IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1052-24
SHANE BYRON TRACY, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
HILL COUNTY
PARKER, J., filed a concurring opinion.
CONCURRING OPINION
The evidence at trial showed that, after plying his seventeen-year-old
daughter with wine and marijuana, and telling her how romantic he felt about her,
he kissed her and rubbed her body, including her breast, and eventually placed one
of his fingers inside her sexual organ and touched her clitoris. The victim did not
respond to his advances and, to some extent, actively resisted. Even though this
evidence was insufficient to show that Appellant succeeded in inducing the victim
TRACY CONCURRENCE — 2
to “engage” in sexual conduct, I agree with the Court that it was sufficient to show
that Appellant attempted to induce the victim to engage in sexual conduct. I write
separately to explain how I think a reformation to attempt works in this case under
the language of the sexual-performance statute.
I. BACKGROUND
In September 2006, Appellant rubbed the vagina of his four-year-old
daughter J.R. He was convicted of indecency with a child for that incident and
went to prison. Later, Appellant was released, and, around 2016 or 2017, his
fourteen-year-old daughter R.S. (the victim in this case) met him for the first time.1
The victim later learned that Appellant was her biological father. Appellant and his
mother convinced her that he did not actually assault J.R. and had been falsely
imprisoned. Interested in getting to know her father, the victim went to see him in
May 2020, at age seventeen.
Because the victim was interested in camping, but the two of them did not
actually want to drive somewhere, they set up a tent in Appellant’s backyard. The
victim worked on some dual-credit classes on her laptop, while Appellant spent
time on his cell phone. Off and on, they talked, drank some wine, and smoked
1
J.R. and R.S. had different mothers and were only a few months apart in age.
TRACY CONCURRENCE — 3
marijuana. She fell asleep with Appellant holding her, but he had left the tent when
she woke up in the morning. The victim had worn shorts and a large shirt during
this outing, and nothing inappropriate occurred.
Later that month, the victim had a serious argument with her boyfriend and
concluded that he was about to break up with her. Wanting to forget the incident
for at least a while, and knowing that Appellant wanted to see her again and had
marijuana, she decided to visit him again. Appellant picked her up, and they
picked up some chicken at a fast-food establishment and went to Appellant’s home
to eat. They ate in the kitchen and then moved to his bedroom. Sitting at the foot
of Appellant’s bed, the victim played on a Ninetendo 64 game console that she had
brought while Appellant spent time on his cell phone. Soon, Appellant brought out
marijuana, and they began smoking marijuana and drinking wine. The victim
smoked and drank more than she had the previous time. At some point, they drove
to a convenience store, and Appellant picked up more alcohol.
When they returned to Appellant’s home, it had begun to slightly rain—“to
sprinkle a little bit.” Appellant tried to dance with her and told her that it was “so
romantic dancing out in the rain.” Going inside and returning to Appellant’s
bedroom, the victim drank a shot of the alcohol Appellant had bought, and he
TRACY CONCURRENCE — 4
drank the rest. The victim became drowsy and began lying on the bed.
At trial, the victim described what happened next:
And I remember laying on my back, and he kept trying to kiss my
neck. I could feel his beard on my neck. And he grabbed my face and
he turned it towards him and he tried making out with me. He tried
pushing his tongue down -- he tried pushing his tongue in my mouth
and I kept my mouth closed.
***
And after he tried making out with me, he put his hand on my breasts,
and he felt underneath my bra, and he kept grabbing me, saying how
attracted he was to me and how attracted he’s been to me my entire
life as long as he’s known me, and then he put his hands down my
pants. He felt my thong. He was telling me that he likes the way my
butt feels. He asked me if I had worn a black thong on purpose just so
I could see him. And the entire time, he kept trying to kiss my neck,
talking about how attracted he was to me, and that he knew it was
wrong, but he couldn’t help himself.
***
I froze up. I didn’t know what to do.
The prosecutor asked the victim what Appellant asked her about the “black
lace panties” she had on. The victim responded, “He asked me if I had worn it for
him.” When asked what her response was, the victim said, “I didn’t say anything
the entire time.” But then she backtracked and said, “Before he had stuck his
hands down my pants, I told him that I was on my period, because I thought it
would get him to stop.” The victim further testified that she wasn’t on her period
and her statement did not cause him to stop. The prosecutor asked the victim if
TRACY CONCURRENCE — 5
Appellant touched her breasts with his hands and if it was “skin on skin.” She
responded, “Yes.”
The prosecutor then questioned the victim about Appellant penetrating her
vaginal area:
Q. What of your vaginal area, what part of your vaginal area did he
touch?
A. The clitoris.
Q. Actually made contact with it?
A. Yes, sir.
Q. Penetrated the labial folds to get to it?
A. Yes.
Afterwards Appellant “zipped up” her pants, “buttoned” the button,
grabbed her by the jeans, and threw her legs over. He started “panicking,” saying:
Oh, I shouldn’t have done this.
What was I thinking?
Oh, shit!
The victim covered her face with her hands and began to shake. Placing his
hands on her wrists, Appellant asked her why she was doing that and tried to pull
her hands away. The victim continued shaking and kept her hands on her face
TRACY CONCURRENCE — 6
until Appellant left the room. Afterwards, being in shock, she took a shower for an
hour and a half.
For his conduct against the victim, Appellant was indicted, in two counts,
for the offenses of (1) nonconsensual sexual assault and (2) sexual performance of a
child. As the Court explains, the State ultimately abandoned the sexual-assault
count. In the sexual-performance count, the indictment alleged in relevant part:
Defendant did then and there intentionally or knowingly induce a
child who was then and there younger than 18 years of age namely [the
victim], to engage in sexual conduct, namely the penetration of the
sexual organ of [the victim] and/or the touching of the breast of [the
victim], and the defendant knew the character and content of the
sexual conduct.2
The guilt stage jury charge appeared to include just about every statutory
provision that had anything to do with the statutory offense of sexual performance
of a child, whether or not the provision was implicated by the indictment or the
evidence. Notably, this comprehensive recitation of provisions included the
complete statutory definition of the offense of sexual performance of a child, the
complete statutory definition of the term “sexual conduct” (including “sexual
contact,” “actual or simulated sexual intercourse,” and “masturbation”), and the
definition of “sexual contact.”
