Kedrick Nelms v. State ( 2019 )

Affirmed and Memorandum Opinion filed December 3, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00673-CR
KEDRICK NELMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 427th District Court
Travis County, Texas
Trial Court Cause No. D-1-DC-18-904003
MEMORANDUM OPINION
A jury found Appellant Kedrick Nelms guilty of trafficking of a person
younger than 18 years and compelling prostitution. See Tex. Penal Code Ann.
§§ 20A.02(a), 43.05 (Vernon Supp. 2019). The trial court sentenced Appellant to
40 years’ confinement. Challenging the trial court’s judgment, Appellant asserts
two issues addressing the trial court’s admission of certain testimony and the
State’s plea bargain offer. For the reasons below, we affirm.1
BACKGROUND
Complainant was 14 years old when she met Appellant through a mobile
dating site in 2016. Appellant introduced Complainant to a woman named Kirsten,
who talked to Complainant about posting her pictures online to solicit prostitution.
Shortly thereafter, Complainant traveled to Austin and San Antonio with
Kirsten and another woman named Bria. On both trips Complainant and the other
two women engaged in prostitution with men they met through online
advertisements. Complainant was arrested in San Antonio after she was
apprehended by police officers while smoking marijuana. Complainant was
transported to a juvenile detention facility where she was interviewed by senior
juvenile probation officer Eliseo Mata. Complainant initially was not cooperative
with Officer Mata but, after Officer Mata showed Complainant the prostitution
advertisements he found online, Complainant became more cooperative and
provided details regarding her involvement with Appellant, Kirsten, and Bria.
Complainant, Bria, and Officer Mata testified at Appellant’s trial. After the
parties rested, the jury found Appellant guilty of trafficking of a person younger
than 18 years and compelling prostitution. Appellant timely appealed.
ANALYSIS
Appellant asserts (1) the trial court abused its discretion by permitting
inadmissible hearsay testimony into evidence, and (2) he was denied due process
by the State’s failure to communicate a plea bargain offer of eight years’
1
This case was transferred to this court from the Third Court of Appeals by Texas
Supreme Court Transfer Order Misc. Docket No. 18-9083, issued June 19, 2018. Because of the
transfer, we must decide the case in accordance with the precedent of the Third Court of Appeals
if our decision otherwise would have been inconsistent with that court’s precedent. See Tex. R.
App. P. 41.3.
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confinement.
I. Any Error in the Admission of the Challenged Testimony Was
Harmless.
Appellant asserts the trial court abused its discretion by permitting Officer
Mata to testify regarding hearsay statements Complainant made during her
interview at the detention facility. Specifically, Appellant challenges Officer
Mata’s testimony about the following topics: (1) Complainant’s description of
Appellant, where they met, and that she wanted to be in a relationship with him;
(2) Complainant’s descriptions of Kirsten and Bria and their involvement in the
relevant events; and (3) Complainant’s statements regarding the purpose of the
trips to Austin and San Antonio. Presuming it was error to admit this testimony
and that Appellant properly preserved this error for appellate review, we conclude
any error was harmless.
Hearsay is defined as a statement, other than one made by the declarant
while testifying at the current trial or hearing, that is offered into evidence to prove
the truth of the matter asserted. Tex. R. Evid. 801(d). Errors in the admission of
hearsay evidence generally are non-constitutional in nature; therefore, even when
such error is established, it will be disregarded unless it affected a defendant’s
substantial rights. See Tex. R. App. P. 44.2(b); Sandoval v. State, 409 S.W.3d 259,
287 (Tex. App.—Austin 2013, no pet.). An error affects a defendant’s substantial
rights when the error “had a substantial and injurious effect or influence in
determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). The erroneous admission of evidence will not warrant reversal if the
same or similar evidence was admitted without objection at another point in the
trial. Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010).
Here, the evidence imparted in Officer Mata’s challenged statements was
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admitted without objection during other witnesses’ testimony. Complainant
identified Appellant in court as the man she met through a dating application and
said he connected her to Kirsten and Bria, asked her to “make money,” and
“pretended to be [her] boyfriend.” Complainant also testified regarding how she
met Kirsten and Bria and their involvement in the posting of the online prostitution
advertisements. Complainant also described the women’s trips to Austin and San
Antonio and the prostitution they engaged in.
