No. 05-09-01331-CR
Opinion issued May 27, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-64532-T.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice MURPHY.
In one point of error, Shederick Damone Smith appeals his conviction for compelling prostitution, arguing the trial court erred by not charging the jury on the lesser included offense of prostitution. We affirm.
Background
Fifteen-year-old L.D. ran away from home in December 2008. At trial, L.D. testified she met LaPrincess Moore at a bus station when she admired Moore's Mercedes. A few days later, L.D. called Moore, and Moore put L.D. in touch with appellant, whom she knew as "Fancy." L.D. testified she accepted appellant and Moore's invitation to stay with them and Moore took L.D. to a condominium in North Dallas. When she arrived, appellant asked L.D. if she had any money for him; L.D. gave him three hundred dollars she received from men before she met appellant. Appellant and Moore told L.D. she needed to make money, and the next day Moore took L.D. with her to Harry Hines Boulevard in Dallas to prostitute. L.D. stayed with appellant and Moore for approximately eight days, and she prostituted every day. L.D. testified appellant would instruct Moore and L.D. as to where to prostitute, what to wear, and how much money to bring back. Appellant also instructed Moore to stay with L.D. so L.D. would not run away. Moore would buy clothes with and for L.D., and appellant purchased fishnet stockings for her to wear. L.D. also testified Moore purchased condoms for them with money appellant gave Moore. L.D. described one night when appellant parked near the location L.D. and Moore were working and stayed in contact with them. While on the phone with appellant, L.D. asked to stop working because she was cold. Appellant told her she needed to make more money; the more money she made, the sooner she would get out of the cold. L.D. continued working. Another night when L.D. told appellant she did not want to work, he "screamed" at her; she prostituted that night also. L.D. gave any money she made prostituting to appellant, and he made it clear to her that it was no longer her money. L.D. testified she stayed with appellant because she did not want to return home and she did not have anywhere else to go. She gave appellant money so he could take care of her. Otherwise, she "would walk around for hours by [her]self until a dude offered [her] a ride or [she'd] sleep with them just to have a place to stay." She said she stayed with appellant because she felt safer with appellant than being on her own. Appellant also bought L.D. a cell phone. L.D. testified that soon thereafter appellant asked her to post an advertisement on the internet using his computer "to try to convince dudes to . . . want to buy me to give me money." L.D. wrote the advertisement, although appellant suggested some of the content. The advertisement listed her new cell-phone number as the method of contact and included pictures of L.D. that she stated were taken by appellant. It was this advertisement that resulted in appellant's arrest. On Christmas Eve 2008, a vice detective for the Dallas Police Department was reviewing internet advertisements for offers of prostitution. L.D.'s advertisement caught the detective's attention because it was "blatant prostitution" and one of the women featured appeared to be underage. The detective initiated an investigation and called the number listed; L.D. answered. Without checking with anyone else, L.D. "made the date" with the detective, who set up a meeting at a motel. The detective testified both L.D. and Moore arrived at the motel room, and Moore initiated the conversation by asking about money. Moore negotiated the price with the detective, after which L.D. stated, "Let's get started." The detective then communicated the "take-down" signal to other officers. Both Moore and L.D. were taken into custody. Once in custody, L.D. was interviewed by another sergeant in the child exploitation unit. The sergeant testified that during this interview L.D. identified appellant as her pimp. L.D. then called appellant using her cell phone. During the call, which was recorded, L.D. referred to appellant as "daddy," a term the sergeant identified as referencing a pimp when used by a prostitute. In response to L.D.'s request to purchase clothes with money she had just earned, appellant refused, stating she had made him less than a thousand dollars since she moved in with him. Appellant also told L.D. to work on another "trick" while he tried to find her a ride home. Appellant was indicted for compelling prostitution of L.D., a minor under seventeen years old. Appellant did not testify during the guilt-innocence phase of his trial. The jury found appellant guilty of the offense as alleged in the indictment and assessed enhanced punishment at forty-two years' imprisonment. This appeal followed. Discussion
At the close of evidence, appellant requested the jury be instructed on the lesser included offense of prostitution. The trial court denied the request. In his sole point of error, appellant argues the trial court erred in refusing the instruction because the State failed to prove appellant caused L.D. to commit prostitution. Applicable Law
We review the trial court's denial of a request to include a lesser included offense in a jury charge for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). In determining whether a lesser included offense may be submitted to a jury, we use a two-part test known as a " Royster" test. Grey v. State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009). In the first part of the test, we examine whether the lesser offense is included within the proof necessary to establish the offense charged. Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007) (first step in analysis is question of law and requires comparison of elements of offense as charged with statutory elements of potential lesser offense without considering evidence presented at trial); see also Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006) (defining lesser included offense). If we determine the lesser offense is included, we then review the record to determine if some evidence exists to support the instruction-that is, whether the record contains some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. Campbell, 149 S.W.3d at 152. In making this decision, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). That the jury might have disbelieved evidence pertaining to the greater offense is not sufficient. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003); Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). There must be some evidence directly germane to a lesser included offense for the fact finder to consider before an instruction is warranted. Hampton, 109 S.W.3d at 441; Skinner, 956 S.W.2d at 543. Application