2
Emphasis added and bracketed material substituted for original.
TRACY CONCURRENCE — 7
II. ANALYSIS
A. Sufficiency Standards
Under Malik v. State, we look to “the elements of the [charged] offense as
defined by the hypothetically correct jury charge for the case.”3 A hypothetically
correct jury charge “accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.”4
As part of determining the accurate law, we must sometimes construe the
statute under which the defendant was prosecuted.5 Any determination of the
meaning of the statute is reviewed de novo.6 Courts must interpret a statute in
accordance with the plain meaning of its text, unless the text is ambiguous or the
plain meaning leads to absurd results that the Legislature could not have possibly
3
953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (bracketed material added for clarity); see also Gutierrez v. State, 710 S.W.3d 804, 809 (Tex. Crim. App. 2025).
4
Gutierrez, supra; Malik, supra.
5
Milton v. State, 721 S.W.3d 300, 303 (Tex. Crim. App. 2025); Swenson v. State, 707 S.W.3d 297, 301 (Tex. Crim. App. 2024).
6
Swenson, supra.
TRACY CONCURRENCE — 8
intended.7 Plain meaning is determined by reading the statute in context,
reasonably giving effect to each word, phrase, clause, and sentence, and construing
the text according to applicable rules of grammar and common usage.8 After
following these rules, words must be accorded “any meaning which is acceptable in
common parlance.”9 Words that have statutory definitions should be construed
accordingly, and a court can consult standard dictionaries to ascertain the meaning
of undefined terms.10 If a statute is determined to be ambiguous, a court may
consult extratextual factors, the most important of which is “statutory
history”—how the wording of a statute has changed over time.11
The “authorized by the indictment” language in Malik indicates that
sufficiency of the evidence has to be measured by the statutory elements of the
offense as modified by the charging instrument.12 When a charging instrument
7
Milton, 721 S.W.3d at 303; Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
8
Milton, supra; Ex parte Reeder, 691 S.W.3d 628, 632 (Tex. Crim. App. 2024).
9
Edwards v. State, 666 S.W.3d 571, 575 (Tex. Crim. App. 2023) (quoting from Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012)).
10
Milton, 721 S.W.3d at 303; Reeder, 691 S.W.3d at 632 .
11
In re Green, 713 S.W.3d 843, 854-55 (Tex. Crim. App. 2025).
12
Delarosa v. State, 677 S.W.3d 668, 673-74 (Tex. Crim. App. 2023); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).
TRACY CONCURRENCE — 9
alleges only one of several statutory methods of committing an offense, the State is
limited to the method alleged.13 And while the State does not ordinarily have to
plead statutory definitions in a charging instrument, if it does so, and in doing so
narrows the statutory offense, the State is bound by what it has pled.14 On the
other hand, for non-statutory allegations in a charging instrument, the proof at trial
must not materially vary from the allegations pled.15 A variance is material if it
affects an “allowable unit of prosecution” that results in proof of an offense
different than the one that is pled.16
Once we have adequately defined the charged offense, we must determine
whether the evidence is sufficient to support it. In making that determination, a
court must review the evidence in the light most favorable to the prosecution (or
the verdict) and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.17 This standard
13
Delarosa, supra at 674; Curry, supra at 404-05.
14
Geick v. State, 349 S.W.3d 542, 547-48 (Tex. Crim. App. 2011).
15
Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012); Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001).
16
Johnson, supra at 295-98.
17
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bittick v. State, 707 S.W.3d 366, 368 (Tex. Crim. App. 2024).
TRACY CONCURRENCE — 10
“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.”18 In conducting such a review, a court must consider the
cumulative force of all the evidence.19 And a court must consider reasonable
inferences from the evidence but must not engage in mere speculation.20 In
deciding what inferences are reasonable, courts should consider that jurors may use
“common sense, common knowledge, personal experience, and observations from
life when drawing those inferences.”21 But a court improperly engages in
speculation if it engages in “mere theorizing or guessing about the possible
meaning of facts and evidence presented.”22
B. The Sexual Performance Offense
The sexual-performance statute provides:
A person commits an offense if, knowing the character and content
thereof, he employs, authorizes, or induces a child younger than 18
18
Jackson, supra; see also Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024).
19
Baltimore, supra.
20
Id. at 342; Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007).
21
Baltimore, supra.
22
Kitchens v. State, 721 S.W.3d 467, 487 (Tex. Crim. App. 2025); Hooper, 214 S.W.3d at 16.
TRACY CONCURRENCE — 11
years of age to engage in sexual conduct or a sexual performance.23
Although the jury charge tracked this statutory language in its entirety, the
indictment did not. The indictment did not contain the terms “employs,”
“authorizes,” or “sexual performance”—nor did it contain any language that
could be fairly read to encompass those terms.24 Consequently, the indictment did
not authorize conviction under theories of the offense encompassed by those terms
and those terms are irrelevant to the questions before us. The State was limited by
this indictment to Appellant’s alleged conduct of “inducing” and to the child’s
alleged conduct of “engaging in sexual conduct.”
The sexual-performance statute defines “sexual conduct” as:
sexual contact, actual or simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or
lewd exhibition of the genitals, the anus, or any portion of the female
breast below the top of the areola.25
The indictment contained allegations purporting to describe the “sexual
conduct” that Appellant was accused of inducing the child to engage in: “the
penetration of the sexual organ of [the victim] and/or the touching of the breast of
23
TEX. PENAL CODE § 43.25(b).
24
Cf. Crawford v. State, 710 S.W.3d 774, (Tex. Crim. App. 2025) (“deputy sheriff” allegation found to allege “peace officer” element).
25
TEX. PENAL CODE § 43.25(a)(2) (emphasis added).
