Opinion
NO. 14-18-00235-CR NO. 14-18-00236-CR
03-12-2020
ANDREW JAMES TURLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Cause Nos. 1488216 & 1488217
CONCURRING OPINION
This case presents simple questions and calls for simple answers. Instead of taking the clear-cut path to reversal, the majority forges new trails to reach that destination, leaving dangerous debris along the way. For the sake of future travelers (and Texas jurisprudence), the court should stay on the sure path and leave trail-blazing for a case that holds no other option.
The Sure Path
Regardless of the complainant's age, the evidence is legally insufficient to support appellant's convictions. Appellant stood charged by indictment with compelling prostitution of a child under the age of 18. The version of Section 43.05(a) of the Penal Code in effect at the time of the charged offenses provided that "[a] person commits an offense 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." "Prostitution" as used in this statute means "the offense defined in Section 43.02 [of the Penal Code]." At the time of the charged offenses, Subsections (a) and (b) of Section 43.02 provided:
See Act of May 31, 2009, 81st Leg., R.S., ch. 1002, § 9, 2009 Tex. Gen. Laws 2611, 2616, amended by Act of Apr. 7, 2011, 82d Leg., R.S., ch. 1, § 1.03, 2011 Tex. Gen. Laws 1, 3, amended by Act of May 30, 2015, 84th Leg., R.S., ch. 1273, § 2, Tex. Gen. Laws 4311, 4312 (amended 2017) (current version at Tex. Penal Code Ann. § 43.05(a))(hereinafter "2015 Version of Section 43.05").
2015 Version of Section 43.05.
(a) A person commits an offense if, in return for receipt of a fee, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in sexual conduct for hire.
(b) A person commits an offense if, based on the payment of a fee by the actor or another person on behalf of the actor, the person knowingly:
(1) offers to engage, agrees to engage, or engages in sexual conduct; or
(2) solicits another in a public place to engage with the actor in
(hereinafter "Subsection (a) or (b) of Section 43.02")sexual conduct for hire.
Act of May 30, 2015, 84th Leg., R.S., ch. 1273, § 1, Tex. Gen. Laws 4311, 4311-12 (amended 2017 & 2019) (current version at Tex. Penal Code Ann. § 43.02(a),(b)) (hereinafter "2015 Version of Section 43.02(a),(b)").
Subsection (d) of that same version of Section 43.02 provides that "[i]t is a defense for an offense under Subsection (a) that the actor engaged in the conduct that constitutes the offense because the actor was the victim of conduct that constitutes an offense under Section 20A.02 or 43.05." Under the plain text of the Penal Code version that applies to today's case, the elements of the offense of compelling prostitution under Section 43.05(a)(2) are (1) a person (2) knowingly (3) causes by any means (4) a child younger than 18 years (5) to commit prostitution. Under the unambiguous language of Sections 43.01(2) and 43.02, the fifth element — to commit prostitution — means "either (a) in return for receipt of a fee, to knowingly: (1) offer to engage, agree to engage, or engage in sexual conduct; or (2) solicit another in a public place to engage with the actor in sexual conduct for hire; or (b) based on the payment of a fee by the actor or another person on behalf of the actor, to knowingly: (1) offer to engage, agree to engage, or engage in sexual conduct; or (2) solicit another in a public place to engage with the actor in sexual conduct for hire" (hereinafter "Prostitution Conduct").
Act of May 31, 2009, 81st Leg., R.S., ch. 1002, § 8, 2009 Tex. Gen. Laws 2611, 2616, amended by Act of May 18, 2011, 82d Leg., R.S., ch. 514, § 4.02, 2011 Tex. Gen. Laws 1, 1276, 1281, amended by Act of May 23, 2013, 83d Leg., R.S., ch. 1252, § 15, 2013 Tex. Gen. Laws 3167, 3170, amended by Act of May 26, 2015, 84th Leg., R.S., ch. 332, § 14, 2015 Tex. Gen. Laws 1499, 1507, amended by Act of May 30, 2015, 84th Leg., R.S., ch. 1273, § 1, Tex. Gen. Laws 4311, 4311-12 (amended 2017 & 2019) (current version at Tex. Penal Code Ann. § 43.02(a),(b)) (hereinafter "2015 Version of Section 43.02(d)").
