Joseph Marshall Gutierrez v. the State of Texas

AFFIRMED and Opinion Filed December 11, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00683-CR

JOSEPH MARSHALL GUTIERREZ, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-83200-2022

MEMORANDUM OPINION
Before Justices Pedersen, III, Smith, and Garcia
Opinion by Justice Smith

Appellant Joseph Marshall Gutierrez was convicted by a jury of the second-

degree felony offense of online solicitation of a minor for sexual conduct. See TEX.

PENAL CODE ANN. § 33.021(c), (f). After finding the two punishment enhancement

paragraphs true, the jury assessed appellant’s punishment at confinement for life in

the Institutional Division of the Texas Department of Criminal Justice. Appellant

challenges his conviction and sentence in three issues: (1) the evidence was legally

insufficient to support his conviction for online solicitation of a minor, (2) the trial

court erred in allowing the State to publish an exhibit by reading the text messages
contained in the exhibit in a “narrative play-like dialogue,” and (3) his punishment

of confinement for life was excessive and grossly disproportionate in violation of

the Eighth Amendment’s prohibition against cruel and unusual punishment and

article 1, section 13 of the Texas Constitution. For the reasons discussed below, we

affirm.

Procedural and Factual Background

In 2022, Investigator Lee McMillian, as part of his assignment with the Child

Exploitation Unit of the Collin County Sheriff’s Office, posed as a young female

named Peyton on Meet Me, a website or commercial online service designed so

people can meet and converse with other people throughout the world. The profile

picture used was an age-regressed photograph of a female employee of the sheriff’s

office. Appellant initiated contact with Peyton through text message to the phone

number listed on Peyton’s profile. When appellant asked Peyton what she did for a

living, Investigator McMillian, acting as Peyton, responded that she was still in

school, specifically in tenth grade. Appellant asked how old she was, and Peyton

responded that she was almost sixteen. Investigator McMillian then sent appellant

two age-regressed pictures of the female who worked at the sheriff’s office. The

communications quickly turned sexual in nature and lasted for several days before

the two arranged to meet at a Super 8 motel in McKinney.

Prior to their meeting, appellant tried to call Peyton numerous times, but

Peyton always offered an excuse as to why she was not able to answer. On two

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occasions, a female employee of the sheriff’s office posed as Peyton and talked to

appellant on the phone. Appellant and Peyton also exchanged several more pictures:

Investigator McMillian, acting as Peyton, sent another age-regressed picture of the

female sheriff’s office employee and appellant sent two pictures of himself and two

pictures of a male sexual organ.

When appellant arrived at the motel, Investigator McMillian approached him

in the lobby and asked him to step outside. Appellant was arrested and taken into

custody. When Investigator McMillian searched appellant’s pockets, he found a sex

toy, specifically a silicone ring to place around the male sexual organ, and a box of

condoms.

Appellant was charged with online solicitation of a minor and his case

proceeded to trial. The jury found him guilty and found that he had twice been

previously convicted of a felony. He was sentenced to life in prison. After his

motion for new trial was denied by operation of law, this appeal ensued.

Sufficiency of the Evidence

Appellant argues in his first issue that the evidence is legally insufficient to

support his conviction for online solicitation of a minor. Specifically, he contends

that there was insufficient evidence to show that he believed Investigator McMillian,

aka Peyton, was younger than seventeen years of age. Although Peyton held herself

out as a fifteen-year-old in tenth grade, the website on which appellant found her

restricted its users to eighteen and older. Additionally, the profile picture

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Investigator McMillian used for Peyton was not conclusive evidence that Peyton

was under eighteen and appellant twice spoke with an adult employee of the sheriff’s

office, not a young child, before he agreed to meet. Furthermore, Investigator

McMillian could not eliminate the possibility that appellant was merely role playing

or had a fantasy of pretending that Peyton was a minor. Therefore, appellant argues,

the jury was presented with a reasonable doubt that appellant actually believed

Peyton was a minor and, thus, the jury’s guilty verdict was not rational.

