Opinion
No. 05-11-00060-CR No. 05-11-00061-CR No. 05-11-00062-CR
07-16-2012
SENRICK SHERN WILKERSON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 16, 2012.
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No.'s F08-60213-J, F10-01183-J, F10-01184-J
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
A jury convicted appellant of compelling prostitution, sexual assault of a child, and sexual performance of a child, and the trial court sentenced him to eight years' imprisonment for each offense. In nine issues on appeal, appellant argues the evidence is insufficient to support his convictions, the trial court erred in admitting certain evidence and in failing to include the complete application paragraph in the jury charge. Finding no reversible error, we affirm the trial court's judgments.
Background
D.A., the complainant, had been kicked out of her home on over twenty occasions and stopped attending school on a regular basis. In April 2008, D.A. was thrown out of her home again. D.A. was sixteen years of age at the time. A friend told her she could stay with him, so D.A. took a bus to downtown Dallas. When D.A. arrived downtown, she learned that she would have to take a separate bus to reach her destination. D.A.telephoned the person with whom she intended to stay, but he did not answer his phone.
D.A. testified she was sad and scared and had no options. At some point, a man approached and sat down next to her. D.A. and the man spoke and she used his phone to contact her friend, again to no avail. D.A. told the man she was nineteen years old, and the man told her he could find her work. The man gave D.A. his phone so she could speak with his brother. The brother, appellant, asked D.A. if she was willing to work, though he did not describe the type of work. D.A. replied "yes."
D.A. testified that after she spent the night with appellant's brother, he took her to meet appellant. Although there was conflicting testimony, according to D.A., appellant's brother took her to meet appellant. When they arrived at their destination, appellant introduced himself to D.A. and told her to get inside his truck. She then accompanied him while he got a pedicure. Appellant told D.A. that he had a studio and when she started working and making money, she would be able to buy better clothes, and get her hair and nails done.
D.A. testified that appellant took her to his home. Appellant's "baby mama," Terri Jennings, and another "girl" named Joy lived with appellant. D.A. testified that Jennings showed her around the house and the room where she would stay. Jennings told D.A. that she would be working at the studio, and took her to appellant's business, Ecstacy Suites. Jennings stated that "they" have sex with people at the studio, but that if anyone asked, D.A. should say it was a massage studio. D.A. told Jennings that she was afraid, and Jennings responded that D.A. would be fine, and that she was D.A.'s age when she started doing the same type of work. On the way to the studio, they stopped at a drug store to buy some condoms.
When they arrived at the studio, Jennings explained the rules. Jennings said that when a customer came in, the girls would line up. When the customer selected the girl of his choice, the girl would take the customer to one of the available rooms. When the customer stated what he wanted, he would be quoted a price from a sign hanging in the studio's break room. The customer then paid, and the money would be placed on the table. When the "date" was over, the condom was to be placed back in its wrapper and brought to Jennings.
Appellant subsequently arrived at the studio and asked D.A. how she was doing. D.A. testified that because she was afraid of getting hurt, she replied that she was doing okay. Appellant asked D.A. if she had ever done anything "like this" before, and D.A. replied "no."
D.A. testified that she went to the studio frequently, and that she typically was selected by a customer twice a day and performed a variety of sexual acts, including sexual intercourse and fellatio. On each occasion, the customer left money as payment. D.A. testified that when she received money from the customers, she would always give the money to Jennings.
After approximately two weeks, D.A. decided to leave the studio. D.A. testified that appellant learned of her plan, and called her to threaten her. D.A. left anyway, and was arrested in Fort Worth for shoplifting a few days later. Although D.A. told the officers she was a runaway, she failed to mention her tenure at Ecstacy Suites. After she was arrested, appellant voiced her allegations against appellant. In addition to a prior charge for assault, D.A. was charged with shoplifting and "running away," and placed in a juvenile facility.
