Alternatively, he argues that if we conclude the indictment extended to the G-chat communications, the State also had the burden to show those communications were sexually explicit. App.1991) (holding that “although the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive”). He maintains that because the indictment did not charge him with communicating with E. through text messages or over G-chat, to affirm his conviction we must find that his Facebook communications alone were sexually explicit.
Coe argues in the alternative that section 33.021(c) is also an unconstitutional infringement of his First Amendment right to free speech, specifically, his right to fantasy speech. A party must challenge the constitutionality of a statute as applied in the trial court to preserve error. Likewise, a party may not raise for the first time on appeal a facial challenge to the constitutionality of a statute. In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The jury is the sole judge of the credibility and weight to be attached to the testimony of witnesses. However, the caption of an indictment is not part of the charging instrument. An offense under subsection (c) is a second-degree felony. B., a minor, would engage in sexual contact and sexual intercourse with the defendant knowingly solicit over the [I]nternet and through a commercial online service (Facebook) the said E. to meet the defendant[.]” As Coe notes, the caption of the indictment classified Coe's offense as a third-degree felony. Coe's motion for new trial and motion in arrest of judgment were overruled by operation of law. Coe's motion for new trial did not argue the constitutionality of section 33.021. The indictment alleged that Coe “did then and there, with the intent that E. Constitutional challenges to a statute are generally forfeited by failure to object at trial.