In reviewing the legal sufficiency of the evidence, we consider whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v. State, 330

S.W.3d 633, 638 (Tex. Crim. App. 2010). A criminal conviction may be supported

by both direct and circumstantial evidence as well as all reasonable inferences that

may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). We review the evidence in the light most favorable to the verdict and

defer to the trier of fact to resolve conflicts in testimony, to weigh the evidence, and

to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319;

see also Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Isassi, 330

S.W.3d at 638. The jury may choose to believe or disbelieve any part of any

witness’s testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

“When the record supports conflicting inferences, we presume that the factfinder

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resolved the conflicts in favor of the prosecution and therefore defer to that

determination.” Clayton, 235 S.W.3d at 778.

The sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). A hypothetically correct jury charge is “one that 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.” Id.

A person commits the offense of online solicitation of a minor if the actor,

over the internet, by electronic mail or text message or other electronic message

service or system, or through a commercial online service, knowingly solicits a

minor to meet another person, including the actor, with the intent that the minor will

engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the

actor or another person. TEX. PENAL CODE § 33.021(c). The penal code definition

of “minor” includes not only an individual who is younger than seventeen but also

an individual whom the actor believes to be younger than seventeen. Id. §

33.021(a)(1). Tracking the language of the statute, the indictment in this case alleged

that appellant knowingly solicited Lee McMillian, a minor, over the internet, by text

message, and through a commercial online service, to meet appellant with the intent

that McMillian would engage in sexual contact, sexual intercourse, and deviate

sexual intercourse with appellant.

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There is no dispute that Investigator McMillian was not a minor and that

Peyton did not exist. Thus, appellant’s sufficiency challenge turns on whether the

State presented sufficient evidence to show that appellant believed Investigator

McMillian, aka Peyton, was younger than seventeen.

Appellant did not testify at trial and, although he maintains through his

counsel’s arguments that the evidence raised a reasonable doubt as to whether he

believed he was talking to a fifteen-year-old girl, the jury rejected this contention at

trial. See Clayton, 235 S.W.3d at 778 (“When the record supports conflicting

inferences, we presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.”). We conclude that there was

legally sufficient evidence before the jury to support its verdict.

The evidence at trial showed that Investigator McMillian, aka Peyton, told

appellant that he was speaking with a fifteen-year-old, almost sixteen-year-old girl.

Investigator McMillian also represented Peyton as a sophomore in high school who

lived at home with her mother and would have to pretend she was spending the night

with her “bestie” in order to meet up. When Investigator McMillian sent appellant

a picture of a young girl, appellant responded, “damn ur beautiful,” “if I was to have

sex with you I would get into a lot of trouble.” Appellant also told Peyton, “this is

my first time being with someone under 18.” Therefore, appellant admitted in his

text messages that he believed he was talking with someone younger than seventeen.

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Furthermore, it does not appear from the record that Investigator McMillian

included a specific age with Peyton’s profile on Meet Me. He acknowledged the

terms of service required the user to be eighteen or older and if the site finds out you

are under eighteen the site will kick you off and ban you. He testified he gets banned

all the time working as an undercover officer. However, there was no evidence that

he got banned this particular time or that he communicated Peyton’s age to appellant

through the website. Instead, appellant initiated contact with Investigator McMillian

by texting the phone number associated with the online profile and all their

conversations occurred outside of the website’s governance. Additionally,

Investigator McMillian testified that there were online groups specifically designed

for “role-play” and law enforcement stayed out of those areas. In describing the

process that generally occurs when conducting these types of investigations, he

explained that he uses an age-regressed photograph to create the profile so that the

female appeared as a teenager. However, the majority of people, when they reached

out and learned they were speaking with a minor, walked away. Appellant did not.