At some point, D.A. met with Dallas police detectives to discuss her allegations against appellant. D.A. drew diagrams of appellant's home and of Ecstacy Suites, and engaged in "one-party-consent" calls with appellant and Jennings. During the calls, D.A. attempted to convince appellant to allow her to return to work and to comment on their sexual encounter, and addressed appellant as "Daddy."Although appellant did not admit to having sex with appellant, testimony at trial established the calls evidenced a "victim- trafficker relationship." The recording of the calls was admitted into evidence at trial, and a transcript of the recording was admitted for record purposes.
Testimony at trial established that a one-party-consent call is an investigative technique in which a victim calls a suspect to "add corroboration or validation to the allegations."
The police retrieved discarded garbage from appellant's home and a bin outside Ecstacy Suites, and took it to police headquarters to examine. Later, the police executed a search warrant for appellant's home and Ecstacy Suites, and seized numerous items, including tip envelopes, business cards, a log-in sheets, and files and paperwork relating to the business.
Appellant testified at trial and stated that he never had sex with D.A., did not know her true age, and did not force her to engage in prostitution. He also claimed that he never instructed the models at the studio to have sex with customers, and he never provided them with condoms.
Upon conclusion of the trial, the jury convicted appellant of compelling prostitution, sexual assault of a child, and sexual performance of a child. The trial court sentenced him to eight years' imprisonment for each offense. This appeal followed. Analysis
The Jury Charge
In a portion of his second issue and in his fifth issue, appellant complains about the jury charge. In particular, appellant asserts the charge is defective because the trial court failed to include a complete application paragraph in the charge. Appellant also maintains that because the charge does not contain an application paragraph reciting the elements of the offense as charged in the indictment, the evidence is insufficient to support his conviction for compelling prostitution.
In the version of the charge filed as part of the clerk's record, the application paragraph begins at the end of a page and stops mid-sentence. Neither the sentence nor the application paragraph are continued on the next page. Instead, the next page that appears is the verdict sheet. Rather than avail themselves of the opportunity to request a supplemental record as afforded by Tex. R. App. P. 34.5, the parties elected to argue about who has the burden to include a complete jury charge in the record. But as the Court of Criminal Appeals has observed, "the current rules do not assign a burden to either party." Rowell v. State, 66 S.W.3d 279, 281 (Tex. Crim. App. 2001). Significantly, the court has also observed that "it is no longer necessary, or sufficient, for a party to argue the appeal should be decided by hypothesis about missing parts of the record." Id. at 282.
Nonetheless, the State maintained we should infer that a complete jury charge was given to the jury because there is a notation in the reporter's record indicating the charge was read, and neither party objected. The State further noted there was no inquiry from the jury to suggest that the charge they were given ended mid-sentence. While we do not disagree that it was plausible to infer the jury was given a complete charge, given the state of the record on submission, the opposite inference was also plausible. The magnitude of the issue demanded more than the rank speculation in which the parties sought to have us engage.
Therefore, this court, on its own motion, directed the trial court to determine the status of the charge and provide us with a supplemental record. See Tex. R. App. P. 34.5(c). The trial court conducted a hearing and found that neither the clerk nor the parties were able to locate a complete copy of the charge. Accordingly, the court concluded that the original jury charge had been lost or destroyed. But the court also determined that a complete jury charge was read and given to the jury prior to deliberations. Because the record now reflects that the jury was provided with a complete jury charge, appellant's issues concerning the charge are overruled. See e.g., Pietrzak v. State, No. 05-01687-CR, 2002 WL 31957883 at *4 (Tex. App.-Dallas Jan. 23, 2003, no pet.) (not designated for publication) (concluding reversal not required where record sufficiently showed jury properly charged).
Sufficiency of the Evidence
In three issues, appellant asserts the evidence is legally insufficient to support his convictions. Specifically, appellant argues the evidence does not establish that he committed any of the crimes for which he was convicted - sexual assault of a child, compelling prostitution, and sexual performance by a child. According to appellant, D.A.'s credibility was "extremely deficient" and the evidence shows her testimony was fabricated because she resented appellant.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); see also Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn from the evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (stating appellate court may not re- evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder). Thus, when there is conflicting evidence, we must presume the fact finder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at 326.
