RYAN MICHAEL GURWELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued August 21, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01316-CR
............................
RYAN MICHAEL GURWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-82479-06
.............................................................
OPINION
Before Chief Justice Thomas and Justices FitzGerald and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant was charged with online solicitation of a minor with intent to engage in sexual contact. He pleaded not guilty before a jury. The jury found appellant guilty and assessed his punishment at ten years' imprisonment. In his sole issue, appellant contends the trial court erred by denying his requested jury instruction on the defense of renunciation. We affirm the trial court's judgment as modified.
Background
 
        The events giving rise to this charge began in August 2006 when appellant contacted a girl named “Emma” through her MySpace and Yahoo! Accounts. Appellant concedes he believed Emma was a fourteen-year-old girl. Emma was actually a persona created by Collin County Sheriff's deputy Scotty Morrison. Appellant and Emma chatted via an instant messenger system. Appellant used the screen name “rygee253” and Emma used the screen name “tennisgirl0893.” Over time, the chatting escalated into explicit sexual conversation. The online chat log was admitted into evidence at trial as State's Exhibit no. 1. Eventually “rygee253” and “tennisgirl0893” agreed to meet at a nearby park. When appellant went to the park, he was arrested Morrison. Upon being arrested, appellant said he was sorry and that he never intended to have sex with Emma.
 
Applicable Law
 
        We review a claim of jury charge error under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). The first prong of that test requires the appellate court to determine if error exists. Id. If the court determines that error exists, the court then evaluates the harm caused by the error. Id. The degree of harm that must be shown depends on whether an objection was made to the court's charge. If there was no objection in the trial court and error is claimed for the first time on appeal, egregious harm must be shown to obtain relief. See id.; Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). When error is preserved in the trial court by timely objection, the record must show only some harm. Almanza, 686 S.W.2d at 171; Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Harm is reviewed in light of the entire jury charge, the state of the evidence, argument of counsel, and any other relevant information shown by the record. Almanza, 686 S.W.2d at 171; Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
        Upon timely request, a defendant has the right to an instruction on any defensive theory raised by the evidence, regardless of what the trial court may think of the credibility of the evidence. Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).
 
Analysis
 
        Appellant asserts the trial court erred by denying his requested instruction on the renunciation defense. Appellant specifically points to the following portion of the chat log as evidence he renounced his intent that the minor engage in sex:
 
rygee253 (8/31/2006 8:38:39 AM): lets meet and see where we go from there
tennisgirl0893 (8/31/2006 8:39:06 AM): that's fine
tennisgirl0893 (8/31/2006 8:39:06 AM): u don't wanna go back to ur hse
rygee253 (8/31/2006 8:39:13AM): i mean lets just start out by meeting and see where it goes
 
