Dillion Alan Neill v. THE STATE OF TEXAS

Affirmed as Modified and Opinion Filed August 8, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00277-CR

DILLION ALAN NEILL, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause No. 416-82674-2022

MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Kennedy
Opinion by Justice Miskel
Dillion Alan Neill appeals the trial court’s amended judgment convicting him

of online solicitation of a minor.1 The jury found him guilty and assessed his

punishment at ten years of imprisonment. Neill raises three issues on appeal, arguing

that: (1) the evidence is insufficient to support his conviction; (2) he suffered

egregious harm because the trial court failed to include the definition of “intent” in

1
Neill’s appeal initially included an additional issue in which he asserted that the trial court erred by
failing to pronounce his sentence in his presence. This Court resolved this issue by ordering abatement of
this appeal and oral pronouncement of Neill’s sentence in his presence. The trial court carried out the oral
pronouncement and amended the judgment to reflect this action. Because this issue has been resolved, we
overrule this issue as moot. We construe this appeal as an appeal from the judgment as so amended.
the jury charge; and (3) the amended judgment should be modified because it

incorrectly states that the victim was fifteen years old.

We conclude that the evidence is sufficient to support Neill’s conviction. We

further conclude that the trial court’s failure to include the definition of intent in the

jury charge did not egregiously harm Neill. We also conclude that the amended

judgment contains an error and should be modified to state that the victim’s age is

not applicable. Accordingly, we affirm the amended judgment as modified.

I. Background

Collin County Sheriff’s Deputy Lee McMillian worked in the division of the

Collin County Sheriff’s Office that investigated online crimes against children. As

part of an undercover operation, he set up accounts online using the name “Peyton”

and provided contact information.

On April 12, 2022, Neill began texting Peyton around 2:41 p.m. He asked her

to meet him and described the sexual contact and intercourse that he wished to

engage in with her. He also asked for a photograph. Peyton then told him that she

was “almost 16” but that she wanted him to come over. Neill questioned her age

and said she was trying to get him arrested. Peyton denied that. Neill asked if she

knew of a place where “nobody would know or find us or find out.” Peyton said

that she was at her aunt’s house alone all day until midnight. After he reiterated his

request for photographs, McMillian sent him a series of photographs depicting a

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young girl in her mid-teens. Neill responded, “You look older.” Peyton texted back,

“I’m not lol.”

Neill then began asking about her past sexual experiences, whether she was a

virgin, whether she had experienced digital penetration, anal sex, or oral sex. Peyton

replied that she had only done touching over clothes with boys but had gone further

with a female friend. Neill then asked if this friend would like to join them. Peyton

asked Neill what he would do with both of them, and Neill talked about watching

the two of them, after which they would “share” him sexually. Peyton texted that

her friend was also 15 years old. Neill texted, “I just seriously don’t want to get into

any trouble so idk if I should do anything.” He then told Peyton to ask if her friend

“would want to share a dick to suck and both take turns taking it inside you plus play

and eat and finger each other and whatever else.” McMillian sent a photo depicting

two young women posing as Peyton and her friend. Peyton texted Neill for a

response, messaging “so what u wanna do” and, twenty-six minutes later, “you

there?”

At this point, Neill expressed concerns that Peyton might be a police officer,

or that she might be setting him up. Peyton sent him another photo of the same

young woman holding a sign with Neill’s name on it. But after Peyton assured him

otherwise and told him that she and her friend keep good secrets, he returned to

asking whether she and her 15-year old friend were virgins. He then asked Peyton

to invite her friend, but only if Peyton was certain that her friend could “keep a

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secret.” When Peyton texted that her friend was “okay with it,” he asked her to

invite her friend so that the friend and Peyton could meet him for sex that evening.

Peyton told Neill she and her friend could be at the park in 25 minutes.