Under the version of subsection 43.05(a)(2) in effect at the time of the offense, a person commits the offense of compelling prostitution if he knowingly "causes by any means a person younger than 17 years to commit prostitution." See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1991 Tex. Gen. Laws 3586, 3681 (amended 2009) (current version at Tex. Penal Code Ann. § 43.05(a)(2) (West Supp. 2010)). A person commits the offense under this subsection "regardless of the means used." Tubbs v. State, 670 S.W.2d 407, 408 (Tex. App.-Dallas 1984, no pet.) (emphasis removed). Under the relevant version of subsection 43.02(a)(1), a person commits the offense of prostitution if he knowingly "offers to engage, agrees to engage, or engages in sexual conduct for a fee." See Act of June 15, 2001, 77th Leg., R.S., ch. 987, § 1, 2001 Tex. Gen. Laws 2153, 2153 (amended 2009) (current version at Tex. Penal Code Ann. § 43.02(a)(1)). The court of criminal appeals previously held prostitution may be a lesser included offense of compelling prostitution. Raven v. State, 533 S.W.2d 773, 775 (Tex. Crim. App. 1976). The State does not contest this, instead arguing appellant fails to meet the second prong of the Royster test. Appellant argues the lesser included instruction was appropriate, because it would be rational for a jury to have found that the State did not prove he caused L.D. to commit prostitution. To support his causation argument, appellant points to evidence from the trial that (1) L.D. prostituted self-sufficiently before and after she met appellant, and (2) Moore appeared to be the "driving force" behind the relationship with L.D., indicating that appellant did not act alone. Appellant also asserts the jury was instructed on causation and the law of the parties, thus possibly creating "a legitimate dispute about the difference between what constituted aid and assistance to [L.D.'s] commission of prostitution, and what constituted causation." Appellant would not be entitled to a lesser included instruction unless the record contains some evidence that would permit the jury to find rationally he was guilty only of the lesser offense of prostitution. Hall, 158 S.W.3d at 473. Stated differently, no instruction is required where a defendant presents no evidence and no evidence exists that otherwise raises the issue. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). Here, appellant did not testify or offer any evidence in the guilt phase of trial. Nor is there any evidence negating L.D.'s testimony that she prostituted herself at appellant's behest. See Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (per curiam) (may show defendant guilty only of lesser included offense if evidence refutes or negates other evidence establishing greater offense). Asserting that the jury may have disbelieved L.D.'s testimony is not enough to merit an instruction on a lesser included offense. Hampton, 109 S.W.3d at 441; Skinner, 956 S.W.2d at 543. The evidence here shows appellant directed the activities of L.D., who in turn prostituted herself and relinquished all earned money to appellant. L.D. engaged in prostitution in exchange for shelter and safety, she gave all earned money to appellant, appellant bought L.D. a cell phone and directed her to advertise her services on the internet, appellant told L.D. how and where to prostitute, and appellant refused L.D.'s requests to stop working. See, e.g., Cotton v. State, No. 05-95-01070-CR, 1997 WL 331008, at *4 (Tex. App.-Dallas June 18, 1997, pet. ref'd) (not designated for publication). Appellant's argument about L.D.'s previous prostitution does not lead to a different conclusion. The offense of compelling prostitution "does not require that the victim be committing prostitution for the first time." Jordan v. State, No. 05-91-00101-CR, 1992 WL 33171, at *2 (Tex. App.-Dallas Feb. 18, 1992, no pet.) (not designated for publication). Furthermore, L.D.'s willingness to prostitute herself before and after her involvement with appellant does not mean he did not cause L.D., "by any means," to commit prostitution. Appellant provided L.D. with the opportunity to engage in prostitution and influenced or persuaded her to do so. See Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App.-Austin 1995, no pet.) (one who provides opportunity for willing minor to prostitute and influences, persuades, or prevails upon her to do so has caused the prostitution). As for appellant's arguments that he did not act alone and, in fact, Moore was the "driving force" behind the relationship with L.D., Moore's involvement does not negate the evidence that appellant caused L.D. to commit prostitution, especially given the jury's instruction on the law of the parties. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2003) (person is criminally responsible for offense committed by conduct of another if he solicits, encourages, directs, aids, or attempts to aid other person to commit offense and acts with intent to promote or assist commission of offense); see also McIntosh v. State, 52 S.W.3d 196, 200-01 (Tex. Crim. App. 2001) ("The party is responsible for the conduct of another because of his level of participation in the offense, even if he was not the proverbial triggerman."). The evidence at trial shows that, independent of Moore's conduct, appellant alone collected money from L.D., communicated with L.D. while working and instructed her to continue working despite her requests to stop, told her where and how to prostitute, and encouraged L.D. to advertise her services on the internet. On this record, appellant has not presented evidence directly germane to the offense of prostitution to warrant an instruction on the lesser included offense. Hampton, 109 S.W.3d at 441; Skinner, 956 S.W.2d at 543. Conclusion
Appellant has failed to show that if he were guilty, he was guilty only of prostitution. Thus the trial court did not err in denying his request for a lesser included offense instruction. We overrule appellant's sole point of error and affirm the trial court's judgment.