Dukes v. State

Full title: GLEN L. DUKES, Appellant, v. THE STATE OF TEXAS, Appellee.

Court: COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

Date published: Apr 7, 2016

NUMBER 13-14-00731-CR (Tex. App. Apr. 7, 2016)

Opinion

NUMBER 13-14-00731-CRNUMBER 13-14-00732-CR

04-07-2016

GLEN L. DUKES, Appellant, v. THE STATE OF TEXAS, Appellee.

Memorandum Opinion by Justice Garza

On appeal from the 379th District Court of Bexar County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza

Appellant Glen L. Dukes was convicted on two counts of continuous trafficking of persons, a first-degree felony, and he was sentenced to life imprisonment for each count. See TEX. PENAL CODE ANN. § 20A.03 (West, Westlaw through 2015 R.S.). On appeal, he argues that the trial court erred by: (1) denying his request for new appointed counsel; (2) denying his motion for directed verdict; (3) denying his request for a jury charge instruction on a lesser-included offense; (4) overruling his objection to certain expert testimony as unfairly prejudicial; and (5) overruling his objection to the admission of his handwritten letters as evidence. We affirm.¹

1 This appeal was transferred from the Fourth Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).

I. BACKGROUND

Dukes was charged by two indictments alleging that, from on or about October 1, 2011 to February 6, 2013, he engaged two or more times in conduct constituting trafficking of persons under the penal code. See id. The conduct alleged in the first indictment² was (1) knowingly trafficking A.B. and J.H. and through force, fraud, or coercion causing them to engage in prostitution; and (2) knowingly receiving a benefit from participating in a venture involving that activity. See id. § 20A.02(a)(3)(A), (a)(4) (West, Westlaw through 2015 R.S.). The second indictment³ made the same allegations with regard to three other alleged victims: A.G., S.C., and G.P. The indictments were tried together at one trial.

2 Appellate cause number 13-14-00731-CR.

3 Appellate cause number 13-14-00732-CR. --------

At trial, A.B. testified that, when she was 17 years old, she became addicted to crack cocaine and started engaging in prostitution to support her habit. When she was 23 years old, around 2009 or 2010, she met Dukes, who "picked [her] up to do a date," which she defined as "to do a sexual favor for something in return." A.B. testified that, after they "did the date," "we started talking about 'the team.'" According to A.B., Dukes told her "if you join the team, that I will provide you with a roof over your head, the clothes on your back, the shoes on your feet and your cell phone so that you're able to have contact with the people that you do set up dates with." In exchange for this, she was to give all of her earnings to Dukes. A.B. initially declined the offer. However, after she later called Dukes because she "couldn't find any other drug dealer," he picked her up and brought her to his house, and she agreed to be part of his "team."

A.B. stated that, when she went to live at Dukes's house, his two children and one of his brothers were also living there, as were two other prostitutes. According to A.B., Dukes "had his own business" involving "house care and lawn care service" as well as prostitution, and she and the other women worked for Dukes doing all of those things. She stated that, when they did not want to do work because they were tired or hurt, Dukes "would hit us" with "his fist, open hands, poles from the closet that you hang your clothes on, coffee tables, anything that was within reach." When asked why she "did not just take off" after the abuse started, A.B. stated: "Because I thought that I had it better there because everything was being provided. . . . And then if I did leave, he would just come and look for me." She explained that, "[i]f you said that you were going to leave, he would just hit you." She stated that Dukes would hit her "[a]t least once a week." He often used a wooden pole used to hang clothes in a closet, at one time breaking her collarbone and at another time breaking her finger. In a separate incident, Dukes hit A.B. with a wooden coffee table until the table broke. On other occasions, he injected her with a "full syringe of heroin" as "punishment" for disobedience; strangled her to the point that she lost consciousness; and raped her using a soda can and a bottle of hot sauce.

A.B. additionally stated that Dukes had forced sexual intercourse with her and the other women who were part of his "team." If they refused, according to A.B., Dukes "would assault you or he would pick somebody different."