Neill asked for a video chat to ensure that Peyton and her friend were not

police officers or involved in a setup. Peyton offered to call him but said she was

not taking her clothes off on the phone. Neill questioned why Peyton was “so eager

for this to happen and putting it to [sic] so badly.” Peyton texted the park address to

Neill. About an hour later, Peyton texted a photo of herself at a park. Neill did not

meet her at the park.

About two hours later, Neill texted Peyton again and asked if she still wanted

to meet. She said that it would have to be the next day because her aunt was coming

back home. He told her to “sneak out” and then described several explicit sexual

acts he would perform on her. Peyton responded, “tomorrow.” Neill replied that he

had to work the next day but requested more photos.

Peyton reached out to Neill the next day and asked if he was going to see her

later. Later that night, he texted that he was done with work and “headed [her] way,”

but Peyton did not respond until the next morning. Neill and Peyton briefly texted

back and forth over the next two days. Neill then contacted her again eight days

later and asked if she and her friend still wanted to have sex with him, but he also

demanded proof that she was not law enforcement and that he would not end up in

jail. McMillian had a female undercover officer call Neill and pretend to be Peyton,

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and they talked for nine minutes. After the call, when Peyton refused to have phone

sex first, Neill again expressed concern that her reluctance to do anything other than

in person was the reason he believed that it was a set up waiting to happen.

Over the next few days, Neill again asked if Peyton would engage in phone

sex with him. When she refused, he stated that her refusal made him suspect she

was setting him up. She stated that she did not want to do phone sex because the

boys at her school always want to do that. Neill also repeatedly stated that he wanted

to have sex with her, but he did not want to go to prison. He asked one more time:

“Please can I see your pussy and you naked[.]” “It would pretty much guarantee me

to come meet you if you do[.]” The texts then stopped.

McMillian obtained an arrest warrant. He and Collin County Sheriff’s

Investigator Travis Monk arrested Neill on May 3, 2022 at his apartment in Fort

Worth and seized his cell phone. In his apartment, police found containers with

3.28 grams of methamphetamine. They found texts on his cell phone suggesting that

he had been trying to purchase a firearm sometime around May 2, 2022, but they

found no evidence that he had purchased one. At the time of his arrest, Neill had

been on deferred adjudication probation for about a month for possession of

methamphetamine. Monk obtained a search warrant for the phone eight months

later. A Wylie police detective extracted the data from the phone, which confirmed

that Neill’s phone had sent and received the texts with Peyton and had received the

phone call.

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Neill pleaded not guilty to online solicitation of a minor, a second degree

felony. A jury found him guilty and assessed his punishment at ten years of

imprisonment. This appeal followed.

II. Evidence is Sufficient

In his first issue, Neill argues that the evidence is insufficient to support his

conviction for online solicitation of a minor because it does not prove (1) that Deputy

Lee McMillian2 is a minor, (2) that Neill knowingly solicited McMillian to meet, or

(3) that Neill specifically intended to engage in sexual activity with McMillian

(posing as Peyton).

A. Standard of Review

Under the Due Process Clause, a criminal conviction must be based on legally

sufficient evidence. Harrell v. State, 620 S.W.3d 910, 913 (Tex. Crim. App. 2021).

To analyze the sufficiency of the evidence, a reviewing court must determine “the

essential elements of the crime” for which the State must provide sufficient evidence

to support a conviction. Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App.

2023). To identify these essential elements, appellate courts examine the

hypothetically correct jury charge for the case, which sets out the statutory elements

of the offense as modified by the charging instrument. Id.

2
Neill refers to “McMillian” rather than Peyton even when indicating the purported minor; however,
we generally will refer to “Peyton” because she is the online persona used by McMillian in this case.
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Courts perform a sufficiency review by examining all of the evidence in the

record in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Id. The jury is the sole judge of the credibility and weight to be attached to

the testimony of witnesses. Id. When the record supports conflicting inferences,

reviewing courts presume that the jury resolved the conflicts in favor of the verdict,

and we defer to that determination. Id. Each fact need not point directly and

independently to the defendant’s guilt as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction. Id.