It was within the jury’s province to resolve conflicting inferences and weigh

the evidence as to whether appellant believed he was arranging to engage in sexual

conduct with a person younger than seventeen. See id. at 778; Wesbrook v. State, 29

S.W.3d 103, 111 (Tex. Crim. App. 2000). The evidence is legally sufficient to

support the jury’s finding that he did and, thus, committed the offense of online

solicitation of a minor. See, e.g., Neill v. State, No. 05-23-00277-CR, 2024 WL

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3715722, at *5 (Tex. App.—Dallas Aug. 8, 2024, no pet.) (mem. op., not designated

for publication) (in concluding evidence was legally sufficient to show appellant

believed Investigator McMillian, aka Peyton, was under seventeen, the court

explained that “the jury was free to disregard defendant’s self-serving statements

that Peyton looked older than 15”); Perales v. State, 622 S.W.3d 575, 581–82 (Tex.

App.—Houston [14th Dist.] 2021, pet. ref’d) (rejecting appellant’s argument that

evidence showing Plenty of Fish website was supposed to be for users eighteen or

older, girl’s profile said she was eighteen, and girl’s profile picture looked like a

twenty-three year old raised a reasonable doubt as to whether appellant believed the

girl was younger than seventeen where officer, posing as the girl, told appellant she

was sixteen, in school, and lived with her mother); Maloney v. State, 294 S.W.3d

613, 618–19 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (concluding evidence

was sufficient to support conviction for online solicitation of a minor where

undercover officer repeatedly told appellant she was thirteen even though appellant

argued that he believed she was an adult woman engaged in role-playing, i.e.

pretending to be a thirteen-year-old girl while he pretended to be her “daddy”). We

overrule appellant’s first issue.

Publication of State’s Exhibit No. 1

In his second issue, appellant contends that the trial court erred by permitting

the State to improperly publish State’s Exhibit No. 1 to the jury by allowing the

prosecutor and Investigator McMillian to read the text messages contained in the

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exhibit in a “narrative play-like dialogue.” Appellant asserts that the reenactment

was repetitive and more prejudicial than probative because it did not accurately

portray the exhibit but, instead, was a gross mischaracterization of the evidence and

allowed the State to create audible and verbal conversation that did not exist in

State’s Exhibit No. 1. “Through hearing the text messages in a play-like narration,

combined likely with voices and intonation, the jury was unduly influenced as to the

evidentiary weight of the exhibit.” In short, appellant argues the reenactment was

misleading, caused unfair prejudice, and needlessly presented cumulative evidence.

The manner and means of presenting documentary evidence to the jury is best

left to the sound discretion of the trial court. Wheatfall v. State, 882 S.W.2d 829,

838 (Tex. Crim. App. 1994). We will not disturb a trial court’s ruling on appeal

absent an abuse of discretion. Id. A trial court abuses its discretion when it acts

outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991) (op. on reh’g).

State’s Exhibit No. 1 is a printout of text messages exchanged between

Investigator McMillian, aka Peyton, and appellant. After the trial court admitted

State’s Exhibit No. 1, the prosecutor asked to publish the exhibit to the jury by

providing each juror with a copy of the exhibit while also reading the text messages

onto the record. Defense counsel objected, first arguing that “with that many copies

of the same document floating around, I just think it would add for confusion.”

Defense counsel asked, “Wouldn’t it be better to just post it?” The trial court stated

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that publishing was appropriate and allowed the copies to be distributed to the jury.

The State assured the court that it would retrieve the copies after it finished

publishing the content.

The State then asked Investigator McMillian a few questions regarding how

the conversation was initiated, when Peyton’s age was revealed, when the

conversation turned to sex, which number represented who in the exchange, and

when they established a time to meet. The prosecutor next explained she would read

the messages to publish them, specifically that she would read appellant’s messages

and Investigator McMillian would read Peyton’s messages. Defense counsel

objected arguing that the jury had already been given copies of the text messages

and the exhibit had already been published; thus, rereading the exhibit was akin to a

question being asked and answered and should not be repeated. Defense counsel

asserted, “The witness should be free to be able to testify about what’s in there, but

to turn it into a narrative like a play, I think is going to be more prejudicial than

probative and repetitive.” The trial court overruled defense counsel’s objection and

the prosecutor read the messages sent by appellant while Investigator McMillian

read the messages he sent as Peyton. During the reading of the text messages, the

prosecutor posed other questions to Investigator McMillian concerning the messages

and offered other exhibits for admission.

