Opinion
NO. 14-20-00041-CR
04-19-2022
Rodnell Herbert TURNER, Appellant v. The STATE of Texas, Appellee
Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee. Mark Hochglaube, Houston, for Appellant. Rodnell Herbert Turner, Pro Se.
Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee.
Mark Hochglaube, Houston, for Appellant.
Rodnell Herbert Turner, Pro Se.
Panel consists of Justices Jewell, Bourliot, and Hassan.
Kevin Jewell, Justice
A jury found appellant Rodnell Herbert Turner guilty of occlusion assault and sentenced him to thirty years’ confinement. In a single issue, appellant asserts that the evidence is legally insufficient to support a finding that the complainant and he were in a "dating relationship" or were "household" members, as required to support his conviction. See Tex. Penal Code § 22.01(b)(2)(B). Because we conclude legally sufficient evidence supports the jury's finding that appellant and the complainant were members of the same household, we overrule appellant's sole issue.
In a cross-issue, the State seeks to modify the judgment to correctly reflect the jury's sentencing verdict, which included a "true" finding on two enhancing paragraphs in the indictment. Finding merit in the State's cross-issue, we modify the judgment accordingly.
We affirm the trial court's judgment as modified.
Background
The State charged appellant by indictment with the felony offenses of compelling prostitution and occlusion assault of a family member. A jury found him guilty of both offenses and sentenced him to twenty-five and thirty years’ confinement, respectively. This court affirmed appellant's compelling prostitution conviction after receiving an Anders brief. See Turner v. State , No. 14-20-00040-CR, 2021 WL 1881284, at *1 (Tex. App.—Houston [14th Dist.] May 11, 2021, no pet.) (mem. op., not designated for publication, per curiam). Today's appeal concerns appellant's occlusion assault conviction. Appellant challenges the sufficiency of the evidence to prove that he and the complainant, Ashley, were dating or were household members. He does not dispute that he assaulted her.
Ashley was a single mother and former drug user when she first began communicating with appellant through an online dating application. When the two met online, Ashley lived in New Orleans with her mother. Previously addicted to methamphetamines, Ashley was cleaning up her life and no longer regularly used drugs. Ashley and appellant texted and spoke daily over approximately two months. Ashley met appellant in person when he drove with her from New Orleans to Picayune, Mississippi to pick up her son from his paternal grandparents. Ashley thought appellant was "the sweetest person you would ever meet" and believed they were starting a romantic relationship. After this road trip, she and appellant continued texting.
Ashley moved out of her mother's home and into her father's home in Mississippi. Ashley also began using drugs regularly again. She and appellant stopped communicating.
After a few months, Ashley's father told her to move out because she was using drugs. She then moved in with her uncle. Ashley began communicating with appellant again. Appellant told her that he had a place for her to stay in Houston and that she could come to Houston to put her life together and get a job. Ashley believed that she could begin a relationship with appellant, so she and her young son came to Houston. When she arrived, she met appellant at the apartment of a woman named Keisha. They went to a motel, where Ashley, appellant, Keisha, and other women "all just hung out that night."
The next day, appellant took Ashley's phone and posted Backpage ads offering Ashley as a prostitute. Appellant made Ashley take her son to Keisha's apartment. Ashley described to the jury how, over the next few weeks, appellant forced Ashley to engage in prostitution, moving with her from motel to motel and taking the money she received for selling sex. Appellant would leave the motel room after Ashley gave him the money men paid to have sex with her, but he would return as soon as each man left. Appellant told Ashley that she could not leave any of the motel rooms without him. Appellant convinced Ashley that Houston was dangerous, so she was afraid to leave. He only permitted Ashley to see her son every few days. Ashley depended on appellant for her needs and ate only intermittently when appellant provided her food. He stayed with her in the motel rooms when she was not actively selling sex, though occasionally they stayed at Keisha's apartment, where Ashley slept on the couch with her son and appellant slept in Keisha's bed with Keisha. According to Ashley, she and appellant were "always" together, whether in a motel or at Keisha's apartment.
Ashley described a violent encounter at the end of the three-week period she spent with appellant. This encounter forms the factual basis of the assault charge. Appellant hit Ashley so hard that her teeth went through the bottom of her tongue. With his hands, appellant lifted Ashley by her throat and held her up, feet dangling, before throwing her to the ground. Nearly passing out, Ashley saw stars and her ears rang.
At some point after this incident, appellant forced Ashley to perform oral sex on him because he was angry with her for failing to attract more prostitution clients. After appellant left the room, Ashley called a family member, who in turn contacted Ashley's mother. Ashley's mother called the police and reported that Ashley had been kidnapped by appellant. Officers came to the motel where Ashley and appellant were staying and arrested appellant.