TRACY CONCURRENCE — 12
[the victim].” Neither of these allegations expressly specify any of the statutorily
defined methods of committing “sexual conduct.” Consequently, they are nonstatutory means rather than definitions and do not bind the State to any particular
statutory method of committing sexual conduct.26
However, these non-statutory acts define unit-of-prosecution facts that
would require the proof at trial not to materially vary from the allegations.27
Although this Court has not specifically addressed the unit of prosecution for
sexual performance of a child, for other sexually assaultive offenses, it has said that
“different body parts mean different crimes.”28 Thus, when looking at the
26
Even considering that some of the statutory methods of committing sexual conduct have definitions of their own, the acts outlined in the indictment do not match any of the definitions. Perhaps the closest is the breast allegation and the definition of “sexual contact.” The sexual-performance statute defines “sexual contact” as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.” See id. § 43.01(3); see also id. § 43.25(a)(7) (“sexual contact” has the meaning assigned by § 43.01). Touching the breast would match part of the definition of sexual contact but would still omit the intent element. And the “penetration of the sexual organ” allegation, because it does not say how the sexual organ was penetrated, could fall within a number of different methods of committing “sexual conduct.”
27
See Huffman v. State, 267 S.W.3d 902, 906-07 (Tex. Crim. App. 2008) (For sex offenses, “we have uniformly required that different types of conduct specified in the various statutes be treated as separate offenses.”); see also Loving v. State, 401 S.W.3d 642, 647-49 (Tex. Crim. App. 2013) (unit of prosecution for indecency-with-a-child offense is each prohibited sexual act); Vick v. State, 991 S.W.2d 830, 832-33 (Tex. Crim. App. 1999) (different types of sex acts in sexual-assault statute were separate offenses).
28
Hernandez v. State, 631 S.W.3d 120, 124 (Tex. Crim. App. 2021). We have said generally that sex offenses are “nature of conduct crimes,” Huffman, supra at 906, but the sexual-performance statute’s wording might create a “result” offense. See TEX. PENAL CODE
TRACY CONCURRENCE — 13
statutory definitions of “sexual conduct,” we should consider only those that
comport with the breast-touching and sexual-organ-penetration allegations in the
indictment. Most of the statutory definitions very obviously do not conform to
those unit-of-prosecution allegations. The definitions that require more
explanation are “sexual contact,” “sexual intercourse,” and “masturbation.”
Although we can determine that the child failed to engage in sexual conduct
without exploring these definitions—because she essentially did nothing—these
definitions become relevant when determining what exactly Appellant can be
convicted of attempting to get the child to do.
C. Attempt
1. General Principles
When evidence is found to be insufficient to support the charged offense, a
court must reform the conviction to a lesser-included offense if three conditions
§ 6.03 (referring to the “result” of an actor’s conduct). The offense nevertheless seems centered on the conduct in which the child engages. The “sexual performance” act a child can engage in might suggest a transaction in which multiple discrete acts can occur, but the definitions of “sexual conduct” mirror the more traditional nature-of-conduct focus of other sex offenses. Even if the term “sexual conduct” were deemed to be transaction-focused, the specification of particular conduct would still serve to narrow which definitions of “sexual conduct” are being prosecuted. See Williams v. State, 685 S.W.3d 110, 114-15 (Tex. Crim. App. 2024) (referring to the rule that “when an act or omission is statutorily defined and that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish”) (internal quotation marks omitted).
TRACY CONCURRENCE — 14
are met: (1) the offense is included within the charged offense (i.e., it is a lesserincluded offense), (2) the trier of fact necessarily found the lesser-included offense
in finding the defendant guilty of the charged offense, and (3) the evidence is
sufficient to support the lesser-included offense.29
By statute, an “attempt” to commit the charged offense qualifies as a lesserincluded offense.30 A person commits an “attempt” if “with specific intent to
commit an offense, he does an act amounting to more than mere preparation that
tends but fails to effect the commission of the offense intended.”31 The “specific
intent” element of attempt can pose a challenge in determining whether the second
element for reformation—that the a trier of fact “necessarily found” the defendant
guilty of the lesser-included offense—has been met. “Specific intent” to commit
an offense sometimes entails a higher culpable mental state than the object
offense.32 Nevertheless, we have suggested that, even if the elements of attempt
and the object crime do not neatly line up, we might be able to find that the trier of
29
Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). Thornton framed the inquiry as two questions, but because it required the offense to be “lesser-included,” it necessarily held all three conditions to be required. See id.
30
TEX. CODE CRIM. PROC. art. 37.09(4).
31
TEX. PENAL CODE § 15.01(a).
32
See Nava v. State, 415 S.W.3d 289, 299 n.22 (Tex. Crim. App. 2013) (discussing and quoting from Flanagan v. State, 675 S.W.2d 734, 740-41 (Tex. Crim. App. 1982)).
TRACY CONCURRENCE — 15
fact made “an implied or logically necessary finding” as to the attempt offense.33
In determining whether reformation to an attempt offense is viable, we need
to consider the three definitions of “sexual conduct” that remain at issue in this
discussion: “sexual contact,” “sexual intercourse,” and “masturbation.” For
reformation to be possible, all three required conditions must be met for at least
one of the definitions.
2. Sexual Contact
The sexual-performance statute uses the Chapter 43 definition of “sexual
contact”: “any touching of the anus, breast, or any part of the genitals of another
person with intent to arouse or gratify the sexual desire of any person.”34 To see
how that definition interacts with the relevant language of the sexual-performance
statute, we plug it in verbatim in place of “sexual conduct”:
A person commits an offense if, knowing the character and content
thereof, he . . . induces a child younger than 18 years of age to engage
in any touching of the anus, breast, or any part of the genitals of
another person with intent to arouse or gratify the sexual desire of any
33
Thornton, 425 S.W.3d at 301 (“With respect to the first three of these elements, we note that the jury explicitly found these to have been proven when it found the appellant guilty of actual concealment, and so we need not inquire as to whether the jury made an implied or logically-necessary finding as to either of them.”).
34
TEX. PENAL CODE § 43.01(3), as incorporated by § 43.25(a)(7).
TRACY CONCURRENCE — 16
person.35
As the above passage shows, a plain reading of the sexual-performance statute
when it incorporates the sexual-contact definition is that a child must engage in the
touching of someone else’s anus, breast, or genitals. In other words, the sexualcontact definition is “unilateral”: A person engages in sexual contact by touching
someone else’s intimate parts but is not engaging in sexual contact if another
person touches his or her intimate parts.