Direct evidence and circumstantial evidence are treated equally, and

circumstantial evidence alone can be sufficient to establish guilt. Id. A jury may

infer intent from circumstantial evidence such as the acts, words, and conduct of the

defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Evidence

may be legally insufficient when the record contains either no evidence of an

essential element, merely a modicum of evidence of one element, or if it conclusively

establishes a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.

App. 2017).

B. Essential Elements of Online Solicitation of a Minor

The Texas Penal Code provides that a person commits online solicitation of a

minor if:

the person, over the Internet, by electronic mail or text message or other
electronic message service or system, or through a commercial online
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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). A “minor” includes an individual whom the actor

believes to be younger than 17 years of age. Id. § 33.021(a)(1)(B) (emphasis added).

It is not a defense to prosecution under Subsection (c) that the meeting did not occur.

Id. § 33.021(d); see also Tuazon v. State, 661 S.W.3d 178, 183 (Tex. App.—Dallas

2023, no pet.) (stating that the pertinent inquiry is whether the defendant solicited

the victim online and whether, at the time he did so, he intended that the victim

engage in sexual contact, sexual intercourse, or deviate sexual intercourse).

A person acts knowingly with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his conduct

or that the circumstances exist. See PENAL § 6.03(b). The offense is complete at the

time of the internet solicitation rather than at the time of any later meeting. See

Tuazon, 661 S.W.3d at 183 (citing Ex parte Lo, 424 S.W.3d 10, 23 (Tex. Crim. App.

2013) (orig. proceeding)).

A person acts with intent when it is his conscious objective or desire to engage

in the conduct or cause the result. See PENAL § 6.03(a). Direct evidence of intent is

not required—intent may be inferred from circumstantial evidence such as acts,

words, and the defendant’s conduct. See Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.

App. 2002). The offense is completed at the time of the solicitation, and the requisite

intent arises within the conduct of soliciting. See McLeod v. State, No. 14-22-00684-
–8–
CR, 2023 WL 8263659, at *7 (Tex. App.—Houston [14th Dist.] Nov. 30, 2023, pet.

ref'd) (citing Ex parte Lo, 424 S.W.3d at 22-23 and PENAL § 33.021(c)).

C. Evidence is Sufficient to Support Conviction

Neill’s indictment alleges that Neill solicited “Lee McMillian, a minor” in this

offense. Neill specifically disputes that sufficient evidence exists to show (1) that

McMillian is a “minor,” (2) that Neill knowingly solicited “a minor, Lee McMillian”

to meet Neill, and (3) that Neill had the intent that the “minor” would engage in

sexual contact, sexual intercourse, or deviate sexual intercourse with Neill.

1. The evidence is sufficient to show that McMillian, who was posing as
“Peyton,” met the statutory definition of minor.

In the first part of issue one, Neill argues the evidence is insufficient to prove

both “that Lee McMillian is a minor” and that he believed McMillian was younger

than 17 years old. He contends that McMillian, not “Peyton,” was the alleged minor

in this case and that McMillian’s testimony shows he had been a peace officer in

Texas since 2016 and thus was older than 17 years of age.

A minor is defined as either (A) an individual who is younger than 17 years

of age, or (B) an individual whom the actor believes to be younger than 17 years of

age. PENAL § 33.021(a)(1). Courts have noted that the statute is meant to permit

police officers to pose as minors to intercept sexual predators before they physically

appear at a meeting place to engage in sexual activity with a child. See Ex parte Lo,

424 S.W.3d at 17 (citing House Comm. on Criminal Jurisprudence, Bill Analysis,

Tex. H.B. 2228, 79th Leg., R.S. (2005)); see also McLeod, 2023 WL 8263659, at
–9–
*7; Ex parte Moy, 523 S.W.3d 830, 837 (Tex. App.—Houston [14th Dist.] 2017,

pet. ref'd). It is undisputed that Officer McMillian is older than 17 years of age.