See 2015 Version of Section 43.05; 2015 Version of Section 43.02(a),(b); 2015 Version of Section 43.02(d); Raven v. State, 533 S.W.2d 773, 775 (Tex. Crim. App. 1976).
See Tex. Penal Code Ann. § 43.01(2); 2015 Version of Section 43.05; 2015 Version of Section 43.02(a),(b).
In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict. The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. We may not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Because the jury stands as "the sole judge of the credibility of the witnesses and of the strength of the evidence," the jury may choose to believe or disbelieve any portion of the witnesses' testimony. When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. So, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
Evidence at trial showed that appellant gave the complainant — his young daughter — a "sleep aid" and told the undercover police officer to come over. After meeting the officer in a parking lot, appellant took him to a bedroom in an apartment where the child was sleeping on a bed, wearing only a pajama top. No evidence and no reasonable inferences from any evidence at trial showed (1) that in return for receipt of a fee, the complainant offered to engage, agreed to engage, or engaged in sexual conduct; or (2) that the complainant solicited another in a public place to engage with the complainant in sexual conduct for hire; or (3) that based on the payment of a fee by the complainant or another person on the complainant's behalf, the complainant offered to engage, agreed to engage, or engaged in sexual conduct, or (4) that the complainant solicited another in a public place to engage with the complainant in sexual conduct for hire. Simply put, the record contains no evidence of Prostitution Conduct.
See 2015 Version of Section 43.05; 2015 Version of Section 43.02(a),(b); 2015 Version of Section 43.02(d).
Regardless of the complainant's age or status as a child, the evidence cannot withstand a legal-sufficiency challenge. Viewing the evidence in the light most favorable to the verdict, no rational trier of fact could have found beyond a reasonable doubt that the complainant engaged in Prostitution Conduct. Because Prostitution Conduct is an essential element of the compelling-prostitution offense, this court must hold the evidence legally insufficient to support appellant's conviction for compelling prostitution. Appellant has asserted that the evidence is legally insufficient on this basis, and contrary to the majority's conclusion, nothing in the law mandates that this court inquire into whether the complainant's age precluded her as a matter of law from committing prostitution.
See Tex. Penal Code Ann. § 43.01(2); 2015 Version of Section 43.05; 2015 Version of Section 43.02(a),(b); 2015 Version of Section 43.02(d); Liverman v. State, 470 S.W.3d 831, 836-39 (Tex. Crim. App. 2015).
Appellant's conviction for trafficking a child was based on the complainant being a victim of conduct prohibited by Section 43.05 — the compelling-prostitution statute. Whatever the complainant's age, no rational trier of fact could have found that appellant committed the trafficking-a-child offense.
Act of May 22, 2003, 78th Leg., R.S., ch. 641, § 2, 2003 Tex. Gen. Laws 2045-46, amended by Act of May 23, 2007, 80th Leg., R.S., ch. 849, § 5, 2007 Tex. Gen. Laws 1776, 1778, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 258, § 16.02, 2007 Tex. Gen. Laws 367, 392-93, amended by Act of May 31, 2009, 81st Leg., R.S., ch. 1002, § 7, 2009 Tex. Gen. Laws 2611, 2615-16, amended by Act of Apr. 7, 2011, 82d Leg., R.S., ch. 1, § 1.02, 2011 Tex. Gen. Laws 1, 2-3 (amended 2017 & 2019) (current version at Tex. Penal Code. Ann. § 20A.02)
See 2015 Version of Section 43.05; 2015 Version of Section 43.02(a),(b); 2015 Version of Section 43.02(d); Liverman, 470 S.W.3d at 836-39.
For these reasons, this court should reverse and render an acquittal as to each charged offense. Though the majority reaches this judgment, the majority goes places the court need not and should not tread.
