Full Opinion

In the Court of Criminal Appeals of Texas ════════════ No. PD-1052-24 ════════════ SHANE BYRON TRACY, Appellant v. THE STATE OF TEXAS ═══════════════════════════════════════ On State’s Petition for Discretionary Review From the Seventh Court of Appeals Hill County ═══════════════════════════════════════ YEARY, J., filed a dissenting opinion. Believing that the evidence is legally sufficient to convict Appellant of the greater offense, not just the attempted offense, I disagree with the Court’s disposition of remanding the cause for a new punishment hearing. The offense of Sexual Performance of a Child is TRACY – 2 committed when the actor, among other things, “induces a child . . . to engage in sexual conduct[.]” TEX. PENAL CODE § 43.25(b). “Sexual conduct” includes “masturbation[.]” Id. § (a)(2). A jury would be entitled to give the word “masturbation,” which is not defined by statute, whatever meaning or scope it might have in ordinary parlance. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Ordinary parlance does not rule out one person’s stimulation of another person’s genitalia. See AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, at 805 (1975) (defining “masturbation” simply as “[e]xcitation of the genital organs, usually to orgasm, by means other than sexual intercourse”). The jury could have rationally concluded that the complaining witness here was “induced” to “engage” in masturbation when she submitted without active resistance for an extended period of time to Appellant’s manual stimulation of her genitalia. On that basis, I would reverse the court of appeals’ judgment and reinstate the trial court’s judgment of conviction for the greater offense of sexual performance of a child. Because the Court does not, I respectfully dissent. FILED: September 17, 2026 PUBLISH