However, under subsection (B) of the statute, the State had to prove only that Neill

believed McMillian, who was posing as a minor in an online undercover operation,

was younger than 17 years of age.

Next, Neil argues that the State did not produce direct evidence that he

believed McMillian’s claim that he was 15 years old. However, at trial the State

produced the following evidence:

 After Peyton told Neill she was “almost 16,” he asked “[y]ou have
somewhere nobody would know or find us or find out?”

 After Peyton told Neill that her friend was 15 years old, Neill asked
Peyton to ask her friend to join them for sex, but only if Peyton knew
“for a absolute fact that she can also keep a secret.”

 McMillian sent several photos of Peyton as a young girl in her mid-
teens;

 Peyton made references to being in school;

 Neill inquired about her sexual experience and asked if she and her
friend were virgins;

 Neill later asked Peyton to “[j]ust sneak out.”

Neill’s texts showed that he was concerned about secrecy and being reported to the

police, which a rational juror could view as evidence of his belief that he was

engaging in criminal behavior with a minor.

In addition, the jury was free to disregard defendant’s self-serving statements

that Peyton looked older than 15 or that he was worried that she may be a police

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officer or turn him in. See Perales v. State, 622 S.W.3d 575, 582 (Tex. App.—

Houston [14th Dist.] 2021, pet. ref'd). A challenge to the sufficiency of the evidence

on the basis that these statements demonstrate a conflict of evidence is an attack on

the credibility and weight assigned to the evidence by the jury. We are required to

defer to the jury’s credibility and weight determinations. See Dunham, 666 S.W.3d

at 482.

After reviewing the evidence, we conclude that a rational jury could have

found that Neill believed McMillian, posing as Peyton, was under 17 years of age.

See Perales, 622 S.W.3d at 580–82 (concluding evidence of defendant’s belief that

police officer posing as 16-year-old girl was sufficient when defendant received

photos of the officer as a 14 and 16-year old girl, repeatedly asked her if he was

speaking with police, offered to pick her up from school and asked her to skip school,

and discussed how to get together without her mother finding out); Beal v. State, No.

11-22-00269-CR, 2024 WL 2335893, at *3 (Tex. App.—Eastland May 23, 2024, no

pet h.) (mem. op., not designated for publication) (determining that a rational jury

could logically infer that the defendant knew he was soliciting a minor when the

messages showed that he lied about his age to make himself younger and when the

purported minor told him her age, detailed her sexual inexperience, stated she would

have to sneak out, and disclosed that her mother monitored her phone). Accordingly,

we conclude the evidence is sufficient to support Neill’s conviction. We overrule

the first part of issue one.

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2. The evidence was sufficient to show that Neill knowingly solicited Peyton
to meet.

In the second part of issue one, Neill argues that the evidence is insufficient

to prove he knowingly solicited McMillian to meet. He asserts that the State must

prove that Neill was aware that he was urgently pleading with McMillian to meet

him at a particular time and place. He argues that he never requested or urgently

pleaded for Peyton to meet him at a particular time and place, that Peyton offered to

meet him at the park but that he did not initiate the offer, and that Neill declined to

meet her at the park because she would not video chat with him. He contends that,

even though he later texted Peyton, “still want to meet[?],” they never settled on a

time and place.

Despite Neill’s choice of specific dictionary definitions for the words “solicit”

and “meet,” he cites no authority supporting his argument that the statute requires

urgent pleading by the perpetrator to meet at a specific time and place in order to

commit the offense. “Meet” and “solicit” are not defined in the statute. See PENAL

§§ 33.01, 33.021. When analyzing sufficiency of the evidence, undefined statutory

terms “are to be understood as ordinary usage allows, and jurors may thus freely

read statutory language to have any meaning which is acceptable in common

parlance.” Dunham, 666 S.W.3d at 484 (quoting Vernon v. State, 841 S.W.2d 407,

409 (Tex.Crim.App.1992)).

