## Facts

- Ryan Michael Gurwell contacted a person online using the name “Emma,” believing Emma was a fourteen-year-old girl.
- The person using the Emma account was actually a law-enforcement officer conducting an undercover operation.
- Gurwell and “Emma” communicated electronically over multiple chats that progressed from general conversation to sexually explicit discussion.
- During the exchange, Gurwell made sexual comments, including remarks about Emma losing her virginity.
- The conversation led to an agreement to meet in person at a local park.
- Shortly before the planned meeting, “Emma” suggested going to Gurwell’s house; Gurwell responded that they should meet at the park and “see where it goes.”
- Gurwell went to the park at the arranged time and was arrested upon arrival.
- After arrest, Gurwell apologized and said he never intended to have sex with Emma.
- Texas charged Gurwell with online solicitation of a minor with intent to engage in sexual contact under Texas Penal Code § 33.021.
- A jury convicted Gurwell and assessed punishment at ten years’ imprisonment.
- Gurwell requested a jury instruction on the defense of renunciation under Texas Penal Code § 15.04; the trial court denied the request.

## Issues

1. Did the trial court err by refusing to instruct the jury on renunciation based on Gurwell’s later message that they would meet at the park and “see where it goes,” and his claim that he no longer intended sexual contact?

## Decision

- The court of appeals affirmed the conviction (with a modification to the judgment not affecting the guilty finding).
- The trial court did not err in denying a renunciation instruction because online solicitation under § 33.021 is a completed offense once the prohibited electronic communication is made with the required intent.
- Gurwell’s later statements and conduct did not raise renunciation as a matter of law, because renunciation under § 15.04 applies to specified inchoate offenses and does not negate liability for a crime already completed.

## Legal Principles

- A defendant is entitled to a defensive jury instruction only if the defense applies to the charged offense and there is some evidence on each element of the defense that would support a favorable finding.
- Texas Penal Code § 15.04 provides a renunciation defense for certain inchoate offenses when the actor voluntarily and completely abandons the criminal objective and takes steps to prevent the offense before completion.
- Online solicitation of a minor under Texas Penal Code § 33.021 is complete when the defendant, through electronic communications, solicits or communicates with a minor with the statutorily required sexual intent; physical contact or a completed meeting is not an element.
- A later change of mind, a softened plan, or an after-the-fact denial of intent does not retroactively negate a completed communication-based offense for purposes of § 15.04.

## Conclusion

The appellate court upheld the refusal to submit a renunciation instruction because the offense of online solicitation of a minor was completed when Gurwell sent sexually motivated electronic communications to a person he believed was fourteen, and § 15.04 does not provide a defense that cancels liability for an already completed § 33.021 offense.


Gurwell v. Texas, 2008 WL 3867637 (2008)