Rule 611 provides, “The court should exercise reasonable control over the

mode and order of examining witnesses and presenting evidence so as to: (1) make

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those procedures effective for determining the truth; (2) avoid wasting time; and (3)

protect witnesses from harassment or undue embarrassment.” Appellant has not

directed us to any cases, nor have we found one, in which an appellate court

concluded that the trial court abused its discretion by allowing publication of text

messages by reading them. In fact, it is common practice to publish written

documents to the jury in this way. Wheatfall, 882 S.W.2d at 837–38; see also Hanks

v. State, No. 09-23-00132-CR, 2024 WL 4142839, at *2 (Tex. App.—Beaumont

Sept. 11, 2024, no pet.) (mem. op., not designated for publication) (noting prosecutor

and undercover officer read the text message exchange between appellant and the

undercover officer, who was posing online as a fourteen-year-old girl, aloud to the

jury); Walter v. State, 581 S.W.3d 957, 977 (Tex. App.—Eastland 2019, pet. ref’d)

(noting police officer read approximately sixty-five text messages to the jury);

Martini v. State, No. 05-17-00639-CR, 2018 WL 3598978, at *1 (Tex. App.—Dallas

July 27, 2018, no pet.) (mem. op., not designated for publication) (noting many of

the text messages between appellant and the child victim, including some that were

sexually graphic, were read to the jury); Bass v. State, No. 05-13-00518-CR, 2015

WL 3415636, at *2 (Tex. App.—Dallas May 28, 2015, pet. ref’d) (mem. op., not

designated for publication) (noting prosecutor and investigating officer read

incriminating portions of the text messages from the victim’s and the co-actor’s

phones to the jury).

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Furthermore, the record on appeal does not support appellant’s argument that

the prosecutor and Investigator McMillian read the text messages in such a way that

resulted in a “gross mischaracterization of the evidence.” The reading tracks the

admitted messages, and the record does not show that the reading of the exhibit was

a dramatical re-enactment of the conversation. In fact, defense counsel never

objected or raised a complaint as to how the messages were being read to the jury.

Moreover, we disagree that reading the text messages aloud while letting the jury

follow along on a printed copy was repetitive or needlessly cumulative. It was, in

effect, simultaneous and simply allowed the jury to hear the words exchanged as

well as see the messages as written. Therefore, we cannot conclude that the trial

court abused its discretion by permitting the State to publish the text messages to the

jury by reading them aloud. We overrule appellant’s second issue.

Punishment Assessed

Appellant argues in his third issue that the jury’s punishment verdict of life

imprisonment was excessive and grossly disproportionate in violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment and article 1,

section 13 of the Texas Constitution. Because there is no significant difference

between the protections afforded by the state and federal constitutions with respect

to cruel and unusual punishments, see Cantu v. State, 939 S.W.2d 627, 645 (Tex.

Crim. App. 1997), we address appellant’s challenges under the Eighth Amendment

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of the United States Constitution and article 1, section 13 of the Texas Constitution

together.

A sentence that is grossly disproportionate to the crime violates the Eighth

Amendment’s ban on cruel and unusual punishment. Graham v. Florida, 560 U.S.

48, 59–60 (2010). “[A] sentence is grossly disproportionate to the crime only in the

exceedingly rare or extreme case.” State v. Simpson, 488 S.W.3d 318, 322–23 (Tex.

Crim. App. 2016). Generally, a sentence that falls within the statutory limits,

including punishment that has been enhanced to a higher range under a habitual-

offender statute, is not excessive, cruel, or unusual. Id. at 323.