Ashley initially denied to the officers that appellant had hurt her or forced her into prostitution because appellant had threatened to kill her and her family if she told anyone. The next day, however, Ashley went to the Houston Police Department with her mother. There, Ashley met with Officer Michael Lareau, who worked in the Vice-Human Trafficking Unit, and told him about her experiences with appellant. She also submitted to an examination by a sexual assault nurse examiner. The nurse examiner observed tenderness on Ashley's neck, petechia (red spots or dots) on her neck, areas of tenderness on her shoulder and back, and a "blue, purple, greenish bruise" on her lower leg. For his part, appellant denied having a relationship with Ashley and denied forcing her into prostitution. But when he was arrested, officers found his clothes and personal property in the motel room Ashley used, despite his claim that he was not staying there with her.
The court instructed the jury on the felony offense of assault of a family member – impeding breath. See Tex. Penal Code § 22.01(a), (b)(2)(B). The charge stated correctly the required elements of the offense:
A person commits the offense of assault if the person intentionally or knowingly causes bodily injury to another.
It is a felony offense if:
(1) the assault is committed against a member of the defendant's household, or a person with whom the defendant had a dating relationship; and
(2) if the offense is committed by intentionally or knowingly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth.
...
"Household" means a unit composed of persons living together in the same dwelling, whether or not they are related to each other....
The jury found appellant guilty. The jury also found two enhancing paragraphs in the indictment "true." The jury assessed appellant's punishment at thirty years’ confinement in the Texas Department of Criminal Justice, Institutional Division.
Issue Presented
In a single issue, appellant contends the evidence is legally insufficient to support a finding that he and Ashley were in a "dating relationship" or were "household" members.
Analysis
A. Standard of Review and Applicable Law
In determining whether the evidence is legally sufficient to support a conviction, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia , 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ); see also Braughton v. State , 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume that the jury resolved conflicting inferences in favor of the verdict, and we defer to its determination of the evidentiary weight and witness credibility. See Braughton , 569 S.W.3d at 608 ; Criff v. State , 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The scope of our review includes all the evidence admitted at trial, whether it was properly or improperly admitted. See Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Balderas v. State , 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). 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. See Hooper , 214 S.W.3d at 13.
The State charged appellant with occlusion assault under Texas Penal Code section 22.01(b)(2)(B). A person commits the felony offense of assault against a family member - impeding breath, if the person intentionally or knowingly impedes the normal breathing or blood circulation of another by applying pressure to the other's throat or neck, and the other is a member of the defendant's household or someone with whom the defendant is in a dating relationship. See id. Appellant does not contest that he assaulted Ashley by impeding her breathing or blood circulation by applying pressure to her neck. Appellant complains that the evidence is insufficient to show that he either had a dating relationship with Ashley or that they were members of the same household. See Tex. Penal Code § 22.01(b)(2)(B) ; Tex. Fam. Code §§ 71.0021(b), 71.005. The evidence must be sufficient to show one or the other to support the jury's verdict. See, e.g., Sanchez v. State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) ("When a jury returns a general guilty verdict on an indictment charging alternate methods of committing the same offense, the verdict stands if the evidence is sufficient to support a finding under any of the theories submitted." (internal quotation omitted)). Finding the evidence legally sufficient to prove beyond a reasonable doubt that Ashley and appellant were members of the same household, we do not address whether they also had a dating relationship. See Tex. R. App. P. 47.1.
B. Legally Sufficient Evidence That Ashley and Appellant Were Members of the Same Household
As the court instructed the jury, "household" means "a unit comprised of persons living together in the same dwelling, without regard to whether they are related to each other." See Tex. Fam. Code § 71.005. This is a "low legal threshold." Gomez v. State , 183 S.W.3d 86, 90 (Tex. App.—Tyler 2005, no pet.). Appellant contends that the evidence is insufficient to show that he and Ashley were "household" members because they were never "living together in the same dwelling." According to appellant, he and Ashley had "transient stays together in multiple motels for prostitution purposes," and when not staying in motels, they stayed at Keisha's apartment where Ashley slept on the couch with her child.
We first consider whether the State proved that appellant and Ashley lived together. The terms "living together" or "living" are not defined in the Family Code or the Penal Code, which incorporates section 71.005 by reference, so we must give these terms their ordinary meaning. In determining the ordinary meaning of an undefined word in a statute, we may consider dictionary definitions. See Baird v. State , 398 S.W.3d 220, 228 (Tex. Crim. App. 2013). To "live" means, inter alia , "to dwell or reside" or "to have your home somewhere." See Live, https://www.dictionary.com/browse/live; https://cambridge.org/us/dictionary/ english/live (last visited March 28, 2022). Similarly, another court of appeals has construed these terms to mean "to occupy a home," "to dwell or reside," or "to cohabit." Shah v. State , 414 S.W.3d 808, 812-13 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
Ashley testified that appellant was always with her regardless where they stayed or slept at night. Although the two stayed in various motels and occasionally at Keisha's apartment, Ashley made clear that she and appellant slept under the same roof every night for approximately three weeks. Moreover, they were together constantly during this time period. According to Ashley, appellant only left her alone when she was actively engaged in prostitution. He returned to the motel rooms immediately after the men left. Appellant's personal belongings and clothing were found in the motel room he and Ashley were sharing at the time of his arrest. This evidence is legally sufficient to prove beyond a reasonable doubt that appellant and Ashley were living together for three weeks. See, e.g., id. (legally sufficient evidence showed defendant and complainant were living together when defendant had moved personal items into complainant's apartment, "set up camp" there, was staying there "every night" and "never left"); Word v. State , No. 11-03-00403-CR, 2005 WL 994690, at *3 (Tex. App.—Eastland Apr. 28, 2005, pet. dism'd) (not designated for publication) (holding evidence sufficient to prove that defendant and complainant were members of same household based upon, inter alia , victim's testimony that defendant was at her apartment "all the time").