A.B. explained that Dukes controlled virtually all aspects of the women's lives, including how they looked, when they slept, and how much they charged for their services. A.B. testified that she and the other women were not allowed to keep any of the money they earned; if they tried to keep any of the money, he would hit them. She stated: "If you came back with the wrong amount, you know, you could be hit or he could just take your money and tell you to go back out and come back with the correct amount." A.B. stated that Dukes would buy clothes for the women and, on a typical day, "once you were dressed to his liking, your hair was right the way that he wanted it to be, then he would give you your good morning or your motivation." She explained that "good morning" or "motivation" referred to crack. If the women obtained drugs from somewhere else, Dukes "would assault [them]." If the women used the drugs somewhere other than where Dukes instructed, he would assault them. A.B. was arrested and jailed multiple times for prostitution and drug possession, but Dukes would bail her out, and she would "go right back to work."

According to A.B., many of the women that worked for Dukes got tattoos stating "Menace," the name he used for his "team." In order to show that they were "worthy" of getting the Menace tattoo, they had to be "jumped" for two minutes by men and women. She explained that "jumped" means that "[e]verybody would fight them all at one time."

A.B. identified photographs of several of the women that engaged in prostitution for Dukes, including all of the women named as complainants in both indictments. A.B. stated that each of the women was subject to the same treatment as she was, including physical beatings and forced sexual intercourse.

In November of 2011, A.B. left Dukes's house. Eventually, she got a job and became sober. However, Dukes asked her to come back, and he offered to buy her a car. She came back to the house but left "for good" in June of 2012. When asked on cross-examination why she did not leave earlier, A.B. replied:

The truth is, is that he provided me my drugs, my clothing, my food, my shoes on my feet. Everything that I needed was provided underneath one roof. That's why I didn't leave. If you left, when you leave, all your money that you make out there on the streets is just spent on drugs. When you brought all your money back to him and you spent it on drugs, he also provided the roof, the clothes, and the shoes and the food. So not all your money is spent just on your drugs. He made sure that he provided everything else that came along with it.

A.G. testified that she started to use crack cocaine and became involved in prostitution around 2009. Dukes invited her to become part of his "team," and she moved into Dukes's house around 2012. She stated that the only rules were "[s]leep, keep up with your hygiene, keep your space clean," and "[r]espect." If someone violated the rules, Dukes would hit them or withhold their drugs, causing them to "feel like you want to die." A.G. corroborated A.B.'s testimony that Dukes would make the women fight each other. She denied that Dukes had a rule about how much money she had to bring in each day. She recalled that, around Christmas of 2012, she saw Dukes beat J.H., who also worked for him, with his fist. Another time, when J.H. did not want to go to sleep, Dukes hit J.H. and stepped on her. Yet another time, when Dukes discovered that one of the women had drugs that were not from him, he hit A.G. and J.H.; and when A.G. tried to leave, he put a gun to her head. He eventually let her leave but she came back because "if I wouldn't have, he would have gone and looked for me and found me. And it would have been way worse, way worse. I know it. It would have been way worse." She said there were "many times" when she did not want to engage in prostitution but she went anyway because she was scared of what Dukes would do to her. She heard Dukes explicitly threaten J.H.'s life if she were to leave. A.G. stated: "It was either stay or die."

On February 6, 2013, A.G. was "doing a date" with a man in Dukes's house when police "came through the windows and all over the house" and there was a sound "[l]ike an explosion." Police arrested A.G. and interviewed her. She identified photographs of a flier advertising "Mrs. Menace 'Party Girls'" that was found in Dukes's truck. The flier stated, "Hire an Exotic Private Dancer to Spice up Your Party!" and contained racy pictures of some of the women that worked for Dukes. A.G. stated that this was a third way for the women to get clients, along with working out of strip clubs and "working the streets." She stated she has been arrested several times for prostitution and was incarcerated at the time of trial. On cross-examination, A.G. agreed that she was on drugs every day during this time period, so there was "[a] lot of stuff [she didn't] remember."

S.C. testified that she started using crack when she was about 22 years old. She met Dukes, whom she considered to be her boyfriend at first, and started prostituting herself to support her habit. Like the other women, S.C. stated that she gave all of the money she earned from prostitution to Dukes. She also explained that Dukes was violent with her, once smashing a jar over her face, causing a scar on her eye. Further, the other women in the house beat her up—she stated that "I woke up to just being stomped when I was asleep" and "I got my back messed up real bad." She agreed that there were times when Dukes made her have sex against her will, and times when he threatened her with a gun. Once, Dukes suffocated her with a "[b]ag and a hand." Another time, Dukes and J.H. forcibly injected her with heroin against her will. S.C. stated she has moved on with her life, is employed, and no longer uses drugs.