The proportionality of a sentence is evaluated by comparing the gravity of the

offense against the severity of the sentence. Graham, 560 U.S. at 60. The gravity

of the offense includes not only the harm threatened to the victim and the culpability

of the defendant, but also the defendant’s prior offenses regardless of whether they

were adjudicated. Simpson, 488 S.W.3d at 323. In the rare case in which the

offense-to-sentence comparison leads to an inference of gross disproportionality, we

then compare the defendant’s sentence with the sentences received by other

offenders in the same jurisdiction, as well as sentences imposed for the same crime

in other jurisdictions. Graham, 560 U.S. at 60. If this second comparison validates

the initial inference that the sentence is grossly disproportionate, the sentence is cruel

and unusual. Id.

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Appellant acknowledges that with his two prior convictions his punishment

range was enhanced from that of a second-degree felony—imprisonment of not more

than twenty years or less than two1—to imprisonment for life or a term of not more

than ninety-nine years or less than twenty-five.2 He also acknowledges that his

priors were for serious felony offenses. However, appellant asserts his life sentence

is grossly disproportionate to the crime because the victim in this case was a sheriff’s

investigator posing as a fifteen-year-old female, not a real child who was harmed.

Furthermore, the State did not produce a witness in the punishment phase, therefore

there was no testimony regarding the egregious nature of any of his prior felonies.

The evidence was strictly documentary.

The State responds that appellant’s argument ignores the fact that the offense

of online solicitation of a child for sex poses a substantial threat to society even when

the defendant is actually soliciting an undercover officer, not a minor. See Saravia

v. State, No. 02-22-00138-CR, 2023 WL 2805902, at *4 (Tex. App.—Fort Worth

Apr. 6, 2023, no pet.) (mem. op., not designated for publication). We agree.

Although appellant did not get the chance to act on his intentions, he described to

Peyton in graphic detail the sexual acts he wanted to perform on her, including taking

her virginity. He also arrived at the motel to meet Peyton with a sex toy and

1
See TEX. PENAL CODE § 12.33(a).
2
See TEX. PENAL CODE § 12.42(d).
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condoms. Thus, the threatened harm was serious and appellant’s culpability was

well-established.

As to the evidence of appellant’s priors, the State argues “appellant’s criminal

history shows he is not just a man with a persistent aversion to the law; he is a violent

man who preys on others and, in particular, children.” The State contends that

“leniency shown to appellant in the past did not curb his deviant sexual appetite or

inspire him to walk the straight and narrow.” The State made a similar argument to

the jury when it asked for a life sentence below, after establishing that appellant had

previously been unsuccessful on deferred adjudication community supervision and

that his prior five-year prison sentences had not deterred him from committing the

crime at issue.

While appellant is correct that there were no live witnesses to describe in

detail the nature or impact of his prior felonies, the punishment evidence showed

that his priors included indecency with a child by exposure, failure to register

annually as a sex offender for life, and aggravated assault family violence causing

serious bodily injury with a deadly weapon—a knife. The victim in his indecency

case was nine years old. And, as the State duly notes, failure to register as a sex

offender prevents authorities from monitoring and limiting an offender’s access to

other potential victims.

We conclude, in light of appellant’s criminal history, which not only showed

a proclivity toward engaging in sexual conduct with minors but also committing a

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violent act within the home, that this is not one of those “rare” cases where we can

conclude that his life sentence is grossly disproportionate to his crime of soliciting a

minor for sex, which was enhanced with two prior felonies. See Simpson, 488

S.W.3d at 323 (noting the Supreme Court of the United States had only twice held

that a non-capital sentence imposed on an adult defendant was constitutionally

disproportionate). His sentence may have been harsh, but it was not

unconstitutional. See id. at 324. We overrule appellant’s third issue.

Conclusion

Having overruled each of appellant’s three issues on appeal, we affirm the

judgment of the trial court.

220683f.u05 /Craig Smith//
Do Not Publish CRAIG SMITH
TEX. R. APP. P. 47.2(b) JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JOSEPH MARSHALL On Appeal from the 296th Judicial
GUTIERREZ, Appellant District Court, Collin County, Texas
Trial Court Cause No. 296-83200-
No. 05-23-00683-CR V. 2022.
Opinion delivered by Justice Smith.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Garcia
participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 11th day of December, 2024.

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