The Court's Unnecessary Journey
In unpacking today's issues, the majority engages in a lengthy analysis to determine whether the complainant may be convicted of prostitution, whether a juvenile court may find that the complainant engaged in delinquent conduct based on the complainant's having engaged in prostitution, and whether the complainant, as a matter of law, can commit the offense of prostitution. En route the majority follows the reasoning in In re B.W., a juvenile-justice case in which the Supreme Court of Texas concluded, as a matter of law, that a child under age 14 lacks the capacity to consent to sex and may not be adjudicated by a juvenile court as an offender who engaged in delinquent conduct based on committing the offense of prostitution. The In re B.W. court did not, as the majority asserts, conclude unequivocally "that children under 14 cannot knowingly agree to engage in sexual conduct for a fee and therefore cannot commit prostitution." Finding the In re B.W. analysis persuasive, the majority relies on it to conclude that regardless of whether a particular child younger than 14 years consented to sexual conduct as a matter of fact, no child younger than 14 years, as a matter of law, can consent to sexual conduct, and so, as a matter of law, no child younger than 14 years can commit prostitution or be a victim of a compelling-prostitution offense.
Ante at 2-6, 10-20. The majority states several times that the trial court instructed the jury that children under 14 lack the capacity to consent to sexual activity and may not be charged with prostitution. But we are to review the sufficiency of the evidence based on the hypothetically correct jury charge, not on the charge actually given. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Thus, the majority may not rely on this instruction and still must determine if this statement of the law is correct and thus part of the hypothetically correct jury charge.
Ante at 5,18-19.
See In re B.W., 313 S.W.3d 818, 826 (Tex. 2010).
Ante at 5.
See ante at 18-19.
The supreme court's decision in In re B.W. is not binding on this court's adjudication of today's criminal appeals, and this court has never before addressed whether the In re B.W. majority's interpretation of the Penal Code should be applied in a criminal case. Though the majority cites a juvenile-justice case in which this court applied In re B.W., that precedent does not require this court to apply In re B.W. in a criminal appeal. Texas has two high courts. The Court of Criminal Appeals need not follow the supreme court's decision in In re B.W.
See Olivo v. State, 918 S.W.2d 519, 524-25 (Tex. Crim. App. 1996); Commissioners' Court of Nolan Cnty. v. Beall, 81 S.W. 526, 528 (Tex. 1904).
See ante at 5-6, n.5. (citing In the Matter of T.V.T., —S.W.3d—, —, No. 14-18-00807-CV, 2019 WL 6974971 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no pet. h.)); Olivo, 918 S.W.2d at 524-25; Commissioners' Court of Nolan Cnty., 81 S.W. at 528.
See Olivo, 918 S.W.2d at 524-25; Commissioners' Court of Nolan Cnty., 81 S.W. at 528.
If faced with the issue, the Court of Criminal Appeals might well take a different course or opt for a different method of statutory interpretation, one rooted in textualism and judicial restraint. The Court of Criminal Appeals might disagree with the In re B.W. majority and agree with the In re B.W. dissenting opinion, especially given the shower of legislative action in the wake of In re B.W.
In re B.W., 313 S.W.3d at 820-26; id. at 826-36 (Wainwright, J., dissenting) (stating, among other things, that "[t]he language of the prostitution statute includes thirteen-year-olds, and the Juvenile Justice Code makes them subject to juvenile delinquency proceedings for committing that offense; and neither the Court nor B.W. point to any language in the Juvenile Justice or Penal Codes that changes the prostitution statute to mean something other than what it says.").
The year after the supreme court issued In re B.W., our lawmakers stepped into action with the apparent purpose of abrogating the supreme court's holding in that case. Without a single "nay" vote, the Texas Legislature amended five statutes to state that a child younger than 14 years may be the victim of a compelling-prostitution offense, and thus may commit the offense of prostitution. The analysis the majority delivers today (1) contradicts three statutes stating that a victim of a compelling-prostitution offense may be younger than 14 years of age, (2) goes against one statute in which the Legislature states that a victim of a compelling-prostitution offense may be younger than 13 years of age, and (3) clashes with yet another statute in which the Legislature states that a victim of a compelling-prostitution offense may be younger than 12 years of age.