V.R. also testified that she lived in Dukes's house and that she engaged in prostitution and gave the proceeds to Dukes in exchange for drugs. She said Dukes required the women to "do five dates a day." She explained that Dukes kept a dry-erase board where the women were supposed to keep track of the times they left the house, the times they came back, and how much money they made. V.R. testified that Dukes was often violent with her and twice forced her to have sex against her will. Once, to punish her for disobeying him, Dukes slapped her "so hard that [she] fell down"; when she looked up, Dukes was wearing gloves and was aiming a gun at her, and he threatened her and her family. Another time, Dukes and J.H. kicked and punched her because she came back to the house without any money. She observed Dukes hit J.H. with a wooden pole, and she was present when Dukes forcibly injected A.B. with heroin. V.R. did not leave because she was afraid for her life and because she was addicted to heroin. Later, when V.R.'s father died, Dukes allowed her to travel to Wichita Falls to be at his funeral. When she returned, she told Dukes that her mother had bought her a cemetery plot next to her father. Dukes told V.R., "bitch, you're not going to be buried in Wichita Falls; your burial ground is going to be under my house . . . ." V.R. left the house the next day and never went back.

G.P. testified that she started engaging in prostitution when she was seventeen years old, and she was thirty-two years old at the time of trial. Dukes "picked [her] up on the street" in 2010 and brought her to his house. She initially declined to work for him because she had "always heard, you know, bad things about guys like that." Two years later, Dukes picked her up again; this time, she stayed with him because she was pregnant and "having trouble" walking and finding clients. He gave her some crack and "seemed really nice." Dukes provided her with food, clothes, and shelter. He was violent with her when she did not bring back any money. On one occasion, when she was still pregnant, Dukes hit her in the face and kicked her in the stomach while holding a gun. She did not leave because she "knew he'd come after [her]" and she had nowhere else to go. G.P. stated she was arrested for prostitution but released after four months; however, she went right back to Dukes because she "thought [she] loved him." Later, after another time when Dukes was violent with her, she tried to leave, but Dukes stopped her and ordered her to take her clothes off. At the time of trial, G.P. was incarcerated on prostitution charges.

The jury found Dukes guilty as charged on both counts and sentenced him to life imprisonment for each count. This appeal followed.

II. DISCUSSION

A. Motion to Withdraw

By his first issue, Dukes contends that the trial court erred by overruling (1) his request to remove his court-appointed trial counsel and (2) his trial counsel's request to withdraw from the case.

1. Facts

At a pre-trial hearing on October 1, 2014, with Dukes not present in the courtroom, Dukes's court-appointed trial counsel stated as follows on the record.

I got today in my office a return letter from—some information that I sent Mr. Dukes about a week ago. The letter has been refused, marked not deliverable as addressed. But on the side it says, Refused. Mr. Dukes, when . . . I went and saw him about two weeks ago, fired me . . . . And it's my—it's my understanding right now that Mr. Dukes is going to refuse to

talk to me, so it's difficult for me to keep Mr. Dukes reasonably informed about the progress of his cases.

The information that I sent him are statements of complaining witnesses and a deal that one of the witnesses made with the State where she is going to avoid any liability for any of the criminal actions that are pending against Mr. Dukes. I think it's important and Mr. Dukes is refusing to acknowledge that I'm his attorney. He sent the letters back. So I just want the Court to be aware of the possible conflict between Mr. Dukes and myself.

Dukes then entered the courtroom and stated the following:

THE DEFENDANT: Pretty much I just found out Monday that I wasn't going to be able to receive an attorney in the courtroom, a new attorney, so I had let my family know what was going on and I was going to hire an attorney. I just found this out Monday and I wanted to know if I could just have about a week or so or whatever to get my attorney.

THE COURT: Okay. So are you saying you hired a lawyer?

THE DEFENDANT: Yes, sir. I'm in the process of hiring. Just found out Monday. They came and got the money I had on my books. They're going to put the rest of the money with it to put down the down payment on an attorney.

