Robert Lee Menyweather v. State ( 2014 )

AFFIRM; and Opinion Filed November 18, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01108-CR
ROBERT LEE MENYWEATHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1255747-Y
OPINION
Before Justices FitzGerald, Fillmore, and Stoddart
Opinion by Justice Fillmore
A jury convicted Robert Lee Menyweather of compelling prostitution of a child under the
age of eighteen, and assessed punishment of twenty-seven years’ imprisonment and a $10,000
fine. In four points of error, Menyweather asserts the evidence is insufficient to support the
conviction and the trial court erred by submitting a charge to the jury in the guilt phase that failed
to limit the definition of “knowingly” to the applicable conduct element and included a definition
of reasonable doubt and by submitting a charge to the jury during the punishment phase that
informed the jury about good conduct time. We affirm the trial court’s judgment.
Background
M.D. lived with her mother, her mother’s husband, and four siblings. 1 M.D.’s mother
testified she did “her best” to provide for M.D. and that M.D. had a comfortable place to live,
food, and a safe environment. She attempted to keep M.D. in school and to discipline M.D.
However, in 2011, M.D. began having problems in school and began running away from home.
M.D.’s mother thought M.D. ran away from home because she wanted “to do what she want to
do.” In early 2012, when she was fifteen years old, M.D. ran away from home. 2
Aquesha Hutchinson, who was twenty-three years old at the time of trial, testified that
she had known Menyweather since she was nineteen years old. Hutchinson lost contact with
Menyweather and, at some point, became a prostitute. Approximately a year later, Hutchinson
saw Menyweather again and they agreed to work together. Menyweather’s role was to provide
protection in case Hutchinson got “into a jam” with a customer. Hutchinson would give the
money she earned to Menyweather, and he would use it to pay for her and her children’s needs,
such as food and clothes. In March 2012, Octavia Williams and M.D. began working for
Menyweather as prostitutes. Hutchinson and Williams testified that both M.D. and her mother
told them M.D. was nineteen years old. Hutchinson did not believe that she, Menyweather, or
Williams compelled or forced M.D. to engage in prostitution.
Williams testified that in March 2012, she was eighteen years old and was having a
difficult time getting a job. A friend referred her to Menyweather as someone who could “help
[her] out a little bit.” Williams knew her friend was referring to having sex for money. Williams
met Menyweather, who also went by “Stash,” and Hutchinson at a hotel and agreed to become a
prostitute. Williams understood that Menyweather would be her protector and she would give
1
The record is not clear whether M.D.’s mother’s husband was also M.D.’s father.
2
M.D. ran away again approximately two months before trial, and her mother believed she was in California. M.D. was not available to
testify at trial.
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the money she earned to him. Williams testified it was her decision to engage in prostitution.
Neither Menyweather nor Hutchinson forced her to engage in prostitution, and she could have
stopped at any time.
According to Williams, Hutchinson taught her the “rules” of prostitution. Either
Menyweather or Hutchinson posted an advertisement for Williams on the internet that included
pictures of her in her bra and underwear posing in different positions. Menyweather took some
of the pictures and, using her smart phone, Williams took other pictures. Williams’s customers
would contact her on the telephone number provided in the advertisement and meet her at a hotel
room that was rented in either Menyweather’s or Hutchinson’s name.
The first night, Williams had one customer who came to have sex with her. Williams
received $40 for having sex with the person and took the money home with her. Williams
returned several days later because she found the work to be “easy money.” When she returned,
M.D. was with Menyweather and Hutchinson. According to Williams, Menyweather and the
three women traveled around the Dallas area in Menyweather’s car to different hotels. Once
they were at a hotel, they would post advertisements on the internet and arrange to meet
customers at the hotel. Over the next few weeks, Williams saw M.D. having sexual contact with
other people. Further, they sometimes advertised for customers together, and Williams recalled
two instances in which she and M.D. were hired by the same customer. Any money that
Williams or M.D. earned by having sex with their customers was given to either Hutchinson or
Menyweather. If the money was given to Hutchinson, she, in turn, gave it to Menyweather.
According to Hutchinson, Menyweather received the money Williams and M.D. earned
from engaging in prostitution. Menyweather used the money he received from Williams and
M.D. to provide for their needs. Hutchinson saw Menyweather buy Williams clothes. He also
bought M.D. a cellphone, clothes, and other things. According to Williams, Menyweather used
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the money to pay for expenses, such as food, hotel rooms, clothes, and transportation. He also
paid for her to have her hair done.
Hutchinson testified the women had to speak to Menyweather in a certain way and be
respectful to him. If they failed to do so, there would be consequences such as verbal or physical
abuse. Williams testified she gave the money she earned to Menyweather because she had to
and because she did not want him to become angry with her. Williams saw Menyweather hit or
slap both Hutchison and M.D. when he was angry with them. Menyweather also slapped her one
time. Williams testified that, although the slap did not hurt her, Menyweather was serious and it
was not a “playful” slap.
