Online Predator Stings: Why the ‘Actual Age’ of an Undercover Officer Won’t Save a Parent’s Custody Rights or Defensive Strategy
Robinson v. State, 01-24-00855-CR, February 19, 2026.
On appeal from the 351st District Court of Harris County
Synopsis
The First Court of Appeals held that a defendant is not entitled to a “within-three-years” statutory defense in an online solicitation of a minor case when the person solicited is an adult undercover officer. The court clarified that the defendant’s subjective belief regarding the minor’s age, rather than the officer’s actual age, dictates the applicability of the defense under Texas Penal Code § 33.021(e).
Relevance to Family Law
For family law litigators, this criminal crossover opinion is a significant tool for SAPCR and divorce proceedings involving allegations of sexual deviancy or online predatory behavior. Opposing counsel often attempts to minimize “sting” operation arrests by arguing that “no actual child was at risk” or that the parent was a victim of entrapment by an adult. Robinson reinforces the principle that the parent’s intent and belief—specifically their willingness to solicit someone they believe to be a child—is the legally operative fact. This holding assists family practitioners in arguing that such a parent poses a “clear and present danger” to children, regardless of the biological reality of the undercover investigator, thereby justifying supervised visitation or the complete termination of access.
Case Summary
Fact Summary
Shawn Paul Robinson, age 38, initiated contact with an online persona named “Abby,” whom he believed to be 15 years old. Over the course of five months, Robinson engaged in explicit sexual conversations, sent photos of his genitalia, and eventually arranged a physical meetup for the purpose of sexual intercourse. He arrived at the designated location with alcohol, condoms, and an overnight bag, only to be arrested by law enforcement. “Abby” was, in fact, an undercover investigator with the Internet Crimes Against Children Task Force. At trial, Robinson sought a jury instruction on the statutory defense found in Texas Penal Code § 33.021(e)(2), which provides a defense if the actor is not more than three years older than the minor and the minor consented. Robinson argued that since the undercover officer’s actual age was within three years of his own, he was entitled to the instruction. The trial court refused the instruction, and Robinson was convicted and sentenced to six years in prison.
Issues Decided
The central issue was whether a defendant is entitled to a jury instruction on the “within-three-years” statutory defense when the individual solicited was an adult undercover officer whose actual age happened to be within three years of the defendant’s age, despite the defendant believing the individual was a minor.
Rules Applied
The court looked primarily to Texas Penal Code § 33.021. Subsection (c) defines the offense of online solicitation of a minor, while subsection (a)(1) defines a “minor” as either an individual younger than 17 or “an individual whom the actor believes to be younger than 17 years of age.” The court also analyzed the statutory defense in § 33.021(e)(2), which requires two elements: (1) the actor is not more than three years older than the minor, and (2) the minor consented. Additionally, the court relied on the Court of Criminal Appeals’ holding in Sanchez v. State, which establishes that the “within-three-years” defense is only raised if the defendant believed he was within three years of the age of the persona portrayed by the officer.
Application
The court’s analysis focused on the “gravamen” of the offense: the act of solicitation itself coupled with the defendant’s intent. The court reasoned that because the statutory definition of a “minor” includes anyone the defendant believes is under 17, the defense must be viewed through that same lens. Robinson’s belief was uncontroverted—he believed “Abby” was 15 years old. At age 38, Robinson was 23 years older than the persona he intended to solicit. The court rejected the notion that the actual age of the undercover officer could “save” the defendant after the fact. The court noted that for the defense to be “raised by the evidence,” there must be some evidence that the defendant believed the victim’s age was within the three-year window. Because the record was devoid of any evidence that Robinson believed “Abby” was at least 35 years old (to fit the three-year gap), the instruction was properly denied.
Holding
The trial court did not err in refusing the requested jury instruction on the “within-three-years” statutory defense. The court held that the defense is unavailable where the defendant’s belief regarding the minor’s age places him outside the statutory age-gap protection, regardless of the undercover officer’s actual age.
The court affirmed the conviction, concluding that the statutory defense requires a focus on the “victim portrayed,” not the biological reality of the investigator.
Practical Application
Family law practitioners should use this case to block “technicality” arguments in custody disputes. When a parent is caught in a sting, their defense often revolves around the lack of an actual victim. Litigators can cite Robinson to show that Texas law treats the intent to solicit a child as the completed harm. In temporary orders hearings, this case supports a finding that the parent’s subjective intent to engage in a sexual relationship with a 15-year-old—even a fictitious one—constitutes a significant impairment to a child’s physical health or emotional development under TFC § 153.131.
Checklists
Defeating “No Actual Victim” Arguments in Custody
- Establish the Subjective Belief: Use the criminal discovery or the Robinson framework to show the parent believed they were talking to a minor.
- Quantify the Gap: Calculate the difference between the parent’s age and the age of the persona they believed they were soliciting.
- Preclude the “Technicality” Defense: Argue that if the criminal courts reject the “actual age of the officer” defense, the family court must also reject it when determining the “best interest of the child.”
Evidence Gathering for SAPCR Involving Online Solicitation
- Secure the “Chat Log” Data: Focus on the parent’s statements regarding the minor’s age (e.g., “I know you’re only 15, but…”).
- Obtain the Criminal Charge Sheets: Ensure the specific subsection of § 33.021 is identified to trigger the Robinson logic.
- Expert Testimony: Use a forensic psychologist to testify that the parent’s belief in the minor’s age is the primary indicator of future risk to children, matching the appellate court’s focus.
Citation
Robinson v. State, 01-24-00855-CR (Tex. App.—Houston [1st Dist.] Feb. 19, 2026, no pet. h.).
Full Opinion
Family Law Crossover
This ruling can be weaponized in a Texas divorce or custody case to destroy a “rehabilitation” narrative. If a parent argues they are “not a predator” because they only spoke to an adult officer, Robinson provides the legal counter-punch: Texas law identifies them as a predator based on their intent to harm a 15-year-old. From a strategic standpoint, this opinion helps family lawyers move for summary judgment on issues of conservatorship or to support an injunction against any unsupervised access, as it cements the fact that the “actual age” of the sting participant is a legal irrelevancy. In property divisions involving “fault” in the breakup of the marriage, this case also serves as a definitive marker of egregious conduct.
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