When determining the fair, objective meaning of an undefined statutory term,

the reviewing court may consult standard dictionaries. Id. One standard dictionary
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defines “meet” in this context to mean “to come into the presence of for the first

time: to be introduced to or become acquainted with,” “to come together with

especially at a particular time and place,” and “to come into contact or conjunction

with: join.” Meet, Merriam-Webster.com, http://merriam-

webster.com/dictionary/meet (last visited July 26, 2024). The word “solicit” means

“to make petition to: entreat,” “to approach with a request or plea,” “to urge

(something, such as one’s cause) strongly,” “to entice or lure especially into evil,”

“to proposition someone especially as or in the character of a prostitute,” and “to try

to obtain by usually urgent requests or pleas.” Solicit, Merriam-Webster.com,

http://merriam-webster.com/dictionary/solicit (last visited July 26, 2024). The jury

charge did not define “solicit,” and appellant does not identify any source showing

that common parlance requires that a solicitation be urgent or that a meeting can

only occur at a specific time expressly agreed in advance.

The record shows that Neill solicited Peyton to meet after she stated that she

was only 15 years old and that he wanted to keep their meeting secret after learning

her age. Peyton suggested the original meeting place at the park, which she said was

walking distance from her aunt’s house, and sent Neill the address. Evidence of a

knowing solicitation to meet does not require that the initial location suggestion be

the defendant’s idea. See Tuazon, 661 S.W.3d at 184 (determining that evidence of

defendant’s intent to meet was sufficient regardless of whether it was minor’s initial

idea to meet when other messages demonstrated his intent). Although Neill did not

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meet Peyton at the first proposed meeting at the park, Peyton remained interested in

meeting and Neill continued with his online texting. At one point, he stated, “was

on my way was wanting to put my dick inside you,” and the following day texted,

“Hey I’m headed your way if I can come over I can [sic] already headed that

direction.”

Neill’s other messages provide additional evidence of his solicitation to meet

Peyton, stating:

 You have somewhere nobody would know or find us or find out?

 I was asking If you are a virgin and she is a virgin and to go ahead
and ask you know she won’t tell anybody if she wants to meet you
and y’all do anything and everything sexually to each other as well
as share me

 “Still want to meet” followed by “?????”

 Just sneak out and I will . . . .

The evidence only needs to show that Neill asked a minor to meet him to

engage in sexual contact, sexual intercourse, or deviate sexual intercourse—neither

a sense of urgency nor a specific time and place is necessarily required. See Ex Parte

Victorick, 453 S.W.3d 5, 15 (Tex. App.—Beaumont 2014) (pet. ref’d) (concluding

that the jury, using the ordinary understanding of the word “meet,” could find that

defendant solicited minor to meet him where they were allegedly in the same

building when the texts were sent). Moreover, Neill already had the address for the

park near the house where Peyton’s aunt resided, and Peyton could walk to the

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location when available. We conclude that a reasonable jury could have found that

Neill knowingly solicited Peyton to meet. We overrule the second part of issue one.

3. The evidence was sufficient to prove that Neil intended to solicit Peyton
to engage in sexual contact, sexual intercourse, or deviate sexual
intercourse with him.

In the third part of issue one, Neill argues the evidence is insufficient to show

that he intended to engage in sexual activity with McMillian (posing as Peyton) at

the time he sent the messages. The State must prove that Neill had the “requisite

intent at the time of the solicitation.” See Tuazon, 661 S.W.3d at 184. Although

Neill concedes that he sent multiple sexually explicit messages and described

multiple sex acts in those messages, he argues that the evidence does not show he

had the requisite intent because he did not do so while soliciting Peyton to meet him

at a particular time and place. We have already rejected the argument that a specific

time and place must necessarily be specified in the message on the facts in this case.

We consider only whether a rational jury could have found from the evidence that

Neill intended to engage in sexual behavior with Peyton at the time of his solicitation

of her.