See Act of May 17, 2011, 82nd Leg., R.S., ch. 515, § 2.01, 2011 Tex. Sess. Law Serv. 1276, 1277-78; Act of April 7, 2011, 82nd Leg., R.S., ch. 1, §§ 2.06, 2.07, 4.01, 6.04, 2011 Tex. Sess. Law Serv. 1, 5, 9, 15-16.
See Act of May 17, 2011, 2011 Tex. Sess. Law Serv. at 1277-78, 1282; Act of April 7, 2011, 2011 Tex. Sess. Law Serv. at 5, 9, 15-16, 17.
See Tex. Code Crim. Proc. Ann. art. 17.153 (addressing denial of bail for violation of a bond condition as to a defendant charged with compelling prostitution under Penal Code Section 43.05(a)(2) "against a child younger than 14 years of age") (West, Westlaw through 2019 R.S.); Tex. Code Crim. Proc. Ann. art. 38.072 (addressing admissibility of hearsay statements in a case involving the prosecution of a compelling-prostitution offense under Penal Code Section 43.05(a)(2) "if committed against a child younger than 14 years of age") (West, Westlaw through 2019 R.S.); Tex. Pen. Code Ann. § 21.02(b),(c) (stating that a person commits an offense if during a period that is 30 or more days in duration, the person commits two or more violations of Penal Code Section 43.05(a)(2), if at the time of the commission of each of the [violations], the actor is 17 years of age or older and the victim is a child younger than 14 years of age") (West, Westlaw through 2019 R.S.).
See Tex. Code Crim. Proc. Ann. art. 38.071 (addressing the testimony of "a child younger than 13 years of age" who is a victim of a compelling-prostitution offense under Penal Code Section 43.05(a)(2) (West, Westlaw through 2019 R.S.).
Tex. Fam. Code Ann. § 54.031 (addressing the admissibility of hearsay statements at a juvenile-justice hearing in which a child is alleged to be delinquent on the basis of a violation of Penal Code Section 43.05(a)(2) "if a child 12 years of age or younger . . . is the alleged victim of the violation.") (West, Westlaw through 2019 R.S.).
Penal Code Section 8.07 provides that a child younger than 15 years of age can commit prostitution. Under subsection (a), entitled "Age Affecting Criminal Responsibility," the Legislature provides that, with certain exceptions that do not apply to the offense of prostitution, "[a] person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age." This text means that one may not be criminally prosecuted for, or criminally convicted of, committing an offense of prostitution that one committed when younger than 15 years of age.
See Tex. Pen. Code Ann. 8.07(a) (West 2015).
See id.
A juvenile justice court may find that a child engaged in delinquent conduct based on the child's violation of a penal law, other than a traffic offense, punishable by imprisonment or by confinement in jail. But, with exceptions not applicable to a prostitution offense, this adjudication does not constitute a criminal conviction. So, the pursuit of an adjudication order or a disposition order in a juvenile court based on a child younger than 15 years of age having committed prostitution does not run afoul of Section 8.07(a)'s ban on criminal prosecution and conviction. Section 8.07(a) does not provide that a child under 15 years of age cannot commit prostitution or any other offense. Instead, under the statute's plain text a child under age 15 can commit an offense that the Legislature has promulgated in the Penal Code, but (with certain exceptions) these children cannot be criminally prosecuted or convicted when they commit those offenses.
See Tex. Fam. Code Ann. § 51.03(a)(1); In re B.D.S.D., 289 S.W.3d 889, 893 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
See Tex. Fam. Code Ann. § 51.13(a); In re B.D.S.D., 289 S.W.3d at 893.
See Tex. Fam. Code Ann. § 51.13(a); In re B.D.S.D., 289 S.W.3d at 893.
See Tex. Pen. Code Ann. 8.07(a) (stating that with certain exceptions that do not apply to the offense of prostitution, "[a] person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age") (emphasis added).
If presented with the matter-of-law issue the majority addresses today, the Court of Criminal Appeals might conclude that under the plain meaning of the compelling-prostitution statute and the five related statutory amendments enacted post-In re B.W., a child under age 14 is not incapable as a matter of law of engaging in Prostitution Conduct. In its rush to reach the opposite matter-of-law holding, the majority overlooks the impact of this legislative action and usurps the Texas Legislature's policy choices. Likewise, the majority misses the point in saying it is not this court's role to predict whether Texas's two high courts might disagree on what the compelling-prostitution statute means. The point is this court need not decide.
