richard Edelman wrote the opinion, and Justice Don Wittig and former Justice Maurice Amidei joined him. In the CCA majority opinion, Johnson said the 14th Court’s rationale “effectively nullifies” the requirement that the arresting officer reasonably believe that the accident occurred as a result of the offense, as that belief always would be established by the other two factors. Judges Holland, Lawrence Meyers, Tom Price and Charles Holcomb joined Johnson in the opinion. Judge Mike Keasler, in a dissenting opinion, said the majority’s analysis contradicts the plain language of the law and leads to absurd results. “Under the majority’s rationale, in cases where no causation evidence exists other than evidence of intoxication, officers may not form a reasonable belief that the intoxicated driver caused the accident. This is silly. It ignores common knowledge and defies common sense,” Keasler wrote. Presiding Judge Sharon Keller and Judges Paul Womack and Barbara Hervey joined in the dissent. Dan McCrory, Harris County, Texas assistant district attorney, says the decision will “make it tougher” for officers who arrive at the scene of an accident and have only a scant amount of evidence available to determine if a blood test should be done. In Badgett’s case, McCrory says, the arresting officer had to make that decision when all he knew was that a two-car accident had occurred and one of the drivers was intoxicated. He says the officer conducted sobriety tests to see if Badgett was intoxicated but couldn’t wait for the accident reconstruction team to do its work because blood specimens must be taken within a short period of time to determine whether an individual was intoxicated at the time of the collision. Paul says he doesn’t think the ruling will make a difference in most cases. He says the facts in Badgett are unusual in that the officer who required the blood sample didn’t know anything about the accident. “I think the majority opinion leaves it open to a common sense interpretation,” Paul says. Badgett’s lawyer, Herbie Ritchie, a partner in Ritchie & Glass in Houston, says the court was right on. Ritchie says a police officer should base his conclusion that a driver caused an accident on facts before requiring that the driver give a blood sample. Not all blood tests are done at a Houston medical center, and the sample may be taken at a facility where not all precautions are taken to protect the individual, he says. “This is a highly invasive procedure when somebody puts a needle to you to take your blood,” he says. “An officer needs to have a reasonable basis for doing that.” McCrory says he is reviewing the opinion to determine whether to file a motion for rehearing.

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