The trial court noted that the State had already announced its intention to call up to forty witnesses, including some coming from out of town, and that the current trial setting was a special setting and had been pending for one and a half years. The trial court then stated:

THE COURT: Very difficult, Mr. Dukes, to schedule trials. It takes a long time. There's a lot involved. . . . So understanding where we're going, this case has been set for some time and so we're going to—we're going to—the Court's intention is to pick a jury. I mean, if you have a hired attorney to come in who's ready to run and take it up, you know, we're willing to do that—

THE DEFENDANT: But that's—that's not my—

THE COURT: —as long as we start on Monday. So whatever—obviously you have the right to representation that you desire to get if you hire somebody, so you certainly can do that, all right?

THE DEFENDANT: Yes, sir.

THE COURT: Is there anything else you want to—you want to say?

THE DEFENDANT: No, sir. That's it.

A jury was selected on October 6, 2014, and the trial proceeded with Dukes represented by his court-appointed defense counsel.

Subsequently, on the fourth day of trial, outside the presence of the jury, Dukes complained to the trial court that defense counsel is "not wanting to represent me right by presenting the questions." When the trial court asked if Dukes was complaining that his counsel "is not asking the questions that you want him to ask," Dukes replied: "Yes, sir, because if I don't write the question, I have no question. I have no defense. So I got to write the question. He's not writing—his paper is blank. Who—how am I going to get a defense?" Defense counsel then stated:

Judge, what I'm hearing and what I've been hearing from Mr. Dukes for, I guess, a couple of days is that he's not happy with my representation. I understand he's not happy with my representation. Communication with him has been tough. I've done the best that I can to do everything he wants me to do. . . . But my particular strategy, quite frankly, is that if I'm in a bad situation with a witness like this, I don't want to spend a lot of time with her. I will make some points when I get a chance, but it's my opinion that why do I want to grind on somebody who's hurting the defendant, my client, the man I'm supposed to be representing? I think everybody has a right to his trial strategy, and I'm doing the best that I can for Mr. Dukes. If he believes that the communication between us has been destroyed to the level where he doesn't think that he's getting appropriate representation, I serve at the Court's pleasure and I'll be willing to withdraw and he can get a new attorney.

The trial court then observed that Dukes had been "constantly interrupting" his counsel during counsel's cross-examinations. Eventually, Dukes stated that he wanted his counsel to be removed from the case, but he did not want to represent himself. The trial court denied the request.

When the jury was brought back into the courtroom, Dukes refused the bailiff's orders to sit down. He remarked: "Get me out of here. Man, I've been misrepresented, man." The trial court again excused the jury. Dukes then said the following:

No, man. Y'all not going to do me like that. You can do whatever you want to do. You're not going to do me like that. My family ain't in here to see what y'all are going to do. Man, you crazy. You're not going to do that to me, man. This man not fixing to represent me. And you can lock me up and do whatever you want. He's not fixing to represent me. He don't even know what he's talking about, man. . . . You don't have no evidence that I did none of this stuff. Y'all programming people to say this stuff, man. That's why you don't have no evidence.

The outburst continued, with Dukes repeatedly interrupting the trial court and his own defense counsel and refusing the bailiff's commands to sit down. Dukes threatened to leave the courtroom if defense counsel said another word. The trial court admonished Dukes that he had the right to be present in the courtroom but that, if he voluntarily excused himself, the trial would continue. Dukes then voluntarily left the courtroom, and trial proceeded for the rest of the day, and the following day, without his presence.

Two days later, defense counsel informed the trial court that his ability to communicate with his client was "absolutely destroyed" and asked to be removed as Dukes's attorney. The record does not contain a ruling on counsel's motion, but he remained as Dukes's counsel for the remainder of the proceedings, thereby implicitly indicating that counsel's motion was denied.

2. Analysis

The Sixth Amendment guarantees a defendant in a criminal proceeding the right to have assistance of counsel, including the right to counsel of the defendant's choosing. Gonzalez v. State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003). The right to counsel of one's own choice, however, is neither unqualified nor absolute. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991); Brink v. State, 78 S.W.3d 478, 483 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). It must be balanced with the trial court's need for prompt, orderly, effective, and efficient administration of justice. Emerson v. State, 756 S.W.2d 364, 369 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). The right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice. King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000) (citing Green v. State, 840 S.W.2d 394, 408 (Tex. Crim. App. 1992)).

