Appeal from Comanche County
For Appellant: Jim Parker, Attorney at Law, P.O. Box 762, Comanche, TX 76442.
For Appellee: Andy McMullen, District Attorney, P.O. Box 706, Hamilton, TX 76531.
Austin McCloud, Chief Justice; Bob Dickenson, Justice; W. G. Arnot, III, Justice; All Concurring
The jury convicted appellant of attempted sexual performance by a child, and the trial court assessed punishment at confinement for five years. The imposition of the sentence was suspended, and appellant was placed on probation for five years. We affirm.
There is no challenge to the sufficiency of the evidence. In his sole point of error, appellant contends that the trial court erred in denying his motion to quash the indictment because the conduct complained of, even if it occurred exactly as alleged by the State, does not constitute a felony offense against the laws of the State of Texas. We disagree.
The indictment alleged that on or about October 7, 1990, appellant:
Did then and there intentionally, with the specific intent to commit the offense of sexual performance by a child upon [B.A.P.], do an act, to-wit: verbally entice [B.A.P.], a child who was then and there younger than seventeen (17) years of age and who was not the spouse of Defendant, to engage in deviate sexual intercourse, to-wit: oral intercourse, which amounted to more than mere preparation, that tended but failed to effect the commission of the offense intended.
The offense of sexual performance by a child is defined in TEX. PENAL CODE ANN. § 43.25(b) (Vernon 1989) as:
A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 17 years of age to engage in sexual conduct or a sexual performance. (Emphasis added)
TEX. PENAL CODE ANN. § 43.25(a) (Vernon 1989) states in part:
(1) "Sexual performance" means any performance or part thereof that includes sexual conduct by a child ...