By contrast, if the definition of “deviate sexual intercourse” were plugged
into the sexual-performance statute, the offense would read as follows:
A person commits an offense if, knowing the character and content
thereof, he . . . induces a child younger than 18 years of age to engage
in any contact between the genitals of one person and the mouth or
anus of another person.36
That wording shows the “deviate sexual intercourse” definition to be “bilateral”:
the conduct of both participants in the transaction satisfies the statute as completed
by the definition.37 The “sexual contact” definition could have been made bilateral
35
Emphasis added.
36
See TEX. PENAL CODE § 43.01(1-a) (defining “deviate sexual intercourse” as “any contact between the genitals of one person and the mouth or anus of another person”).
37
A similar result occurs under the § 43.01 definition of “sexual intercourse.” See id. § 43.01(5).
TRACY CONCURRENCE — 17
if the words “by one person” had been inserted after “touching”—to read
“induces a child . . . to engage in any touching by one person of the anus, breast, or
any part of the genitals of another person”—but the Legislature did not choose to
phrase it that way.
Because the phrase “sexual contact” connotes both sides of a sexual event in
common parlance and because of the inherent desire to protect children,38 the
temptation to find that this construction leads to an “absurd result” is unusually
high. One response to that temptation is that we must give effect to the statutory
definition even when it varies from common parlance. But caselaw involving
similar statutes and the historical development of the indecency-with-a-child
statute further suggest that a “unilateral” construction of “sexual contact” is not
an anomalous result.
When the 1974 Penal Code was enacted, the indecency-with-a-child statute
contained no definition of “sexual contact” but relied upon a definition that
applied generally to offenses in Chapter 21 of the Penal Code.39 While that
definition differs slightly from the modern wording of its Chapter 43 counterpart, it
38
See Cockrell v. State, 721 S.W.3d 448, 458 (Tex. Crim. App. 2025); State v. Mata, 624 S.W.3d 824, 828 (Tex. Crim. App. 2021).
39
See Jacquez v. State, 579 S.W.2d 247, 249 (Tex. Crim. App. 1979) (quoting then TEX. PENAL CODE § 21.01(2)).
TRACY CONCURRENCE — 18
is similar in relevant respects:
“Sexual contact” means any touching of the anus or any part of the
genitals of another person or the breast of a female 10 years or older
with intent to arouse or gratify the sexual desire of any person.40
In Jacquez v. State, the defendant claimed that the definition was unilateral:
Appellant urges that the evidence is insufficient to sustain the
conviction because the State did not prove that appellant engaged in
“sexual contact” within the statutory meaning of that term.
Specifically, appellant argues that the evidence shows only that he
forced the complainants to touch his genitals, and that sexual contact
occurs only when the accused touches the victim’s genitals.41
This Court agreed with the defendant that the statute seemed to be couched in
unilateral terms:
We agree with appellant that the statutory definition of sexual contact
seems to contemplate that sexual contact occurs when the accused
touches the victim’s genitals, and not vice versa.42
However, this Court decided that the indecency offense itself required that the
defendant “engages in sexual contact with the child” and that this wording allowed
the evidence to be sufficient to support conviction when the defendant forced the
40
Id.
41
Id.
42
Id. (emphasis added).
TRACY CONCURRENCE — 19
child to touch the defendant’s genitals.43 Notably, the sexual-performance statute
before us—proscribing conduct that “induces a child . . . to engage in sexual
conduct”—does not contain the word “with” that was crucial to Jacquez’s
articulated workaround to avoid the unilateral wording of the sexual-contact
definition.44
In Herring v. State, the Court reaffirmed that the word “with” in the
indecency-with-a-child statute was crucial to the Court’s holding in Jacquez and
that the Jacquez Court otherwise made a valid observation that the “sexual
contact” definition seemed unilateral:
At the outset we state explicitly what was implied by the panel opinion
in Jacquez v. State: There is a distinction between conduct
constituting indecency with a child as proscribed by V.T.C.A. Penal
Code, § 21.11(a)(1) and conduct amounting to public lewdness that is
denounced by § 21.07(a)(3). The distinguishing feature of the former
is that an offender engages in sexual contact “with the child”—the
preposition connoting a sense of association of a reciprocal kind or by
way of participation in an action or transaction. Thus, we need not
further notice the Jacquez opinion beyond its tentative observation
that “the statutory definition of sexual contact seems to contemplate
that sexual contact occurs when the accused touches the victim’s
genitals, and not vice versa.”45
43
Id. (quoting then TEX. PENAL CODE 21.11(a)(1)) (emphasis in Jacquez).
44
See TEX. PENAL CODE § 43.25(b).
45
659 S.W.2d 391, 392 (Tex. Crim. App. 1983) (emphasis in original, citations omitted).
TRACY CONCURRENCE — 20
Herring involved a public-lewdness statute that applied if a person, in a public
place, “knowingly engages in . . . an act of sexual contact.”46 By that time, the
Chapter 21 “sexual contact” definition was identical to the Chapter 43 counterpart
definition at issue before us today.47 Although the “act” wording of the publiclewdness statute complicated the question, the Court essentially held that the
sexual-contact portion of the public-lewdness statute operated unilaterally: a
person violated the statute by touching someone else’s genitals but not by allowing
someone else to touch his genitals.48
In 2001, the Legislature added a “sexual contact” definition to the
indecency-with-a-child statute.49 That added definition is really two definitions,
with each running unilaterally in separate directions to encompass the child
touching someone else’s intimate parts and someone else touching the child’s
intimate parts:
In this section, “sexual contact” means the following acts, if
46
Id. (quoting then TEX. PENAL CODE § 21.07(a)(3)) (ellipsis in Herring).
47
See id. at 394 (McCormick, J., dissenting) (quoting then TEX. PENAL CODE § 21.01(2)).
48
See id. at 392 & n.1 (Court’s op.). I acknowledge, though, that the “bodily movement” aspect of an “act” suffused some of the reasoning in the opinion and could be a basis for distinguishing it. See id. at 392.
49
Compare TEX. PENAL CODE § 21.11, passim (West 2000), with TEX. PENAL CODE § 21.11(c) (West 2004) (see notes to West 2004 version showing statute last amended in 2001).
TRACY CONCURRENCE — 21
committed with the intent to arouse or gratify the sexual desire of any
person:
(1) any touching by a person, including touching through clothing, of
the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching
through clothing, with the anus, breast, or any part of the genitals of a
person.50
While one can perhaps think of other reasons for having both definitions in the
indecency-with-a-child statute, one reason would be to ensure that the statute
works bilaterally.