In the absence of adequate cause for the appointment of new counsel, an accused does not have the right to appointed counsel of choice but must accept counsel assigned by the court. Davis v. State, 150 S.W.3d 196, 206-207 (Tex. App.—Corpus Christi 2004), rev'd on other grounds, 195 S.W.3d 708 (Tex. Crim. App. 2006). The trial court has discretion to determine whether counsel should be allowed to withdraw from a case. King, 29 S.W.3d at 566. "[P]ersonality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal." Id. A trial court has no duty to search for counsel agreeable to the defendant. Id. The defendant carries the burden of proving that he is entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. [Panel Op.] 1982).

Under the circumstances presented here, we find no abuse of discretion in either the trial court's denial of counsel's request to withdraw or its denial of Dukes's motion for new counsel. At the time Dukes first expressed to the trial court his concerns regarding his court-appointed attorney, he represented to the court that he was "in the process of hiring" a new attorney, and the trial court stated that he would "certainly" allow a newly-retained attorney to substitute for court-appointed counsel; however, the record shows that Dukes never retained the services of another attorney. By the time Dukes's court-appointed trial counsel expressed his willingness to withdraw, three days of trial had already been completed. See id. ("Given the amount of work counsel had already invested in the case, substitution of counsel could have necessitated delay of the trial.").

Dukes's expressed dissatisfaction with his trial counsel also does not rise to the level of adequate cause for appointment of new counsel. See Davis, 150 S.W.3d at 207. Dukes contends on appeal that "[t]he situation in the case had devolved from a mere disagreement over how the case was handled to an unworkable situation in which counsel and client were adversaries in their own right." However, he does not direct us to anything in the record showing that his counsel's performance was deficient in any way. And, he concedes that, even though Dukes absented himself from the proceedings at one point, the trial continued and defense counsel continued to represent him reasonably and adequately. See Malcom, 628 S.W.2d at 792 (noting, where appellant claimed that counsel was "unwilling to explore the appellant's contentions" such that "an irreparable animosity" had developed, that "appellant's court-appointed attorney provided adequate representation" and "[t]he record shows a competent and vigorous defense"; therefore, there was no "negative impact on the representation" and the trial court did not err in denying appellant's motion for new counsel).

In light of the foregoing, we conclude that Dukes has not shown that the trial court abused its discretion. His first issue is overruled.

B. Directed Verdict

By his second issue, Dukes contends that the trial court erred in denying his motion for directed verdict. This claim constitutes a challenge to the sufficiency of the evidence supporting the conviction. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003). In reviewing the sufficiency of the evidence, we consider 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 crime beyond a reasonable doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record of historical facts supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010).

Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.

Section 20A.03 of the penal code, enacted in 2011, defines continuous trafficking of persons as engaging two or more times in conduct constituting trafficking of persons under section 20A.02 of the penal code, during a period that is 30 or more days in duration. See TEX. PENAL CODE ANN. § 20A.03(a). Under section 20A.02, a person commits an offense if he knowingly "traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in," among other things, prostitution. Id. § 20A.02(a)(3)(A). Section 20A.02 also makes it an offense to knowingly "receive[] a benefit from participating in a venture that involves" prostitution. Id. § 20A.02(a)(4). "Traffic" means "to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means." Id. § 20A.01(4) (West, Westlaw through 2015 R.S.). Accordingly, a hypothetically correct jury charge would instruct the jury to find Dukes guilty as charged in the first indictment if he knowingly transported, enticed, recruited, harbored, provided, or otherwise obtained A.B. or J.H. and, through force, fraud, or coercion, caused them to engage in prostitution, or knowingly received a benefit from participating in a venture that involved trafficking them, two or more times over a period of thirty days or more. See id. §§ 20A.01(4), 20A.02(a)(3)(A), 20A.02(a)(4), 20A.03(a). A hypothetically correct jury charge would instruct the jury to find Dukes guilty as charged in the second indictment if he knowingly transported, enticed, recruited, harbored, provided, or otherwise obtained A.G., S.C., or G.P. and, through force, fraud, or coercion, caused them to engage in prostitution, or knowingly received a benefit from participating in a venture that involved trafficking them, two or more times over a period of thirty days or more. See id. §§ 20A.01(4), 20A.02(a)(3)(A), 20A.02(a)(4), 20A.03(a).

