Description: The complainant, M.W., a sixteen-year-old girl, texted with appellant after
meeting on an online dating website. M.W. informed appellant that she was a senior
in high school. Through text messages and social media, appellant recruited M.W.
to prostitute herself and have him as her pimp. M.W., a prior victim of human
trafficking, told appellant that she had done escorting before. M.W. advised him that
she had “tricks” scheduled for the next day, and appellant offered to drive her to
meet them.
The next day appellant drove her to her appointment, but M.W. had lied about
the nature of the arrangement; she was not actually meeting to prostitute herself.
Appellant picked her up and, when he discovered she was under eighteen years old,
he dropped her off at an apartment complex. Appellant eventually returned and
forcefully dragged her back to his car, hitting her several times in the face and
grabbing her by the hair.
In the meantime, appellant had posted an advertisement on Backpage.com,
with photographs of M.W. and sexually explicit language. Appellant communicated
with multiple potential clients via text message and ultimately arranged a meeting
3
for M.W. to engage in prostitution with a man who turned out to be an undercover
police officer, M. Ryans. An unidentified woman drove M.W. and appellant to the
hotel, where appellant gave M.W. his phone and told her to answer it after she was
done, and he advised M.W. to charge the “trick” to have sex and to bring appellant
the money afterwards.
M.W. met Officer Ryans, agreed to have sex with him, and confirmed the fee
amount. Ryans then arrested M.W. and seized appellant’s cell phone, which M.W.
had in her possession. M.W. identified appellant as her pimp. After being located by
police, appellant was arrested and charged with compelling prostitution.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends that the evidence is legally insufficient
because it fails to demonstrate his intent to cause M.W., a sixteen-year-old girl, to
commit the underlying offense of prostitution.
Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–
89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
4
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id. On appeal we may not re-evaluate the weight and credibility of the
evidence and thereby substitute our own judgment for that of the fact finder.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the
evidence, circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to establish
guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Appellant argues that the evidence of his guilt is (1) legally insufficient
because the State failed to prove that the appellant caused M.W. to commit the
underlying offense of prostitution and (2) factually insufficient because no rational
jury could have found that M.W. actually committed the offense of prostitution.
However, the “Jackson v. Virginia legal-sufficiency standard is the only standard
that a reviewing court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
5
2010). In fact, the Court of Criminal Appeals expressly “overrule[d] Clewis”
because “the Clewis factual-sufficiency standard is ‘barely distinguishable’ from the
Jackson v. Virginia legal-sufficiency standard.” Brooks, 323 S.W.3d at 894-95.
Accordingly, we disregard the factual sufficiency argument and focus solely on legal
sufficiency.
Analysis
A person commits the offense of compelling prostitution “if the person
knowingly causes by any means a child younger than 18 years to commit
prostitution, regardless of whether the actor knows the age of the child at the time
the actor commits the offense.” TEX. PENAL CODE ANN. § 43.05(a)(2) (West 2016).
“[O]ne who provides opportunity for a willing minor to engage in prostitution and
influences, persuades or prevails upon her to do so has . . . caused the prostitution .
. . .” Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App.—Austin 1995, no pet.)
(internal quotation omitted). Appellant clearly provided the opportunity for M.W. to
engage in prostitution. He recruited her through texts and online conversations, set
up her online advertisement, replied to potential customers’ texts, handed her the
phone for vocal conversations with potential customers, and he drove her to the
location where the prostitution was set to occur.
Appellant argues that there was no intent on the part of appellant to cause
M.W. to commit the offense of prostitution because she was already actively
6
engaged in the behavior at the time of their meeting. However, there is nothing in
the record showing that M.W. was currently engaging in prostitution. She had
engaged in prostitution previously, but nothing in the record proves she was
engaging in the act at the time appellant contacted her. Furthermore, nothing in the
law states that one cannot be guilty of compelling prostitution if the person
compelled to prostitute had ever previously engaged in prostitution—only that one
is guilty of compelling prostitution “if the person knowingly causes by any means a
child younger than 18 years to commit prostitution, regardless of whether the actor
knows the age of the child at the time the actor commits the offense.” TEX. PENAL
CODE ANN. § 43.05(a)(2).
Appellant also argues that because he dropped M.W. off at a relative’s
apartment after finding out that she was under eighteen, he cannot be convicted of
compelling prostitution. However, knowledge that M.W. was underage is not
required and, in fact, the statute expressly states one is guilty “regardless of whether
the actor knows the age of the child at the time the actor commits the offense.” Id.
Further, even if knowledge of her age were an issue, appellant later set up the
meeting with Ryans and drove M.W. to the meeting, even though he knew by then
that she was only sixteen years old.