It is also worth noting that “sexual contact” first appeared in the sexualperformance statute’s definition of “sexual conduct” in 2003.51 This appearance
would be after the holdings in Jacquez and Herring and after the addition of the
two-part definition of “sexual contact” to the indecency-with-a-child statute. So
the Legislature had at least some notice of the idea that the “sexual contact”
definition could operate unilaterally.
And to further respond to any temptation to find an absurd result, one can
point out that the sexual-performance statute is contained, not in Chapter 21, for
50
TEX. PENAL CODE § 21.11(c) (West 2004).
51
Compare TEX. PENAL CODE § 43.25(a)(2) (West 2000), with TEX. PENAL CODE
§ 43.25(a)(2) (West 2004) (see notes to West 2004 version showing statute last amended in 2003, and amended before that in 1999).
TRACY CONCURRENCE — 22
sexual offenses, or in Chapter 22, for assaultive offenses, but in Chapter 43 for
“Public Indecency” offenses.52 And the statute is titled “Sexual Performance of a
Child,” not “Indecency with a Child” or “Sexual Assault.”53 We have recognized
that titles and section headings cannot expand or limit the meaning of a statute and
are only of use to shed light on the meaning of an ambiguous word or phrase.54
However, a title or section heading could at least help rebut a claim that the plain
meaning of statutory language leads to absurd results. While it might seem odd for
“sexual contact” to have a unilateral meaning in a sexual or assaultive offense, it
would seem less so for an offense that is about public indecency or morals, where
the focus may be on preventing the corruption of a child, as opposed to protecting
the child from an assault or molestation.
Turning to the facts of the present case, it becomes clear that “sexual
contact,” as properly construed, does not conform to the indictment allegations.
The indictment alleged that the victim’s breast was touched and that her sexual
52
See TEX. PENAL CODE, Chs. 21, 22, 43.
53
Compare id. § 43.25 (title), with id. §§ 21.11 (title), 22.011 (title).
54
State v. Kahookele, 640 S.W.3d 211, 225 (Tex. Crim. App. 2021); see also TEX. GOV’T CODE §§ 311.023(7) (“In construing a statute . . . a court may consider among other matters the . . . title (caption), preamble, and emergency provision.”); 311.024 (“The heading of a title, subtitle, chapter, subchapter, or section does not limit or expand the meaning of a statute.”) .
TRACY CONCURRENCE — 23
organ was penetrated; it did not encompass the entirely separate offense(s) of
causing the victim to touch someone else’s breast or sexual organ. An attempt to
have the victim touch someone else’s intimate body parts is not a lesser-included
offense of the touching (or penetration) of the victim’s intimate body parts.
Consequently, a theory of attempt based on sexual contact fails to satisfy the first
prong of the reformation test set out earlier—that the offense is in fact a lesserincluded offense.
3. Sexual Intercourse
“Sexual intercourse” is not specifically defined in connection with the
sexual-performance statute,55 but there is a definition at the beginning of Chapter
43, that, though not technically applicable, appears to comport with the common
understanding of the term: “any penetration of the female sex organ by the male
sex organ.”56 This definition does not conform to the breast-touching allegation
but does conform to the sexual-organ-penetration allegation. So, an attempt to
induce the victim to engage in sexual intercourse would be a lesser-included
offense under Appellant’s indictment.
55
See TEX. PENAL CODE § 43.25, passim.
56
Id. § 43.01(5). The definitions in § 43.01 apply “[i]n this subchapter,” which is Subchapter A, id. § 43.01, and § 43.25 is contained in Subchapter B.
TRACY CONCURRENCE — 24
Although this case presents interesting questions regarding intent, crossing
the line between preparation and attempt, and the renunciation defense, those
questions can be resolved satisfactorily to establish that the evidence was sufficient
to support such an attempt offense. While Appellant never directly urged the
victim to have sexual intercourse with him, he engaged in numerous romantic and
sexual acts, all of which could be seen as foreplay or grooming that was
intentionally designed to induce the victim to eventually have full-blown sex with
him.57 Intent can be inferred from circumstantial evidence.58 And at the very least,
touching the victim’s clitoris seems to be a concrete act beyond mere preparation.
Crossing the line between preparation and attempt does not require the defendant
to engage in the “last proximate act” before committing the offense, nor does it
require the completion of the offense to be temporally imminent.59 And while
Appellant did terminate his touching of the victim before any act of sexual
intercourse, a rational trier of fact could infer that he did so only because the victim
did not respond positively to his advances. For a renunciation to be effective, it
57
See Morris v. State, 361 S.W.3d 649, 656-67 (Tex. Crim. App. 2011) (judicially noticing the phenomenon of “grooming”).
58
Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) (quoting Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004)).
59
Swenson, 707 S.W.3d at 302, 306-08.
TRACY CONCURRENCE — 25
must occur under “circumstances manifesting a voluntary and complete
renunciation of his criminal objective,”60 and a renunciation that results from a
victim’s adverse reaction is not voluntary.
The more difficult question is whether attempted sexual performance via
sexual intercourse meets the second prong of the reformation test as set out
earlier—that the trier of fact necessarily found the attempt offense in finding guilt
of the charged offense. One potential problem is that the breast-touching and
sexual-organ-penetration allegations were disjunctively alleged—allowing the trier
of fact to base its verdict solely on a breast-touching offense that was not an object
crime for a sexual-intercourse attempt. But a jury that found Appellant guilty under
the facts would not have done so solely on the basis of him touching the victim’s
breast. The victim was the source of the evidence of what Appellant did to her, she
testified to Appellant touching both her breast and her clitoris, and nothing about
that testimony (or her earlier statements) made the clitoris allegation any less
credible than the breast allegation.
But in finding that Appellant knowingly penetrated the victim’s sexual
organ, did the jury necessarily find that Appellant was intending to have sexual
60
TEX. PENAL CODE § 15.04(a) (emphasis added).