Dukes specifically argues that, "[a]t best, the evidence showed a continuous course of conduct during the relevant period, but there was no testimony from the witnesses about two or more specific acts of misconduct."

We disagree. A.B. testified that she lived in Dukes's house for a total of four years, from around 2009 to 2013. She stated that she was engaged in prostitution throughout that time period. She stated that she would give Dukes all of her earnings from prostitution, and in exchange, Dukes would provide her with shelter, food, clothes, and drugs. According to A.B., Dukes would assault her and the other women if they refused to engage in prostitution, refused to have sex with him, or refused any of his other orders. A.B. testified that Dukes hit her "at least once a week." A.G. also testified that, from the time she started living at Dukes's house in 2012 until February 6, 2013 when she was arrested, Dukes subjected her and other women to beatings and threatened her with a gun. She stated there were "many" times when she engaged in prostitution only because she was afraid of what Dukes would do to her if she did not. S.C., V.R., and G.P. also testified that Dukes would become violent with them if they did not follow his orders to engage in prostitution.

Viewing the evidence in the light most favorable to the verdict, we find that the evidence is sufficient to establish the essential elements of the charged offenses beyond a reasonable doubt. See id. §§ 20A.01(4), 20A.02(a)(3)(A), 20A.02(a)(4), 20A.03(a); Hacker, 389 S.W.3d at 865. Dukes's second issue is overruled.

C. Lesser-Included Offense

By his third issue, Dukes contends that the trial court erred in denying his request, made at the charge conference, for a jury instruction on the lesser-included offense of trafficking of persons, a second-degree felony. See id. § 20A.02.

We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). The first step of the analysis asks whether the lesser-included offense is included within the proof necessary to establish the offense charged. Rice, 333 S.W.3d at 144. As noted, continuous trafficking of persons is defined in section 20A.03 of the penal code as engaging two or more times, during a period that is 30 or more days in duration, in conduct constituting trafficking of persons under section 20A.02 of the penal code. See TEX. PENAL CODE ANN. §§ 20A.02, 20A.03. Therefore, the first prong is met.

The second step is to determine whether "there is some evidence in the record which would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense." Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. App. 2013); Hall, 225 S.W.3d at 536. The evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012); Rice, 333 S.W.3d at 144; Hall, 225 S.W.3d at 536. Anything more than a scintilla of evidence will be sufficient to entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. However, "it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Cavazos, 382 S.W.3d at 385; Wortham, 412 S.W.3d at 558.

Dukes argues that he was entitled to an ordinary trafficking of persons charge because "it was not proven that there were two or more discrete instances of [trafficking of persons] during a period of 30 days or longer." We have already concluded, however, that the evidence was sufficient to establish that Dukes engaged in trafficking of persons two or more times during a period of thirty days or longer. Indeed, there was ample evidence that Dukes engaged in conduct constituting trafficking of persons on multiple occasions over the course of several years. Dukes does not direct us to any evidence, and we find none, indicating either (1) that he engaged in conduct constituting trafficking of persons only once, or (2) that his multiple acts of trafficking occurred only within a thirty-day period. Dukes states correctly that "[t]he evidence presented at the trial constitutes some evidence that a lesser included offense was committed," but none of that evidence "rebuts or negates" any element of continuous trafficking of persons as defined in the penal code. See Cavazos, 382 S.W.3d at 385; Wortham, 412 S.W.3d at 558. Accordingly, Dukes was not entitled to the ordinary trafficking of persons charge. We overrule his third issue.

D. Admission of Evidence

Dukes's fourth and fifth issues challenge the trial court's admission of evidence over his objections pursuant to Texas Rule of Evidence 403, which provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. In a Rule 403 analysis, the probative value of the offered evidence must be balanced against the prejudice or harm that may result from its admission. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh'g). "Under Rule 403, it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice." Hammer v. State, 296 S.W.3d 555, 568-69 (Tex. Crim. App. 2009). "The rule envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Id. (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).

When undertaking a Rule 403 analysis, we balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

We review a trial court's rulings on admissibility of evidence for abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We will not disturb the trial court's ruling if it was within the "zone of reasonable disagreement." Id.