Under the statute in effect at the time of the offense, the elements of compelling prostitution of a minor were: knowingly causing, by any means, a person younger than seventeen years to commit prostitution. See Tex. Penal Code Ann. § 43.05(a)(2) (West 2009). Prostitution includes offering to engage, agreeing to engage, or engaging in sexual conduct for a fee. Id. § 43.02(a)(1). "[T]he actual commission of the offense of prostitution is not a prerequisite to the commission of the offense of compelling prostitution." Waggoner v. State, 897 S.W.2d 510, 513 (Tex. App.-Austin 1995, no pet.) (citing Davis v. State, 635 S.W.2d 737, 739 (Tex. Crim. App. 1982)). Rather, "one who provides opportunity for a willing minor to engage in prostitution and influences, persuades, or prevails upon her to do so has . . . caused prostitution." Id. at 512. A person commits the offense of sexual performance of a child, if, knowing the character and content thereof, he employs, authorizes or induces a child younger than eighteen years' of age to engage in sexual conduct or sexual performance. Tex. Penal Code Ann. § 43.25(b) (West 2005). Sexual conduct means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sad- masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breasts below the top of the areola. Id.§ 43.25(a)(2). The evidence must show that the defendant's conduct brought about the complainant's sexual conduct through his persuasion or influence. See Bell v. State, 326 S.W.3d 716, 720-21 (Tex. App.-Dallas 2010, pet. dism'd).
The statute has subsequently been amended. See Tex. Penal Code Ann. § 43.05(a)(2)(West Supp. 2011).
The evidence shows that appellant was the president or owner of Ecstacy Suites, and supports an inference that the business of the studio was prostitution. One of the detectives who investigated the case testified that the one-party consent call between D.A. and Jennings demonstrated that Jennings served as the "bottom girl." The detective explained that, next to the trafficker, the bottom girl is the most powerful person in a trafficking organization. The bottom girl is the most loyal to the trafficker and can manage the operation when the trafficker is not available. Jennings testified that appellant was D.A.'s boss at the studio. Appellant was the one who suggested that Jennings take D.A. to the studio. Jennings told D.A. that they had sex with people at the studio, and explained the process to her, including how customers selected a girl, the payment process, and the way condoms were to be disposed of after a "date." Appellant spoke with D.A. about how much money she would be making working for him. During one of her one-party-consent calls with appellant, D.A. told appellant that she and the other girls were his "hoes," not his wife. Appellant responded, "Exactly."
The advertisements for Ecstacy Suites, found in magazines known to run prostitution advertisements, showed girls in suggestive poses and used sexual innuendo. One of the investigating detectives testified that these publications were commonly available at topless bars and adult bookstores. One of the advertisements included a picture of an Ecstacy Suites model making sexual contact with herself. The detective testified that if someone were to pay to observe this, it would constitute prostitution. Business cards for the studio featured scantily clad women in suggestive poses. Appellant told D.A. he needed photographs of her so he could include her in advertisements, and appellant was present when the photographs of D.A. were taken. Jennings testified that appellant made and paid for all of the advertisements at the studio. Appellant also told D.A. that she would be "put on the internet for out calls." In addition, D.A. was also photographed by Jennings at appellant's house.
An "out call" involves a "date" outside the studio.
D.A. testified that she performed and was paid for sexual acts at the studio. D.A. also testified about the studio procedures, including the fact that she turned the money over to Jennings after a customer paid for her services. D.A. further testified that at some point, she had a conversation with appellant about her age, and told him she was sixteen years' old. Appellant responded that he would obtain some identification for her.
After viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant caused D.A., a girl under the age of seventeen, to engage in sexual performance and prostitution. See Jackson, 443 U.S. at 319. Appellant's arguments about D.A.'s troubled past and allegedly inconsistent testimony are unavailing. These were factors for the jury to consider in assessing D.A.'s credibility and in determining the weight to give her testimony. We are not permitted to reevaluate the weight and credibility of D.A.'s testimony or substitute our judgment for that of the jury. See Williams, 235 S.W.3d at 750. Appellant's argument that the evidence linking him to D.A. is merely circumstantial is also unavailing because circumstantial evidence is no less probative than direct evidence and alone may be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
The evidence is also sufficient to support appellant's conviction for sexual assault of a child. To obtain a conviction for sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the female sexual organ or mouth of D.A., a child, by appellant's sexual organ. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2010). The testimony of a child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
Here, although appellant denied having sex with her, D.A. testified otherwise. According to D.A., on one occasion when the two of them were at appellant's home, appellant indicated that he wanted to engage in sexual intercourse with her to see what sex with her was like. Appellant placed D.A. on his bed, turned her around, and pulled her pants off. D.A. told appellant she did not feel comfortable with the idea, but appellant stated that he would hurt her if she screamed or woke up his son. Appellant pushed down his pants and grabbed her. D.A. stated that appellant was rough with her; one of his hands was on her neck, and the other was on her waist. Appellant penetrated D.A.'s sexual organ with his and "pulled out" before he ejaculated. Appellant told her not to tell the other girls what occurred. Thus, despite conflicting testimony, the evidence is sufficient to support appellant's conviction for sexual assault of a child. Appellant's first, third, and fourth issues are overruled.
Admission of Evidence
In his sixth, seventh, eighth and ninth issues, appellant complains the trial court erred in admitting evidence that was irrelevant and unfairly prejudicial. In particular, appellant complains about the admission of numerous photographs of items seized from a trash can outside of Ecstacy Suites, photographs of the web site for Ecstacy Suites, advertisements for Ecstacy Suites, and a business card for Ecstacy Suites. Appellant does not address each item of evidence individually, but rather collectively asserts the enumerated items should not have been admitted. Our analysis is limited accordingly.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. "Relevant evidence"means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence that is not relevant is inadmissable.Tex. R. Evid. 402.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Unfair prejudice refers to the likelihood that the jury woulddecide the case on an improper basis, commonly, though not necessarily, an emotional one. See Gigliorianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
Having reviewed the evidence, we cannot conclude it was not relevant to two of the charged offenses - compelling prostitution and sexual performance of a child. The photographs about which appellant complains depicted items retrieved from the garbage at Ecstacy Suites, including used condoms and wrappers, baby wipes, high heels, and money drop envelopes. Testimony at trial established that such items are commonly associated with prostitution. The fact that the police retrieved these items makes it more probable that the studio's customers were paying for sexual favors rather than lingerie modeling or massages. The suggestive photographs of scantily clad women and language suggesting sexual activity found in the advertisements and on the Ecstacy Suites further enhance this probability. The discovery of the money drop envelopes specifically corroborated D.A.'s testimony about the operation of the studio.
Appellant insists the evidence was not probative of the charges as related to D.A. We disagree. Although the evidence may not have pertained directly to D.A., proof of the activities at Ecstacy Suites was relevant to whether, in employing D.A. at the studio, appellant intended that D.A. engage in sexual performance and prostitution.
We are similarly unpersuaded by appellant's global assertion that the evidence had a tendency to confuse or distract the jury and caused them to decide the case on an improper basis. There has been no showing of unfair prejudice, or any significant disparity between the danger of unfair prejudice and the probative value of the evidence. Accordingly, we cannot conclude the trial court's decision to admit the evidence was outside the zone of reasonable disagreement. Appellant's sixth, seventh, eighth, and ninth issues are overruled.
Appellant also contends the evidence was cumulative, but did not assert this as a basis for exclusion of the evidence at trial.
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Having resolved all of appellant's issues against him, we affirm the trial court's judgments.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110060F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SENRICK SHERN WILKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00060-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F08- 60213-J).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 16, 2012.
MARTIN RICHTER
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SENRICK SHERN WILKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00061-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F10- 01183-J).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 16, 2012.
MARTIN RICHTER
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SENRICK SHERN WILKERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00062-CR
Appeal from the Criminal District Court No. 3 of Dallas County, Texas. (Tr.Ct.No. F10- 01184-J).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 16, 2012.
MARTIN RICHTER
JUSTICE