Bria testified that Appellant and Kirsten “intended to engage in prostitution
or pimping together.” Bria discussed meeting Complainant, taking elicit
photographs with Complainant, and posting the pictures on prostitute websites.
Bria also described the Austin and San Antonio trips with Kirsten and Complainant
and said the purpose of the trips was to prostitute and make money. Bria said
Complainant agreed to the trips because she thought Appellant “was going to be
her boyfriend.”
As this recitation shows, the testimony Appellant challenges also was
admitted via other witnesses, namely, Complainant and Bria. Therefore, any error
in the admission of the challenged testimony did not affect Appellant’s substantial
rights and did not have a substantial and injurious effect on the jury’s verdict. See
King, 953 S.W.2d at 271; Sandoval, 409 S.W.3d at 287.
We overrule Appellant’s first issue.
II. The Record Does Not Contain Any Evidence to Support Appellant’s
Claim the State Intended to Offer an Eight-Year Plea Bargain.
In his second issue, Appellant focuses on the parties’ pretrial discussions
regarding plea bargain offers. At Appellant’s November 17, 2017 arraignment, the
State offered to recommend a sentence of 15 years’ confinement in exchange for a
“guilty” plea. Appellant declined the State’s offer.
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At a pretrial hearing held on June 14, 2018, the parties again discussed a
possible plea bargain and Appellant counter-offered with six years’ confinement
for a “guilty” plea. The State rejected Appellant’s counteroffer. When the trial
court inquired about the State’s previous offer, a prosecutor stated: “[t]he State had
offered eight [years] and the offer had expired and there was no counter in the
intervening nine months, ten months.” A second prosecutor told the trial court,
“when we announced ready for trial and everything, the offer that we put on the
record, I believe, was eight years’ TDC.”
Appellant’s trial counsel and the trial court stated they did not have any
recollection of the State’s prior offer. Pressing this point further, Appellant’s trial
counsel stated:
[I]f the State is averring that there was an offer for eight [years], then I
think, as an officer of the court, if the defendant wanted to take that, I
don’t think he ever turned that down on the record. And so therefore,
there might be an error in him not having been able to address the
offer at some time in the past. That’s my only concern. Because I
don’t remember the offer being eight [years].
Asserting this exchange shows the State intended to offer an eight-year plea
bargain, Appellant contends the State’s failure to communicate this offer to his trial
counsel violated his due process rights.
A defendant in Texas has neither a constitutional nor statutory right to plea
bargain for a particular punishment or a reduced charge. Perkins v. Court of
Appeals for Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 283
(Tex. Crim. App. 1987); Morano v. State, 572 S.W.2d 550, 551 (Tex. Crim. App.
[Panel Op.] 1978). But when a plea bargain is expressly approved by the trial
court in open court, the plea bargain becomes a binding contractual arrangement
between the State and the defendant. See Perkins, 738 S.W.2d at 283; see also
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Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (“It also is well-
settled that a defendant is entitled to insist on the benefit of his bargain.”). After a
plea agreement is approved by the trial court, the defendant may seek specific
enforcement of the agreement if the State fails to keep its end of the bargain. See
Ex parte Rogers, 629 S.W.2d 741, 742 (Tex. Crim. App. 1982) (orig. proceeding).
But here, the record does not show Appellant and the State agreed to an
eight-year plea bargain. The record also does not show that this alleged bargain
was expressly approved by the trial court in open court. At most, the record
suggests the State’s prosecutors were mistaken about the term of confinement
included with the previous offer (which was made seven months earlier) — but this
suggestion alone does not entitle Appellant to seek specific enforcement of the
alleged offer. See Perkins, 738 S.W.2d at 283; Ex parte Rogers, 629 S.W.2d at
742. Without any evidence in the record to support Appellant’s contention, we
overrule his second issue.
CONCLUSION
We overrule Appellant’s issues on appeal and affirm the trial court’s
judgment.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Frost and Justices Wise and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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