1. Expert Testimony

By his fourth issue, Dukes contends that the trial court erred by admitting the expert testimony of Laurie Cook Heffron, a licensed social worker and an expert on human trafficking, because its probative value was substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403. Heffron conceded that she reviewed the police reports in this case, but had no contact with the complainants and would not be opining specifically about Dukes. Instead, she testified as to the general nature of human trafficking. Heffron stated in part as follows:

Human trafficking is a crime that has many manifestations, but what's similar across all the manifestations it can have is that it is a crime where one person makes someone else do some kind of work, which can include commercial sex activity, make someone else do some kind of work for a profit or some kind of gain. And they do that by using either force or fraud or coercion to make that person do this work. . . .

[I]t is a business similar to other kinds of trafficking where somebody's selling an object. In human trafficking it's that somebody's selling a person and that person can be sold over and over for a profit. One of the ways that this happens is, again, is through a coercion and making—often times it's breaking down a person into making that person believe that what they have in their body is a commodity, is something that is a transactional element. It's removing the—in terms of sex trafficking, removing or capitalizing on the notion that sex is not about romance or healthy relationships or anything like that. It is really a transactional tool to be used to make money. . . .

Traffickers will use often times physical abuse or sexual violence or rape to control victims. But then they have this host of other series of ways or strategies that they will also, excuse me, control victims that are maybe considered more subtle. Those include intimidation, threats. So threatening—threatening to hurt someone, intimidating someone by hurting someone else in that person's presence so they know that those threats are real.

It can include economic abuse or controlling the resources that somebody needs or the basic needs somebody has. Somebody in need of shelter, somebody in need of affection, of love, of protection. They will capitalize on those needs, and one of the ways that they do that is by manipulating those needs, maybe providing those basic needs at times and maybe withholding them at other times. . . .

[T]raffickers prey on the vulnerabilities of victims and recruit victims based on these vulnerabilities. These vulnerabilities might include things like a past history of sexual abuse. They might include things like a past history of criminal activity. Someone already in prostitution, someone with a—with a record. They might include things like past history in the foster care system, unfortunately, or homelessness or drug addiction.

So traffickers will often recruit people who have those vulnerabilities as a— as an easy target in some ways and then portray this idea of a family or a team or we're in this together, I can promise you this, this and this. Maybe a shelter. Maybe it's clothing. Maybe it's a glamorous lifestyle and we're in this together. We're going to—we're going to rise above these vulnerabilities you have. . . .

And then after that honeymoon phase where things feel okay maybe even for the victim, there begins a phase of what people call tension building, and so this often comes when maybe the victim all of a sudden notices maybe there's this power differential happening. And traffickers or abusers will often then begin to lay down some rules, some codes of conduct. Some use low kind of levels of coercion, intimidation, threats, those kinds of things, and then sometimes as that tension-building phase escalates, there's an explosion or an acute battering phase where a batterer or a trafficker will use more explicit violence, rape, physical—physical violence, slaps, punches, those kinds of things.

And what's interesting about cycle of violence is it continues, so even after an explosion or this acute battering phase, often time the honeymoon phase comes back as a way to say—to make up, but then to also provide those basic needs that are needed again, to keep the victim in that cycle of abuse, to keep the victim close, to bring them closer to this idea of a family or this team, that we're in this together.

Heffron stated that it is "quite common" for traffickers to "literally brand" their victims with their identity to reinforce the idea that the victim is the property of the trafficker and that they are part of a team. She said it is also common, when multiple victims are involved, for traffickers to "play[] those folks off of each other" as an intimidation tactic. She stated:

Unfortunately, human trafficking is one of those crimes where people don't often self-report or make an outcry or come to the police and report what's happened to them. Not like we might think of as a mugging or your car is stolen when you immediately know you're a victim of crime and you're going to go report to the police.

And there are lots of reasons why trafficking victims don't or there are many possible reasons why they don't. One might be that many of the folks, because of the vulnerabilities that we talked about that might be in their past or their current, is that they've tried to seek help, some kind of help before or maybe they've tried to leave the trafficking situation before and they were met with poor outcome. It might be they had a bad response from law enforcement in their past, a bad experience with them. They might have

been failed by social service providers, by social workers and by their family in the past. . . .

We have a long history of charging people engaged in prostitution with the crime of prostitution, right, even children, and so that's another element that that might be why somebody, especially who's forced into prostitution, will not look for help via law enforcement.

Heffron conceded on cross-examination that her research "is not exact" and "it's an emerging field of study."

