## Facts

- Bailey Lishian Chen posted an online advertisement seeking a “very attractive and young” nude dancer for “discreet pleasure.”
- A Dallas police detective, working in a child-exploitation task force, responded undercover using a fictitious persona (“Julie”) and communicated with Chen by email and phone.
- During the communications, the undercover officer stated “Julie” was 13 years old and seeking “independence.”
- Chen continued the communications after learning the stated age and described that he wanted a girl who “dares to be nude and watched by me while I am masturbating.”
- Chen arranged to meet “Julie” at a motel, assured her he would not hurt her, and discussed logistics of the meeting.
- Chen arrived at the agreed motel location and was arrested; officers found condoms and lubricant in his possession.
- No actual minor existed; “Julie” was an invented identity used by the officer.
- Chen was convicted in a bench trial of attempted sexual performance by a child under Texas Penal Code §§ 15.01 (attempt) and 43.25(b) (sexual performance by a child), received a sentence including confinement (suspended), and was placed on community supervision.
- The intermediate appellate court affirmed; the Texas Court of Criminal Appeals granted discretionary review on whether evidence involving only an undercover adult posing as a 13-year-old was legally sufficient to sustain the attempt conviction.

## Issues

1. Whether evidence that Chen solicited and arranged a meeting with an undercover officer posing as a 13-year-old was legally sufficient to support a conviction for attempted sexual performance by a child.
2. Whether the absence of an actual child made commission of the underlying offense “legally impossible,” thereby defeating attempt liability, or instead presented only “factual impossibility,” which is not a defense.

## Decision

- The Texas Court of Criminal Appeals affirmed the conviction.
- The court held the evidence was legally sufficient to prove attempted sexual performance by a child.
- The nonexistence of an actual child created, at most, factual impossibility, which does not bar conviction for criminal attempt under Texas law.
- Chen’s communications and conduct (including explicit sexual intent, arranging a meeting, and arriving with sexual items) constituted acts beyond mere preparation that tended to effect the intended offense.

## Legal Principles

- Under Texas Penal Code § 15.01, criminal attempt requires (1) specific intent to commit the underlying offense and (2) an act more than mere preparation that tends but fails to effect commission of the intended offense.
- Factual impossibility—failure due to circumstances unknown to the actor (such as the “victim” being fictitious or an undercover officer)—is not a defense to criminal attempt in Texas.
- Attempt liability focuses on the actor’s intent and overt acts; the State need not prove that all circumstances necessary for completion (such as the actual existence of a child) were, in fact, present, so long as the defendant believed they were.
- In internet sting contexts, a defendant may be convicted of an attempt when the defendant believes the other party is a minor and takes substantial steps consistent with committing the prohibited conduct.

## Conclusion

The court upheld Chen’s conviction because his expressed intent to involve a 13-year-old in a sexual performance and his concrete steps to carry out that plan satisfied Texas’s attempt statute, and the fact that the “child” was fictitious did not excuse attempt liability.


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