Next, we consider whether the evidence shows that appellant and Ashley lived together in the "same dwelling." The term "dwelling" likewise is undefined, so we also give this word its ordinary meaning. See Baird , 398 S.W.3d at 228. "Dwelling" is defined as "a shelter (such as a house) in which people live," or "a building or place of shelter to live in." See Dwelling, https://www.merriam-webster.com/dictionary/dwelling; https://www.dictionary.com/browse/dwelling (last visited March 28, 2022). Under these definitions, a motel qualifies as a "dwelling" because motels constitute "shelters" or "buildings" in which people can live. Appellant does not dispute that an apartment is a "dwelling." Appellant's argument suggests that the "transient" nature of his and Ashley's cohabitation precludes a finding that they lived together in the same dwelling; however, nothing in the Family Code requires a particular length of time, or particular dwelling, for one to live with another to qualify as a household. See Hamilton v. State , No. 06-20-00028-CR, 2020 WL 2201688, at *1 (Tex. App.—Texarkana May 7, 2020, no pet.) (mem. op., not designated for publication). Though appellant and Ashley did not stay in the same physical building consistently during the relevant period, it is undisputed that they stayed together in the same dwelling each day and night for three weeks.
Household status is, as mentioned, a low threshold in the present context, and courts have adopted a flexible approach to determining whether two individuals qualify as household members under the Family Code. In a key example, a defendant and a complainant, both homeless, were determined to be household members even though they lived at an abandoned car wash at the time of the assault in question. See Dixon v. State , No. 05-09-00901-CR, 2010 WL 2180371, at *4 (Tex. App.—Dallas June 2, 2010, no pet.) (not designated for publication). And a couple living together at the defendant's mother's house for a few months when the defendant assaulted the complainant were likewise members of the same household. See Manning v. State , 112 S.W.3d 740, 745-46 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd).
Viewing the above evidence in the light most favorable to the jury's verdict, a rational juror could have found beyond a reasonable doubt that appellant and Ashley lived together in motel rooms and Keisha's apartment, continuously cohabitating, from the time Ashley came to Houston until appellant's arrest three weeks later. This is legally sufficient evidence that Ashley and appellant were "living together in the same dwelling" and thus members of the same household at the time he assaulted her. See, e.g., Shah , 414 S.W.3d at 812-13 (legally sufficient evidence that defendant and complainant lived together in same dwelling when defendant moved personal items into complainant's apartment, "set up camp" there, stayed there "every night" and "never left"); Dixon , 2010 WL 2180371, at *3-4 (homeless couple living together in office of abandoned car wash were members of same household); Word , 2005 WL 994690, at *3 (holding evidence sufficient to prove that defendant and complainant were members of same household based upon, inter alia , complainant's testimony that defendant spent five nights a week at her house and she "somewhat" considered him to be living with her).
We overrule appellant's sole issue. Because the evidence is legally sufficient to support a finding that appellant and Ashley were members of the same household, we need not consider whether there is sufficient evidence to show that Ashely and appellant were in a dating relationship. See Tex. R. App. P. 47.1.
C. Findings on Enhancement Paragraphs
In a single cross-issue, the State asks that we modify the judgment to accurately reflect the jury's verdict, which included a "true" finding on both enhancement paragraphs. The indictment contained two enhancement paragraphs, which if found true, provided a first-degree sentencing range. See Tex. Penal Code § 22.01(b-3) (raising occlusion assault to a second-degree felony when there has been a previous conviction for family violence assault); id. § 12.42(b) (raising the second degree to a first degree when the defendant has a final felony conviction for an offense other than a state jail felony). Appellant pleaded "not true" to both enhancement paragraphs, but the jury found both enhancements true. The judgment properly reflects the plea and determination on the first enhancement, but erroneously states "N/A" for the second enhancement.
Finding merit in the State's request, we modify the trial court's judgment to reflect appellant's "not true" plea to the second enhancement paragraph and the jury's finding of "true" to this paragraph. See Tex. R. App. P. 43.2, 43.6 ; French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (court has authority "to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source"); Bernard v. State , 401 S.W.3d 145, 150 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
Conclusion
Having overruled appellant's legal sufficiency challenge, we affirm the trial court's judgment as modified.