Dukes argues on appeal that the inherent probative value of Heffron's testimony was minimal and that the State did not need it in order to convict him. See Gigliobianco, 210 S.W.3d at 641-42. It is true that Heffron did not testify specifically regarding the allegations against Dukes; instead, she provided a general overview of patterns seen in human trafficking cases. However, Dukes's primary defense at trial was that the witnesses—all of whom were "former drug addicted street prostitutes" and some of whom were incarcerated at the time they gave their testimony—were of "questionable credibility" and were therefore likely lying about what they had experienced. Heffron's testimony was probative in that it offered a possible explanation, based on research of similar cases, of why victims of human trafficking in that situation may be hesitant to go to the police. We therefore disagree with Dukes that the State had no "need" for Heffron's testimony in order to make its case. Dukes further suggests that the jury was "prone to give [Heffron] outsized credibility" because of her "educated professional position." But even if that were so, he does not explain how that would be an "improper basis" upon which the jury could make its decision. See id. Dukes does not dispute that Heffron was properly qualified to testify as an expert witness. Further, he concedes that the testimony was not confusing, distracting, or time-consuming. See id.

After considering all of the factors enumerated in Giglioblanco, we find no "clear disparity" between the degree of unfair prejudice arising from the testimony and its probative value. See id.; see also Hammer, 296 S.W.3d at 568-69. The trial court did not abuse its discretion in admitting Heffron's testimony.

2. Handwritten Letters

By his fifth issue, Dukes contends that the trial court erred in admitting into evidence four handwritten letters he wrote to various people which were obtained by police as part of their investigation. One of the letters, which was addressed to Dukes's daughter "ToTo," stated in part:

This behavior is why I sit here today, and so we don't have to fight no more or yell and argue or slap hoes around no more, it's now childish to me to display such behavior. It's time for me to grow up and teach you the same because we are well established in the streets. It's all about a legal hus[t]le now and staying out this "slave man system." Gotta do the shit the[y] say do. Slavery is not for us no more ToTo. We are meant to be free in the studio, having fun and enjoying life because I put in the work already for the fam. Just get legal money and have fun now is my plan for us ToTo.

My new team when I get there because I believe God wants me back with you because I'm the manager. It's going to be me, you, Larita, Alex, Kat and Rochelle to rebuild the Mrs. Menace family legally without drugs or weapons. Just a lot of girls. But I now have a legal business for them to work, so the police can't fade us either.

I will be writing you once a month through Alex because your mom has a right to be a hat[e]r, but we move past all hataz because their knowledge only goes up to the hate mark, then it stops.

Now, remember, hating and fighting and yelling and screaming is childish and we have grown up.

Another letter Dukes wrote to "ToTo" stated in part:

You see baby Girl you must start to understand life as it unfolds right in front of you. Daddy is different like a gay person or a prostitute, but I am and [sic] pimp who has no desire to change. . . . ToTo I am who I am and this society ain't ready for me, so just like they hate me, I hate them. Real talk! ToTo I have studied the Bible and researched from life to Bible to books

and they all lead back to the problem is not us, it's them, the people who won't accept us the way we are.

A third letter, written to his other daughter, stated in part:

[W]rite me as soon as you talk to [A.B.] and [J.H.] let me know what the[y] say. . . ask them what are they going to do? Tell everybody (your mom and ToTo) what's going on and I love them now everything is up to these two hoes. So make it happen baby Girl, talk to them and let them know all they have to do when contacted again by D.A. is plead the 5th.

Dukes concedes on appeal that the evidence is probative, but he argues that "it really did not add much to the very lengthy testimony" of the other witnesses. He contends that "if this evidence were eliminated in its entirety, the State's case would have been proven anyway, provided that the State's witnesses were believed." That may be true, but that has no bearing on whether the letters tended to encourage the jury to decide the case on an improper basis, nor does it speak to whether the evidence was confusing, distracting, or time-consuming. See Gigliobianco, 210 S.W.3d at 641-42.

Having reviewed the applicable factors, we find that the trial court did not abuse its discretion in determining that the probative value of this evidence was not outweighed by any danger of unfair prejudice. See TEX. R. EVID. 403. We overrule Dukes's fifth issue.

III. CONCLUSION

The trial court's judgments are affirmed.

DORI CONTRERAS GARZA,

Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 7th day of April, 2016.