TRACY CONCURRENCE — 26
intercourse with her? As a purely logical exercise, a jury could believe that the
defendant was content to induce the child to participate in his molesting her with
his hands. But from a common-sense understanding of how the world works, no
jury who found Appellant guilty would think that. It would be rather obvious to
any reasonable person why Appellant went to great lengths to romance his 17-yearold daughter. Absent some indication that his intent was more limited,61 any jury
confronted with these facts would conclude that he was trying to have full-blown
sex with her. Consequently, reformation to attempted sexual-performance is viable
on the basis that Appellant attempted to induce the victim to have sexual
intercourse with him.62
4. Masturbation
The sexual-performance statute also proscribes masturbation. Plugging
61
Cf. Turley v. State, 691 S.W.3d 612, 615 (Tex. Crim. App. 2024) (“The two agreed upon a fee of $1,000 for two hours of time with S.E.B., with the understanding that ‘Jay’ could do ‘everything’ with S.E.B. except for vaginal penetration.”).
62
Even if one concluded that the jury did not necessarily find this sexual-intercourse theory of attempt, a question might exist about the correct remedy. Arguably, when the evidence is sufficient to support a lesser-included offense not necessarily found by the jury, the remedy is to remand for a new trial on the lesser-included offense. See Wooley v. State, 273 S.W.3d 260, 268-72 (Tex. Crim. App. 2008) (remanding for a new trial and holding that an appellate court cannot affirm on the basis of a theory of the charged offense that was not submitted to the jury even if the theory was supported by sufficient evidence and “the same result would likely obtain on retrial”). But for various reasons, that possible argument need not be explored here.
TRACY CONCURRENCE — 27
“masturbation” into the sexual-performance statute as the definition of “sexual
conduct” would cause the offense to read as follows:
A person commits an offense if, knowing the character and content
thereof, he . . . induces a child younger than 18 years of age to engage
in masturbation.
The word “masturbation” is not statutorily defined, so we must resort to
standard dictionaries to obtain a definition. While the definitions vary a little, the
consensus of dictionaries indicates that the term “masturbation” encompasses
both self-stimulation and stimulation by another person. Webster’s unabridged
Third New International Dictionary defines “masturbation” as:
erotic stimulation involving genital organs commonly resulting in
orgasm and achieved by manual or other bodily contact exclusive of
sexual intercourse, by instrumental manipulation, occas. by sexual
fantasies or by various combinations of these agencies.63
Another version of Webster’s dictionary suggests that this definition has been in
63
Masturbation, WEBSTER’S THIRD NEW INT’L DICTIONARY [unabridged] (2002). The definition of “masturbation” is similar but varies slightly across different versions of Webster’s Dictionary. See Masturbate, WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2016) (“to manipulate one’s own genitals, or the genitals of (another), for sexual gratification”); Masturbation, WEBSTER’S II NEW COLLEGE DICTIONARY (1995) (“Excitation of the genital organs, usu. to orgasm, by manual contact or means other than sexual intercourse”); https://www.merriam-webster.com/dictionary/masturbation (page viewed June 23, 2026) (“erotic stimulation especially of one’s own genital (see genital sense 2) organs commonly resulting in orgasm and achieved by manual (see manual entry 1 sense 1) or other bodily contact exclusive of sexual intercourse, by instrumental manipulation (see manipulate sense 1), occasionally by sexual fantasies, or by various combinations of these agencies.”).
TRACY CONCURRENCE — 28
use since 1621.64 The unabridged Random House dictionary provides two entries:
1. The stimulation or manipulation of one’s own genitals esp. to
orgasm; sexual self-gratification;
2. The stimulation, by manual or other means exclusive of coitus, of
another’s genitals, esp. to orgasm.65
The New Oxford American Dictionary defines “masturbate” with two entries:
stimulate one’s own genitals to sexual pleasure;
stimulate the genitals of (someone) to give them sexual pleasure.66
The unabridged Oxford English Dictionary defines “masturbate” as:
to produce an orgasm by stimulation of the genitals, not by sexual
intercourse;
to cause (another person) to have an orgasm by stimulation of his or
her genitals.67
64
Masturbation, WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1987); see id. at 17, Explanatory Notes, Dates (explaining significance of date notation as the earliest recorded use).
65
Masturbation, RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE
[unabridged] (2d ed. 1987). The verb forms of these two definitions are labeled as “v.i.” and “v.t.” respectively, signifying intransitive versus transitive. Masturbate, id.
66
Masturbate, THE NEW OXFORD AMERICAN DICTIONARY (3rd ed. 2010); see also id. (2001). These two definitions are labeled as “no obj.” and “with obj.” respectively. Id. (2001 and 2010).
67
Masturbate, THE OXFORD ENGLISH DICTIONARY [unabridged] (2d ed. 1989). The second definition is labeled as “trans.” Id. One of this dictionary’s definitions of “masturbation” is “erotic self-stimulation.” Masturbation, id. But immediately before this definition is another one: “The action or practice of masturbating,” id., which ties into this dictionary’s two-entry definition of “masturbate” that includes two-party masturbation. And immediately after the “erotic self-stimulation” definition is a subentry for “mutual
TRACY CONCURRENCE — 29
The American Heritage Dictionary defines “masturbation” as:
Excitation of one’s own or another’s genital organs, usually to orgasm,
by manual contact or means other than sexual intercourse.68
And while all the definitions talk about stimulating the “genitals,” well knownfacts about women’s biology indicate that stimulating the female breast can also
qualify as masturbation. For many women, stimulation of the breast can lead to
orgasms and also stimulates the genital area. Scholarly research backs this up.69
Whether masturbation is defined as self-stimulation or stimulation by
someone else, it conforms to the unit-of-prosecution facts pled in the indictment.
On the sexual-organ allegation, the indictment merely requires penetration and
does not further specify how that penetration occurs or who does the penetrating.
Likewise, the indictment does not specify who touches victim’s breast. Selfstimulation clearly also satisfies the “engage” wording of the statute. Whether the
masturbation” that is defined as “stimulation of the genitals of one person by another in order to produce an orgasm without sexual intercourse.” Id.
68
Masturbation, AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2016).
69
See Katharina Weitkamp and Fabienne Seline Wehrli, Women’s Experiences of Different Types of Orgasms—A Call for Pleasure Literacy, INT’L J. SEX. HEALTH, passim and n.1 (March 2023) (last viewed at https://pmc.ncbi.nlm.nih.gov/articles/PMC10903554/ on June 10, 2026) (“Interestingly, the women’s nipple self-stimulation activated their genital sensory region as well.”).
