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COMMENTARY
Can a prosecutor’s closing argument
undermine a sexual grooming
conviction?
Elisa Reiter and Daniel Pollack｜ August 14, 2024
Would a text message disseminated by a 31-year-old man to a 10-year-
old girl, including a meme of a dancing pickle and the text “tickle my
pickle,” be enough to make the average reasonable person conclude that
the sender was trying to solicit sex from the girl? Texas Penal Code
Section 33.02(c) provides:
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“If the person, 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.”
In the recent case of Sanchez v. State, the First District Court of Appeals
recently issued a memorandum opinion in which the appellate court
addresses what constitutes sufficient evidence of sexual grooming, and
further, whether certain comments by a prosecutor constituted grounds
for a successful appeal of a sexual predator’s conviction.
Our world is enhanced by access to modern technology. Ten-year-old
“Alice” was given access to a cell phone by her well-intentioned family.
One day early in 2018, she dialed a wrong number on her cellphone.
Realizing her error, she terminated the call soon after dialing the
number. Alice had inadvertently phoned Caesar Dominic Sanchez.
Sanchez capitalized on the young woman’s error and began texting with
her. Sanchez’s texts were “sexually explicit, describing sexual acts he
would like to perform on the 10 year old. Once Sanchez made plans to
meet ‘Alice,’ the police department executed a search warrant at
Sanchez’s apartment, and Sanchez was arrested.” Sanchez subsequently
appealed his conviction, challenging the sufficiency of the evidence that
supported his conviction, as well as the propriety of certain comments
made by the prosecutor at trial.
Key elements required for a conviction of the offense with which Sanchez
was charged include:
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• Online communication between the defendant and a minor.
• The nature of the communications must be sexually explicit or
intended to arouse or gratify sexual desire.
• The defendant must have intended to meet the minor for sexual
activity.
• The defendant’s intent to meet the minor must be evident from the
nature of the messages.
Fortunately, Alice’s parents monitored her phone. When Alice’s mother
saw a number saved as “friend,” and that “friend” had been sending her
daughter sexually explicit messages, and further, that Alice had sent the
friend pictures of Alice’s face, family photos, and pictures of the child’s
dog and cat, Alice’s mother took Alice’s phone to the Pearland Police
Department. The exchanges had continued even though Alice had
informed her “friend” that she was only 10 years old. At the Pearland
Police Department, Alice’s mother met detective Arnold, who was part of
the Internet Crimes Against Children Task Force. Recognizing the
grooming nature of Sanchez’s texts, Arnold and detective Jaso retained
Alice’s phone, assumed her identity, and began to chat online with
Sanchez.
The appellate court’s memorandum opinion includes quotes from
Sanchez’s texts to Alice. By the time of the quotes below, the detectives
had Alice’s phone, and were engaged in texting with Sanchez. The texts
were crucial in establishing the sexually explicit nature of the
communications. For example, in addition to his “tickle my pickle” meme,
Sanchez texted Alice:
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• “I feel like you are someone who wants to be special to one person,
and I hope one day I can be special to you. I know you’re young, so
it’s not like I’m looking to not wait for you to get older. But I do
wish you were because I’d enjoy taking a sex [sic] girl like you out
on a date. Hopefully you’re the kind of girl who does not get tired of
me.”
• “I guess if I got the chance to keep you company, I would cover you
in my kisses.”
• “Part of me wants to get a room, pick you up and should have [sic]
my big cock inside of you and make you feel my heartbeat as it
throbs between your legs. But I want to know what you want.”
Sanchez was emboldened on Valentine’s Day, 2018, to ask Alice where
she lived, and his desire to meet her, via text. They discussed birth
control and again touched on her age. He stated that he wished he could
be close to her. “Alice” texted Sanchez about a restaurant close to her
home—a Burger King—where they could meet. Sanchez responded that
if he kissed her in public, it might arouse suspicion. The detectives sent a
message to Sanchez (as Alice), giving him the opportunity to walk away:
“Maybe we should wait. Goodbye.” Instead of walking away, 72 hours
later Sanchez texted “Alice” again, noting his disappointment that she
had not provided him with a specific address where they should meet.
