Chen v. State - 42 S.W.3d 926 (Tex. Crim. App. 2001)

Rule:

The offense of attempted sexual performance by a child is committed if: (1) the defendant; (2) with specific intent to commit sexual performance by a child; (3) does an act amounting to more than mere preparation; (4) that tends but fails to effect the commission of sexual performance by a child.

Facts:

Appellant Bailey Lishian Chen made plans, via the internet, to meet a 13-year-old female, and have sex with her. Unbeknownst to appellant, he was talking to an undercover officer posing as the 13-year-old female. Appellant was convicted of attempted sexual performance by a child. On appeal, appellant asserted that it was legally impossible to commit the underlying offense since the 13-year-old female did not exist. 

Issue:

Could the appellant be held guilty of the crime of attempted sexual performance by a child, notwithstanding the inexistence of the child? 

Answer:

Yes.

Conclusion:

The court affirmed the appellant’s conviction, holding that the 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.