Chen v. State
In Chen v. State, 42 S.W.3d 926 (Tex. Crim. App. 2001), a 47-year-old male undercover police officer posed online as "Julie Cirello," a 13-year-old girl. Id. at 927.
The defendant solicited "Julie" for sexual activity and arranged to meet her at an agreed-upon location. Id. at 927-28. After the defendant arrived at the location, officers arrested him. Id. at 928.
In the defendant's van, the officers found a package of condoms and lubricant. Id. The defendant was charged and subsequently convicted of the offense of attempted sexual performance by a child. Id.
On appeal, Chen argued that because "Julie" did not exist, it was "legally impossible" for him to commit the offense. Id.
Therefore, according to Chen, the evidence in the record was insufficient as a matter of law to support the verdict. Id.
The court of criminal appeals disagreed:
"We initially note that if Julie Cirello had been an actual thirteen year old, then what appellant intended to accomplish (sexual performance by a child) constituted an actual crime. Appellant's goal was to commit the offense of sexual performance by a child. Because that goal is a crime by law, the doctrine of legal impossibility is not at issue in this case. Rather, this case presents a factual impossibility scenario. Due to a factual condition unknown to appellant (that Julie Cirello did not actually exist), the offense of sexual performance by a child could not be completed. It is true that, as appellant claims, the actual offense of sexual performance by a child would have been impossible for appellant to complete; the complainant, Julie Cirello, did not physically exist. But completion of the crime was apparently possible to appellant. He had specific intent to commit the offense of sexual performance by a child, and he committed an act amounting to more than mere preparation that tended but failed to effect the commission of the offense. The State presented evidence for each of the necessary elements of attempted sexual performance by a child." Id. at 930.