Appellant also argues that the evidence is not sufficient to prove that M.W.
committed prostitution. “However, the actual commission of the offense of
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prostitution is not a prerequisite to the commission of the offense of compelling
prostitution.” Waggoner, 897 S.W.2d at 513, (citing Davis v. State, 635 S.W.2d 737,
739 (Tex. Crim. App. 1982); see also Johnson v. State, 01-09-00799-CR, 2011 WL
494813, at *2 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, pet. ref’d.) (mem. op.,
not designated for publication). Furthermore, no sexual act is needed to commit the
offense of prostitution—“[a] person commits an offense [of prostitution] if, in return
for receipt of a fee, the person knowingly offers to engage, agrees to engage, or
engages in sexual conduct. TEX. PENAL CODE ANN. § 43.02(a)(1) (West 2016). The
record indicates that appellant set up an online advertisement indicating a price and
filled with sexually explicit language, arranged for M.W. to engage in prostitution
with Officer Ryans, drove M.W. to the hotel, and that M.W., when she met with
Officer Ryans, agreed to have sex with him and confirmed the negotiated fee—the
offense of prostitution was committed at that point, and no actual engagement in
sexual activity was needed.
Based on the evidence, a rational jury could have found the essential elements
of the offense beyond a reasonable doubt. See Moreno, 755 S.W.2d at 867.
Accordingly, we overrule appellant’s first issue.
8
JURY ARGUMENT
In his second issue, appellant complains that the trial court erred in permitting
the State’s jury argument, in which the State allegedly sought to introduce evidence
from outside the record.
Standard of Review
We review a trial court’s ruling on an objection to improper jury argument for
an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App.
2004). Permissible jury argument falls into four distinct and limited categories: (1)
summary of the evidence; (2) reasonable deductions from the evidence; (3) response
to opposing counsel’s argument; or (4) a plea for law enforcement. Brown v.
State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). We examine alleged improper
argument in light of the facts adduced at trial and in the context of the entire
argument. McGee v. State, 774 S.W.2d 229, 239 (Tex. Crim. App. 1989).
Even if an argument is improper, it will not constitute grounds for reversal
unless the statements to the jury injected new and harmful facts into the case, or were
so extreme and manifestly improper that they deprived appellant of a fair and
impartial trial. Brown, 270 S.W.3d at 573 n.3; McGee, 774 S.W.2d at 238. “In
determining whether jury argument is extreme or manifestly improper, we look at
the entire record of final arguments to determine if there was a willful and calculated
effort on the part of the State to deprive appellant of a fair and impartial
9
trial.” Brown, 270 S.W.3d at 573 n.3. It “is not enough that the prosecutors’ remarks
were undesirable or even universally condemned. . . . The relevant question is
whether the prosecutors’ comments ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S.
168, 181, 106 S. Ct. 2464, 2471 (1986) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643, 94 S. Ct. 1868, 1870 (1974)).
Analysis
A party may not use closing arguments to insert before the jury matters that
are prejudicial to the accused and outside the record. Everett v. State, 707 S.W.2d
638, 641 (Tex. Crim. App. 1986); Gonzalez v. State, 115 S.W.3d 278, 284 (Tex.
App.—Corpus Christi–Edinburg 2003, pet. ref’d). Appellant claims that the State’s
arguments that M.W. did not have the password to appellant’s phone when
describing a pimp’s behavior were improper, outside the record, and prejudiced the
jury.
“To preserve error for appellate review, a party must make a timely and
specific objection or motion at trial, and there must be an adverse ruling by the trial
court.” Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); accord Tex.
R. App. P. 33.1(a). Here, the trial court advised the State to “stay in the record” both
times; there was no actual ruling on the appellant’s objection during the trial. “An
admonition to ‘stay in the record’ is not an adverse ruling.” Rogers v. State, 653
10
S.W.2d 122, 127 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d) (citing Graham
v. State, 566 S.W.2d 941, 954 (Tex. Crim. App. 1978)). Because there was no
adverse ruling, appellant has failed to preserve error regarding these jury arguments.
Appellant also argues that the trial court erred by failing to grant his motion
for mistrial in response to the State’s “shifting the burden of proof” in closing
arguments. The State argued the following:
“You know what? We have proven this case beyond a reasonable doubt. . . They don’t have to do a thing. They do not have to do a thing. And they get to throw something at you for you to consider. Is it reasonable? I offered an exhibit. He’s got the same subpoena power I do. He doesn’t have to do a thing. But don’t you know all these people in that apartment complex, if he walked away and said man. . .” Appellant’s counsel objected, it was sustained, and the jury was instructed to
disregard.
“[T]he prosecutor may comment on the defendant’s failure to produce witnesses and
evidence so long as the remark does not fault the defendant for exercising his right
not to testify.” Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim. App. 2000).
“[H]owever, if the language can reasonably be construed to refer to appellant’s
failure to produce evidence other than his own testimony, the comment is not
improper.” Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995).
Here, appellant’s counsel argued that when appellant discovered M.W. was
under 18, he “left her in an apartment” and walked away. The State’s comment was
in direct response to this assertion, and referenced how appellant could have
11
produced testimony from other witnesses at the apartment complex. Indeed, when
the prosecutor stated that defense counsel had “the same subpoena power I do,” he
was referencing defendant’s right to compel testimony from other witnesses.
Because the State’s argument was referencing appellant’s right to compel testimony
from other witnesses, and was not a comment on appellant’s own decision not to
testify, the argument was not improper.
Outcome: Accordingly, we overrule appellant’s second issue.