        Appellant argues the above evidence shows he renounced his intent that the minor engage in sex. He contends further that, pursuant to section 15.04 of the penal code, he was entitled to an instruction on the defense of renunciation. See Tex. Penal Code Ann. § 15.04 (Vernon 2003). Appellant further argues the trial court's error in denying the instruction harmed appellant because he was convicted of the third-degree felony of soliciting a minor to meet with the intent that the minor engage in sexual activity rather than the state jail felony for communicating in a sexually explicit manner with a minor. See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050, amended by Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167-68 and Act of May 27, 2007, 80th Leg., R.S., ch. 1291, § 7, 2007 Tex. Gen. Laws 4350, 4350 (current version at Tex. Penal Code Ann. § 33.021 (b), (c) (Vernon Supp. 2008)).   See Footnote 2 
        The State responds that appellant was not entitled to a jury instruction on renunciation because the defense is only available for offenses under Chapter 15 of the Penal Code. Appellant was charged with online solicitation of a minor under Chapter 33, which provides its own list of defenses. The State further argues that even if the renunciation defense applies, appellant did not meet the requisites of renunciation because any claimed renunciation was not complete and voluntary and appellant did not take any affirmative acts to renounce the offense.
        In Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000), the court of criminal appeals addressed the issue of whether the renunciation defense under section 15.04 applies to offenses outside that chapter. There, as here, the State argued the affirmative defense instruction on renunciation applied only to an offense prosecuted under chapter 15. Id. at 122. In overruling appellant's complaint regarding the trial court's failure to give a renunciation instruction, the court stated, “We agree with the State's argument . . . .” Id. The court then went on to explain such an instruction would have been inappropriate because it was not raised by the evidence. Id.
        Although appellant's case does not involve capital murder, the same rationale applies. Title 4 of the penal code, in which chapter 15 is located, concerns inchoate offenses. Chapter 15 specifically concerns preparatory offenses, including criminal conspiracy, criminal solicitation, and criminal solicitation of a minor.
        In Wesbrook, just as here, the appellant was not charged with a preparatory offense under chapter 15; he was charged with a completed offense under chapter 33 of the penal code. Thus, the renunciation defense in section 15.04 did not apply.         Section 33.021 expressly states it is not a defense to an offense under that section that a meeting did not occur, the defendant did not intend for the meeting to occur, or the actor was engaged in a fantasy at the time of commission of the offense. Tex. Penal Code Ann. § 33.021(d). Additionally, renunciation is not one of the defenses listed in section 33.021. Id. § 33.021(e) (defenses include actor being married to minor or not more than three years older than minor and minor consented to communications).
        Moreover, even if the renunciation defense did apply, just as in Wesbrook, it was not raised by the evidence. The portion of the chat log upon which appellant relies does not raise renunciation because it was not complete and voluntary, nor did appellant take any affirmative acts to renounce the offense. See Wesbrook, 29 S.W.3d at 122; Thomas v. State, 708 S.W.2d 861, 863 (Tex. Crim. App. 1986). Although it is true appellant appears in the chat log to be cautious and concerned about being caught, there is nothing in the chat log reflecting appellant's voluntary “repentance or change of heart.” See Chennault v. State, 667 S.W.2d 299, 304 (Tex. App.-Dallas 1984, pet. ref'd).
        Furthermore, other portions of the log show appellant's intent was to have sexual intercourse with tennisgirl0893:
 
tennisgirl0893 (8/30/2006 6:33:22 PM): parents are gone
 
 
 
tennisgirl0893 (8/30/2006 6:33:30 PM): kara and i may go get something with her boyfriend
 
 
 
tennisgirl0893 (8?30/2006 6:33:39 PM): she spose to be callin me
 
 
 
rygee253 (8/30/2006 6:33:51 PM): are you hanging out with your friend?
 
 
 
rygee253 (8/30/2006 6:33:55 PM): or waiting to?
 
 
 
tennisgirl 0893 (8/30/2006 6:34:01PM): when she calls
 
 
 
tennisgirl0893 (8/30/2006 6:34:06 PM): im going over there
 
 
 
rygee253 (8/30/2006 6:34:10PM): ahh
rygee253 (8/30/2006 6:34:27 PM): this is a prime time to lose your virginity then.
 
Thus, the offense was complete well before appellant claims he renounced the offense.
        Moreover, the court's charge gave the jury the option of finding appellant guilty of the lesser-included offense of online solicitation of a minor without the intent to engage in sexual contact, sexual intercourse, or deviate sexual intercourse with another. The jury rejected that option, finding instead, the defendant guilty of online solicitation of a minor as charged in the indictment.
        Having reviewed the record under the appropriate standard, we conclude the trial court did not err by denying appellant's requested jury instruction on the renunciation defense. We resolve appellant's sole issue against him.
        We note the trial court's judgment states appellant pleaded guilty to the offense. The record, however, shows appellant was tried on his not guilty plea. Therefore, the judgment is incorrect. We have the authority to modify the trial court's judgment when we have the necessary data and information before us to do so. See Tex. R. App. P. 43.2(b), Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the section of the trial court's judgment entitled “Plea to Offense” to state “Not Guilty.”
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
071316F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Among other amendments, effective September 1, 2007, the penalties for offenses under section 33.021were increased. Section 33.021(f) was amended to make an offense under section 33.021(b) a third-degree felony unless the child was younger than fourteen and an offense under section 33.021(c) a second-degree felony. Because appellant's offense occurred before September 1, 2007, we apply the version of section 33.021(f) in effect at that time. See Act of May 27, 2007, 80th Leg., R.S., ch. 1291, § 11, 2007 Tex. Gen. Laws 4350, 4350.