In texts made after he learned that Peyton had a friend, Neill messaged, “I can

finger one while I eat or even have my dick in the other” and “But question would

be if she would want to share a dick to suck and both take turns taking it inside you

plus play and eat and finger each other and whatever else.” About 45 minutes later,

he made the following solicitation:

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I was asking if you are a virgin and if she is a virgin and to go ahead
and ask you know she won’t tell anybody if she wants to meet you and
y’all both meet me tonight and y’all do anything and everything
sexually to each other as well as share me.

This request indicates his intent to meet Peyton for sexual acts and his proposal that

they meet that evening. Further, when Peyton indicated that her friend was going to

join them, Neill further clarified his intent to have sexual intercourse at the meeting

being discussed by stating, “And she’s okay with sex like y’all are both going to let

me inside you right?”

After the first meeting failed to occur, Neill texted Peyton again later that night

asking if she still wanted to meet. When she said they would have to wait until the

next day, he responded:

Just sneak out and I will lick all over your pussy slowly put a finger in
you while you have my dick in your mouth sucking it moving your
tongue up and down until I have you soaking wet then as I pulled my
finger out of you I’ll pull my dick out of your mouth and I’ll put it up
for your clit rub your wet little pussy with the head of my dick and I’ll
slowly start to press it against you till it’s slots inside until you’re taking
every inch.

This also demonstrates both his request to meet (“just sneak out”) and his sexual

intent.

After reviewing the evidence, we conclude that a rational jury could have

found Neill intended that Peyton would engage in sexual contact, sexual intercourse,

or deviate sexual intercourse with him or another person. We overrule the third part

of issue one.

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D. Conclusion—Sufficiency of the Evidence

We conclude that a rational jury could have found that Neill committed the

offence beyond a reasonable doubt. Accordingly, we conclude the evidence is

sufficient to support Neill’s conviction for online solicitation of a minor. Issue one

is overruled.

III. Jury Charge Error Did Not Cause Egregious Harm to Neill

In his second issue, Neill argues that he suffered egregious harm because the

trial court failed to include the definition of “intent” in the jury charge. The State

agrees that the omission was erroneous but disputes that the error caused Neill

egregious harm. As a result, we will analyze only whether Neill suffered egregious

harm.

A. Standard of Review

All alleged jury-charge error must be considered on appellate review

regardless of whether it was preserved in the trial court. Kirsch v. State, 357 S.W.3d

645, 649 (Tex. Crim. App. 2012). A review of alleged jury-charge error involves

two steps: First, the reviewing court must determine whether the charge is

erroneous. Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). If it is,

then the court must decide whether the appellant was harmed by the erroneous

charge. Id.

There are two standards of review for jury-charge-error claims. Id. (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). If a

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defendant timely objects to alleged jury-charge error, the record need only show

“some harm” to obtain relief. Id. If there was not a timely objection, the record

must show “egregious harm.” Id. Harm is assessed in light of (1) the entire jury

charge, (2) the state of the evidence, including the contested issues and weight of the

probative evidence, (3) the argument of counsel, and (4) any other relevant

information revealed by the record of the trial as a whole. Id. (citing Almanza, 686

S.W.2d at 171).

An erroneous jury charge is egregiously harmful if it affects the very basis of

the case, deprives the accused of a valuable right, or vitally affects a defensive

theory. Id. A finding of egregious harm must be based on actual harm rather than

theoretical harm. Id. Egregious harm is a difficult standard to meet, and the analysis

is a fact-specific one. Id. Neither party bears the burden to show harm. Id.

B. The omission of the definition of intent in the jury charge did not
egregiously harm Neill.

Because Neill did not object to the omission of an intent definition in the jury

charge, we review the record for egregious harm. See id.

1. Entire Jury Charge

The first factor involves analyzing the entire jury charge to determine whether

it accurately informed the jury that, to find Neill guilty, he must have solicited

Peyton with the intent that she would engage in sexual conduct with Neill. When a

statutory definition is not included in the charge, it is assumed the jury would use

the term's commonly understood meaning in its deliberations. Olveda v. State, 650
–18–
S.W.2d 408, 409 (Tex.Crim.App.1983); Messner v. State, No. 05-07-00273-CR,

2007 WL 4216148, at *5 (Tex. App.—Dallas Nov. 30, 2007, pet ref’d) (not

designated for publication).