See Tex. Code Crim. Proc. Ann. art. 17.153; Tex. Code Crim. Proc. Ann. art. 38.071; Tex. Code Crim. Proc. Ann. art. 38.072; Tex. Fam. Code Ann. § 54.031; Tex. Pen. Code Ann. § 21.02.
See In re B.W., 313 S.W.3d at 826-36 (Wainwright, J., dissenting); Tex. Code Crim. Proc. Ann. art. 17.153; Tex. Code Crim. Proc. Ann. art. 38.071; Tex. Code Crim. Proc. Ann. art. 38.072; Tex. Fam. Code Ann. § 54.031; Tex. Pen. Code Ann. § 21.02.
Ante at 6-7, n.7.
The Unwelcome Consequences of Today's Decision
One source states that "[t]housands of children are exploited through prostitution every year in the United States and the average age of entry is 13 years of age." The Legislature has provided that a child younger than 12 years of age may be the victim of a compelling-prostitution offense, and thus may commit prostitution. To undergird enforcement of the compelling-prostitution statute the Legislature has made compelling prostitution under Section 43.05(a)(2) one of only ten offenses to which no statute of limitations applies. This action shows that Texas lawmakers view a violation of this statute as a serious offense. Rather than risk limiting the scope of Section 43.05(a)(2) or misstating the law, this court should choose a safer approach to resolving today's case.
See Coleman v. State, 183 A.3d 834, 842 (Md. Ct. Spec. App. 2018) (internal quotations omitted).
Tex. Fam. Code Ann. § 54.031 (addressing the admissibility of hearsay statements at a juvenile-justice hearing in which a child is alleged to be delinquent on the basis of a violation of Penal Code Section 43.05(a)(2) "if a child 12 years of age or younger . . . is the alleged victim of the violation.") (West, Westlaw through 2019 R.S.).
See Tex. Code Crim. Proc. Ann. art. 12.01(1) (West, Westlaw through 2019 R.S.).
This court could get to the same judgment by simply analyzing whether the trial evidence is legally sufficient to support a finding that the complainant engaged in Prostitution Conduct. The majority appears to concede that the trial evidence is legally insufficient to support a finding on the "knowingly" element without relying on the complicated legal point that consumes most of the court's opinion. In addressing whether the complainant, as a matter of law, can commit the offense of prostitution, the majority takes on a difficult and problematic analysis. Though the majority repeatedly insists this court must do so, nothing compels the court to take this thorny path.
See ante at 21-22.
See ante at 1, 2, 3, 11, 15, n. 12.
Whether the complainant was age 4 or age 44, appellant did not compel her to commit prostitution. So, this court need not decide whether a child of the complainant's age or any other age can be caused to commit prostitution. And, by taking this needless venture, the majority undercuts five unambiguous Texas statutes, sews confusion in Texas jurisprudence, and opens the door to other unwelcome consequences. If instead the court found the evidence legally insufficient under the facts of this case, the court could avoid the collateral damage that is sure to follow today's holding.
See Tex. Code Crim. Proc. Ann. art. 17.153; Tex. Code Crim. Proc. Ann. art. 38.071; Tex. Code Crim. Proc. Ann. art. 38.072; Tex. Fam. Code Ann. § 54.031; Tex. Pen. Code Ann. § 21.02.
The Better Course
Restraint is the better course. Rather than taking the path that would undermine statutes and prevent the prosecution of individuals who knowingly cause children under age 14 to commit prostitution, the majority should presume for the sake of argument that the complainant can engage in Prostitution Conduct and ask whether the evidence is legally sufficient to show that the complainant engaged in this conduct. The court could resolve this case with a simple answer to that simple question. The majority instead opts to cut a new trail and strew it with bad precedent. Preferring to keep to the surer path, I respectfully decline to join the majority opinion, though I concur in the court's judgment.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Spain and Poissant. (Spain, J., majority). Publish -Tex. R. App. P. 47.2(b).