TRACY CONCURRENCE — 30
two-party version of masturbation satisfies the “engage” wording depends on
whether both sides of a two-party masturbation incident are participants—making
the conduct “bilateral.”
If masturbation were defined solely as self-stimulation, then the evidence
likely would not be sufficient to support a masturbation theory of attempt. It is at
least a stretch to claim that the defendant, by stimulating the victim, intended for
the victim to ultimately stimulate herself. And even if the evidence were sufficient
to support such a conclusion, it could not be said that the jury necessarily found
Appellant to have possessed such an intent.
But if masturbation includes stimulation by someone else and if both sides of
the masturbation transaction are participants—making masturbation
“bilateral”—then the evidence is sufficient to show a masturbation attempt and
the jury necessarily found such an attempt. Sufficiency is a no-brainer. The
evidence shows that Appellant actually rubbed the victim’s breast and touched her
clitoris. It also shows that he told the victim how “romantic” the situation was,
how attracted to her he was, and that he “knew it was wrong but couldn’t help
himself.” He also engaged in numerous physical acts of affection, including
kissing, rubbing her breast and other parts of her body, feeling her underwear, and
TRACY CONCURRENCE — 31
ultimately touching her clitoris. The evidence easily supports a conclusion that he
was intending to get her cooperation and intending to stimulate her.
That evidence also shows that, for bilateral-masturbation attempt, he
crossed far beyond the mere preparation line. Appellant in fact committed every
act needed to accomplish the offense; the only thing lacking was the victim’s
cooperation. That fact also means there was no possibility of renunciation. It
would be the same as a bullet missing its intended target.70
Whether the jury necessarily found that Appellant intended the victim to
cooperate in his sexual stimulation of her is a slightly more complex question, but
we can confidently resolve that question in the State’s favor. The indictment
alleged sexual-organ-penetration and breast-touching in the alternative, but both
can qualify as (bilateral) masturbation. Even if breast-touching could not qualify as
masturbation, a jury that found Appellant guilty under the facts would not have
done so solely on the basis of him touching the victim’s breast but would also have
70
See Gibbons v. State, 634 S.W.3d 700, 705 (Tex. Crim. App. 1982) (“There is little difficulty when the actor does everything necessary to commit the intended offense, but the intended result does not occur. For example, it is clearly attempt when the actor’s bullet misses its intended target, when the victim does not die from his wounds, or when someone discovers the bomb and disarms it before the time it is set to explode. (In the last example, if the actor changes his mind voluntarily and disarms the bomb himself, the renunciation defense, see Section 15.04, will be available.)”).
TRACY CONCURRENCE — 32
concluded that he penetrated her sexual organ.71
And although the charged offense required only that Appellant “knowingly”
induce the victim, under the evidence in this case, any jury believing that Appellant
knowingly induced the victim to cooperate with him in stimulating her would
necessarily also believe that he intentionally induced her to do so. With respect to
conduct or results, “intent” means to have the “conscious objective or desire” to
engage in conduct or cause a result, while knowledge means being “aware of the
nature of his conduct” or “aware that his conduct is reasonably certain to cause
the result.”72 Often, the line between knowledge and intent is thin, and under
some circumstances, that line disappears altogether. If Appellant had induced the
victim to allow someone else to touch her, or if he touched her as part of a play or
for some non-sexual reason, then perhaps he could indeed “knowingly” induce her
to cooperate in being sexually stimulated without intentionally doing so. But here,
Appellant was the person touching the victim, he was doing so out of his own
personal sexual desire, and he repeatedly expressed that desire to the victim as he
71
See supra at part II.C.3.
72
See TEX. PENAL CODE § 6.03(a), (b).
TRACY CONCURRENCE — 33
gradually escalated his conduct.73 If the jury believed he “knowingly” induced her
to cooperate in being sexually stimulated, then it necessarily believed that he
“intentionally” did so as well. Any conclusion to the contrary would be mere
hairsplitting.
Finally, the existence of other methods of committing sexual performance by
a child do not affect a conclusion that the jury necessarily found the masturbation
version of attempted sexual performance by a child. Only two statutory methods of
committing the completed offense of sexual performance by a child even conform
to the indictment’s unit-of-prosecution allegations: “sexual intercourse” and
“masturbation.” And under the evidence, masturbation was a step along the path
toward sexual intercourse. Thus, the jury necessarily found attempted
masturbation.
The question, then, is whether masturbation can be “bilateral” in the
context of the sexual-performance-by-a-child statute. The two-party version of
masturbation appears to be bilateral. Given that all definitions of “masturbation”
indicate that the activity is about receiving pleasure or stimulation, it stands to
reason that the recipient of the masturbation, and not just the giver, is a
73
Cf. id. §§ 21.11(c) (defining “sexual contact” as involving “the intent to arouse or gratify the sexual desire of any person”), 43.01(3) (same).
TRACY CONCURRENCE — 34
participant—at least if the recipient cooperates. And the Oxford English
Dictionary’s attachment of mutuality to two-party masturbation further suggests
that both parties must cooperate for the conduct to be considered “masturbation.”
And other dictionaries’ citation of the recipient receiving pleasure or stimulation
also suggests that the recipient’s cooperation is required for masturbation. If the
recipient does not cooperate, then there exists no masturbation at all but only
sexual contact.
The remaining question is whether the term “masturbation” in the sexualperformance statute includes the bilateral two-party definition. As observed
earlier, the two-party meaning of the term is not an outlier. That definition is
included in various Webster’s, Random House, and Oxford dictionaries. Several
Webster’s dictionaries even make it part of a unitary definition—sweeping both
one-party and two-party masturbation into a single definition of sexual stimulation
by means other than sexual intercourse. Some Webster’s dictionaries suggest that
masturbation is stimulation “especially” of one’s own genitals,74 but, while that
makes self-stimulation the most common form of masturbation, it does not
necessarily exclude stimulation of another as falling within the meaning of the
74
See supra at n.63.
TRACY CONCURRENCE — 35
term. The prevalence of the two-party meaning across dictionaries, and even
within unitary definitions of “masturbation,” suggests that including the two-party
meaning in the term is consistent with affording “any meaning which is acceptable
in common parlance.”