Acknowledging case law holding that the statutory and common definitions

of intent are not substantially different, Neill concedes that the entire-jury-charge

factor would weigh against a finding of egregious harm. See Nel v. State, No. 08-

17-00075-CR, 2019 WL 257882, at *4 (Tex. App.—El Paso Jan. 18, 2019, no pet.)

(not designated for publication). In this case, the jury charge defined the offense of

online solicitation of a minor, stating that a person commits the offense if he

knowingly solicits a minor to meet “with the intent the minor will engage in sexual

contact, sexual intercourse, or deviate sexual intercourse” with the actor or another

person. The jury charge’s application section also required the jury to make this

intent finding with respect to Neill’s actions. Accordingly, we conclude that the first

factor weighs against a determination of egregious harm.

2. State of the Evidence

Second, we consider whether the state of the evidence regarding Neill’s intent

to engage in the sexual behavior weighs in favor of an egregious-harm finding. Neill

argues that the evidence of his intent is contradictory. He contends that the evidence

does not show that he followed through with his communications by actually

meeting with Peyton and that this is circumstantial evidence of his lack of intent.

However, the record contains evidence that:

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 After the park meeting did not take place and Peyton purportedly
returned to her aunt’s house, Neill messaged that he “was on my
way was wanting to put my dick inside you.”

 After Peyton told him they would have to meet the next day,
Neill told her to “[j]ust sneak out.”

 The next day, Neill messaged Peyton, “Hey I’m headed your way
if I can come over I can [sic] already headed that direction.”

 Another time, Neill texted, “I’m just not trying to go to prison
but definitely want to fuck you.”

These statements, in addition to the other evidence in the record such as Neill’s

explicit text messages about the sexual conduct he wanted to engage in with Peyton

and her friend, are evidence of Neill’s intent to engage in sexual behavior.

Neill also argues that his concern relating to the possibility that Peyton was a

police officer or that he was being set up also indicates his lack of intent. After

expressing concern, however, the record shows that he continued to solicit Peyton.

The offense is complete at the time of the internet solicitation. See Tuazon, 661

S.W.3d at 183.

Neill’s messages thus provided adequate evidence of his intent to engage in

sexual behavior with Peyton. We conclude the state of the evidence made it less

likely that the jury charge caused Neill actual harm. Accordingly, this factor weighs

against finding egregious harm.

3. Arguments of Counsel

Next, we consider whether any arguments made by the State or Neill

exacerbated or ameliorated the error in the charge. Neill argues that his attorney

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focused on (1) whether there was an agreement to meet, and (2) whether Neill

intended to engage in sexual conduct with Peyton. With respect to intent, defense

counsel argued that the officers manufactured an environment for crime to inflame

the jury. However, defense counsel’s closing argument did not focus significantly

on Neill’s intent. The State, during its closing, re-read some of the texts to the jury

and recited evidence to show that the elements of the crime had been proved, stating

that Neill was “trying to meet up to have sex.” Both parties referred, directly or

indirectly, to Neill’s intent in their arguments; however, a rational jury could have

understood these arguments based on a common sense meaning of intent even if

undefined. We conclude that the lack of a definition of intent did not cause

significant harm to Neill. Accordingly, this factor weighs against finding egregious

harm.

4. Other Relevant Information

Finally, we consider any other relevant information. Neill argues that other

relevant information was harmful to Neill. He cites the following interactions

between the State and venire members during voir dire that focused on intent without

discussing its meaning:

 Venireperson explained that a person may have the “intent of having it
with a child” even where there is only an adult posing as a child;

 Prosecutor discussed ways she might prove intent;

 One venireperson said she would convict if there was evidence of
intent;

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 A venireperson stated that he thought “intent” applied to “having that
conversation or solicit[ing] that sexual act []; and

 Another venireperson stated that Neill would not be in court if he
“actually has no intent of doing anything.”