Jaso responded to Sanchez as Alice with a fictitious address in Pearland
across from a Burger King—the very type of fast-food restaurant Alice
had alluded to. That text instructed Sanchez to let Alice know when he’d
arrived. Sanchez responded that he would get condoms and come to her
before her mother got home. A few more texts were exchanged,
including Sanchez’s final text, outlining how he and Alice would engage
in fellatio and cunnilingus.
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Four days later, the police presented a warrant to Sanchez at his
apartment. He was not alone. His wife was present, as were his three
children, who ranged in age from 10 months to 11 years old. As part of
the search warrant execution, the police seized Sanchez’s cellphone and
a memory card. When Sanchez was interviewed, he not only denied
culpability, he claimed that he thought he was exchanging messages with
a “bot,” not a real 10-year-old girl. Sanchez described the nature of his
communications as indicative of his intent to please others.
At trial, a witness testified that forensic analysis of Sanchez’s phone
reflected that on the day he received the text to meet with Alice at an
apartment, he had trolled the internet for the apartment location. There
was also evidence that Sanchez had searched Alice’s family on the
internet in early 2018, when Sanchez and the child first began texting,
and further, that Sanchez searched not only for the child’s surname, but
that he had viewed Alice’s mother’s LinkedIn page. In early January,
2018, Sanchez and Alice exchanged almost 470 messages. There were
more than 200 additional messages after the detectives assumed Alice’s
persona.
At trial, Sanchez had the support of most of his family, who testified that
he was “a good father,” and “a contributing member of society,” active at
his “Buddhist temple.” In addition, evidence was presented that
Sanchez’s wife was deaf and suffered from chronic fatigue. Arguments
were made that probation was appropriate so that Sanchez’s four
children would not suffer due to having their father jailed.
By contrast, Sanchez’s stepdaughter testified for the prosecution, noting
that she had known Sanchez for 10 years. The stepdaughter also testified
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that Sanchez, while out on bond awaiting trial, had texted her sexually
explicit messages. She was 13 at the time.
Following Sanchez’s conviction, during the punishment phase of the trial,
the prosecutor made the following comments regarding the defendant’s
lack of remorse:
“If you remember Monday what one of the jurors in the back said,
rehabilitation is the onus of the person. Right? It’s their responsibility to
get better, to get help, to recognize that they’ve got a problem. And [*22]
what, what evidence did you hear of that today? None. You didn’t hear a
single person, not his dad, not his stepmom, nobody talked to you about
how bad he felt. Nobody said he expressed any level of remorse. His dad
didn’t even know that he had been convicted. Right? No one talked to you
about the help he was seeking out, the counseling he was going to get. He
didn’t get it. Right? Because that was no clue that you needed to get help
when you were in the back of a police car surrounded by three other
cops asking you why you’re asking a 10 year old—I’m not going to read
it. You have absolutely no evidence, no shred of evidence, no testimony,
no nothing, that he expresses or feels any amount of regret.”
Sanchez contends that these comments could be construed as an implied
or indirect allusion to his silence or failure to testify. The appellate court
disagreed, finding that “[t]he prosecutor’s comments were based on
evidence and were reasonable inferences. They did not introduce new
facts or rely on emotion to sway the jury.” The appellate court found that
the evidence adduced at trial was sufficient to support the jury’s verdict,
in which the jury found that Sanchez was guilty. The prosecution proved
its case beyond a reasonable doubt. The appellate court ruled that the
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prosecutor’s comments did not affect the fairness of the trial. The
appellate court emphasized the evidence presented at trial, by focusing
on the explicit messages and the defendant’s expressed intent to meet
the child. That evidence was compelling, and supported conviction. The
prosecutor’s comments were found to be within the bounds of proper
advocacy.
Elisa Reiter, a senior attorney with Calabrese Budner in Dallas, Texas, is
Board Certified in Family Law and in Child Welfare Law by the Texas
Board of Legal Specialization. She has served as an Adjunct Professor at
SMU. She is also admitted to practice in the District of Columbia,
Massachusetts, and New York. Contact: elisa@calabresebudner.com.
Daniel Pollack, is a professor at Yeshiva University’s School of Social
Work in New York City. He was also a commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon
commission created to examine the institutional responses to sexual
grooming and abuse by former USA Gymnastics physician Larry Nassar.
Contact: dpollack@yu.edu.
Original link: https://www.law.com/texaslawyer/2024/08/14/can-a-prosecutors-
closing-argument-undermine-a-sexual-grooming-conviction/