The dictionaries do suggest that the verb form of the two-party definition is
transitive while the verb form of the one-party definition is intransitive. Aside
from the fact that the sexual-performance statute uses the noun form rather than
the verb,75 the statutory context does not clearly limit the use of “masturbation” to
an intransitive form. “Masturbation” is itself part of the definition of “sexual
conduct,” which includes a variety of different types of activities. The statutory
context simply requires the State to show that the defendant “induce[d] a child . . .
to engage in . . . masturbation.” Can someone “engage” in masturbation by
cooperating with the person stimulating her? The earlier conclusion that the twoparty meaning of “masturbation” is bilateral means that question can be
confidently answered “yes.”
Because two-party masturbation requires mutuality, it is more than just
sexual contact. Both the initiator and the recipient must cooperate for two-party
75
But see TEX. PENAL CODE § 1.07(b) (“The definition of a term in this code applies to each grammatical variation of the term.”).
TRACY CONCURRENCE — 36
masturbation to occur. But for sexual contact, the initiator’s act alone is enough.
This distinction meshes with the focus of the sexual-performance-of-a-child statute
being on the corruption of a child rather than on an assault on the child. If the child
is merely a victim of someone else’s sexual contact with the child, that is an assault
to be handled by statutes punishing sexual assault and indecency with a child. But
if the child is a participant in two-party masturbation, then that conduct involves
the corruption of the child—conduct the sexual-performance statute targets. It is
true that the sexual-performance statute includes “sexual contact,” but as
discussed earlier, sexual contact applies in the sexual-performance statute only
when the child touches someone else’s intimate parts. In such a situation, the statute
also targets corruption of the child.
And because masturbation is more than sexual contact, the fact that it
includes sexual contact is of no consequence. “Sexual intercourse” and “deviate
sexual intercourse” also include sexual contact, and they are also methods of
defining “sexual conduct” in the sexual-performance statute.76
76
See id. §§ 43.01(1-a), (3), (5); 43.25(a)(2), (7). See also Evans v. State, 299 S.W.3d 138, 141-43 (Tex. Crim. App. 2009) (concluding, based on Judge Keller’s concurrence in Ochoa v. State, 982 S.W.2d 904, 909-11 (Tex. Crim. App. 1998) (Keller, J., concurring), that sexual contact was a lesser form of touching than penetration, making indecency with a child a lesser included offense of aggravated sexual assault of a child).
TRACY CONCURRENCE — 37
Even if “masturbation” were ambiguous, the statutory history of the sexualperformance statute lends support to the two-party meaning being part of the
overall meaning of the term. The sexual-performance statute was first enacted in
something approaching its current form in 1979.77 At the time, the offense applied
only to a “sexual performance” and extended to “sexual conduct” only within
such a performance.78 And “sexual conduct” included most of what is included
today—including “sexual intercourse,” “deviate sexual intercourse,”
“masturbation,” and “lewd exhibition of the genitals”—but did not include
“sexual contact.”79 And the protected class in the statute consisted of children
under age 17.80
In 1985, the statute was amended to proscribe “sexual conduct” outside of a
sexual performance, as the statute does today.81 In 1994, the statute was amended
77
See TEX. PENAL CODE § 43.25 (West 1979). Although a prior version was enacted in 1977, the Legislature essentially rewrote it in 1979. See id. (West 1977).
78
Id. § 43.25(a)(1), (b) (West 1979).
79
Id § 43.25(a)(3) (West 1979). The statute also did not include exhibition of the female breast. Id.
80
Id. § 43.25(b) (West 1979).
81
See id. § 43.25(b) (West 1985).
TRACY CONCURRENCE — 38
to raise the age of the child from under 17 to under 18.82 In 1999, the statute was
amended to add exhibition of the female breast to the definition of “sexual
conduct.”83 And finally, in 2003, the statute was amended to add “sexual contact”
to the definition of “sexual conduct.”84
So, until 2003, “sexual contact” was not part of the definition of “sexual
conduct.” If masturbation were interpreted as solely being self-stimulation, then
that would have resulted in the pre-2003 statute covering contact the child’s
genitals had with the genitals, mouth, or anus of another person, or with the child’s
own hands, but would exclude contact with someone else’s hands. Such a
construction borders on the absurd. It seems unfathomable that the Legislature,
even in 1979, would proscribe so much conduct directed at a child’s genitals but
allow a person to put on a play in which an adult fondles or penetrates a child’s
genitals with his hands. And it seems even more unfathomable that such a gap
would exist when the Legislature extended the prohibitions to sexual conduct
outside of a sexual performance.
We might be required to accept such a construction if “masturbation”
82
See id. § 43.25(b) (West. 1995).
83
See id. § 43.25(a)(2) (West 2000).
84
See id. § 43.25(a)(2) (West 2004).
TRACY CONCURRENCE — 39
unambiguously meant only self-stimulation. But if it can at least ambiguously also
mean stimulation by another, then the object sought to be attained by the statute
and the consequences of a particular construction would weigh in favor of
construing masturbation to include the two-party meaning.85 And even when
“sexual contact” was added to the statute, that term’s explicitly “unilateral”
nature meant that it did not close the gap that a one-party construction of
masturbation would leave in the statute. Rather, the inclusion of “sexual contact”
closed a different gap—extending liability, for example, to when a child’s hand
touches someone else’s genitals.
Consequently, reformation to attempted sexual-performance is viable on the
basis that Appellant attempted to induce the victim to cooperate in him
masturbating her.
III. CONCLUSION
I agree with the Court that the conviction for sexual performance of a child
can be reformed to attempted sexual performance of a child. Although the wording
of the sexual-performance statute does not support reformation on the basis of an
85
See Reeder, 691 S.W.3d at 632-33 (citing “object sought to be attained and “consequences of a particular instruction” as recognized extratextual factors for construing an ambiguous statute); see also TEX. GOV’T CODE § 311.023(1), (5).
TRACY CONCURRENCE — 40
attempt to cause the child to engage in “sexual contact,” it does support
reformation on the basis of an attempt to cause the child to engage in “sexual
intercourse” or “masturbation.” With these comments, I join the Court’s
opinion.
Filed: September 17, 2026
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