Neill argues that these interactions demonstrate that the jurors failed to understand

the meaning of intent and that no one defined it for them. We discern nothing in the

record indicating that the jury failed to understand the definition of intent. We

conclude that this factor weighs against a finding of egregious harm.

C. Conclusion—Harm Analysis

Weighing these Almanza factors, we conclude that the omission of the

definition of intent from the jury charge did not vitally affect a defensive theory that

Neil did not have the requisite intent and did not cause egregious harm to Neill. We

overrule his second issue.

IV. Amended Judgment Should Be Reformed to Indicate that Victim’s Age
is “N/A”

The amended judgment in this case indicates that the age of the victim was 15

years of age. Neill argues that this Court should reform the judgment to reflect that

the age of the victim was over 18 years of age or otherwise direct the trial court to

make a finding as to McMillian’s age at the time of the offense. The State agrees

that the judgment should be modified but argues that the age of the victim should be

noted as “N/A” because there is no victim in this case.

Texas law requires that a judgment contain a “statement of the age of the

victim of the offense” for reportable convictions requiring sex-offender registration.
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See TEX. CODE CRIM. PROC. ANN. art 42.01, §1(27). Online solicitation is a

reportable conviction. Id. art 62.001(5)(J). Words not defined in a statute are used

in their ordinary and common sense. Avery v. State, 359 S.W.3d 230, 237 (Tex.

Crim. App. 2012). Victim is defined as “(1) one that is acted on and usually

adversely affected by a force or agent, such as (a) (1) one that is injured, destroyed,

or sacrificed . . . , (2) one that is subject to oppression, hardship or mistreatment, (b)

one that is tricked or duped.” Victim, Merriam-Webster.com, http://merriam-

webster.com/dictionary/victim (last visited July 22, 2024).

In this case, McMillian satisfied the statutory definition of “minor” because

the jury found that he was an individual whom Neill believed to be fifteen years old.

See PENAL § 33.021(a)(1)(B). Because there was no actual minor “victim” in this

case who was harmed by Neill’s conduct under the ordinary and common sense

meaning of the word, we determine that the requirement to state the age of the victim

under article 42.01 does not apply. See CRIM. PROC. art 42.01.

This Court has the power to modify a judgment to speak the truth when it has

the necessary information to do so. See TEX. R. APP. P. 43.2(b); French v. State,

830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting the reasoning in Asberry v.

State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc)).

Accordingly, we reform the amended judgment to substitute “N/A” for “15” in the

statement of the victim’s age at the time of the offense.

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V. Conclusion

We conclude that the evidence was sufficient to support Neill’s conviction

and that the omission of the intent definition from the jury charge did not cause

egregious harm to Neill. We further conclude that the trial court’s amended

judgment is modified to substitute “N/A” for “15” as the age of the victim at the time

of the offense.

As modified, we affirm the trial court’s amended judgment.

The trial court is directed to prepare a reformed judgment that reflects the

modifications made in this Court’s opinion and judgment in this case. See Shumate

v State, 649 S.W.3d 240, 244–45 (Tex. App.—Dallas 2021, no pet.).

/Emily A. Miskel/
EMILY A. MISKEL
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2
230277F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

DILLION ALAN NEILL, Appellant On Appeal from the 416th Judicial
District Court, Collin County, Texas
No. 05-23-00277-CR V. Trial Court Cause No. 416-82674-
2022.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Miskel.
Justices Nowell and Kennedy
participating.

Based on the Court’s opinion of this date, the amended judgment of the trial
court is MODIFIED as follows:

Substitute “N/A” for “15” as the age of the victim at the time of the
offense.

As REFORMED, the amended judgment is AFFIRMED.

Judgment entered this 8th day of August 2024.

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