According to Hutchinson, on March 27, 2012, she, Menyweather, and M.D. were sitting
in Menyweather’s car in the parking lot of a hotel. Dallas Police Officer Nick Earwood testified
he was on patrol when he saw three people sitting in a car. Because the hotel had requested the
Dallas police to “keep an eye out” for people loitering on the property, Earwood pulled over to
investigate. After Menyweather gave Earwood permission to search the car, Earwood found a
notebook containing the personal information of a number of people, including names,
addresses, Social Security numbers, phone numbers, and dates of birth. Earwood testified he
arrested Menyweather for being in possession of personal information relating to other
individuals.
Williams and Hutchinson testified that, following Menyweather’s arrest, they, M.D., and
Menyweather’s cousin went to Shreveport, Louisiana to raise money for Menyweather’s bond
and for an attorney. According to Williams, Menyweather did not know the group was going to
Louisiana. While in Louisiana, M.D. and Williams were arrested for prostitution and possession
of marijuana. M.D. was also charged with possession of drug paraphernalia.
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After her arrest in Louisiana, M.D. returned home. M.D.’s mother noticed that M.D. had
the word “Stash” surrounded by stars and a dollar sign tattooed on her right thigh. M.D. did not
have the tattoo before she ran away. M.D. was subsequently interviewed by Detective Michael
McMurray, who was assigned to the Dallas Police Department’s High Risk Victim Unit.
McMurray testified that M.D. appeared to come from a fairly stable home and her parents
provided her with basically everything she needed. It was also his understanding that each time
M.D. ran away from home, she was able to return home when she wanted to do so. From the
interview, McMurray learned the names “Stash,” “Tae,” and “Que.” 3 McMurray began
investigating a human trafficking and compelling prostitution of a child case. Based on
telephone numbers that came up during his investigation, hotel rooms that M.D. identified, and
an arrest in Louisiana, McMurray was able to develop Menyweather, Hutchinson, and Williams
as suspects. McMurray filed charges against both Hutchinson and Williams for compelling
prostitution of a child under the age of eighteen and trafficking persons under the age of
eighteen. Although at the time of trial neither woman had been promised anything by the
prosecutor if they would testify, both women testified they hoped the charges against them
would be dismissed following their testimony.
The jury also heard testimony from Byron Fassett, a sergeant in the Dallas Police
Department’s Child Exploitation Squad. Fassett testified he had been a police officer for thirty-
three years and had specialized in cases involving child sexual abuse and exploitation for twenty
years. According to Fassett, a prostitution enterprise has a hierarchy from a pimp as the head of
the enterprise to the “bottom girl” to the worker. The pimp is the enforcer and will make the
final decisions. The “bottom girl” has the most power behind the pimp. Her role is “to be a
3
The record reflects that “Tae” and “Que” were Williams and Hutchinson, respectively.
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mother, to be supportive, to be a recruiter, to be an educator, to collect the money.” The “bottom
girl” is also responsible for keeping the prostitution enterprise operating if the pimp is in jail.
In Fassett’s experience, many of the young girls who are involved in prostitution are
traumatized or victimized people. They are generally runaways and have nowhere to live. A
pimp or “bottom girl” will meet the girl’s physiological needs of safety, food, and shelter. They
will then seduce the girl with love, affection, and attention. They will control the girl
emotionally and financially and then threaten the girl by withholding affection and attention. In
Fassett’s opinion, a tattoo of the pimp’s name on a girl’s body is a control technique, and the fact
the girl allowed the pimp’s name to be tattooed on her body is an indication of the girl’s
psychological state.
The jury found Menyweather guilty of compelling prostitution of a child under the age of
eighteen, sentenced him to twenty-seven years’ imprisonment, and assessed a $10,000 fine.
Sufficiency of the Evidence
In his first point of error, Menyweather asserts the evidence is insufficient to prove he
caused M.D. to commit prostitution. Menyweather specifically argues the evidence did not
establish he was a “but for” cause of M.D. engaging in prostitution because M.D. had a home to
go to and did not fit the profile, as described by Fassett, of the typical child who was compelled
to engage in prostitution; M.D. chose to engage in prostitution and would have done so even
without his conduct; and Hutchinson’s and Williams’s testimony was not credible because they
hoped the charges against them would be dismissed following their testimony.
We review the sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
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
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doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. 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 v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). As the fact
finder, the jury 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); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012) (“The factfinder exclusively determines the weight and credibility of the evidence.”). We
defer to the jury’s determinations of credibility, and may not substitute our judgment for that of
the jury. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App.
2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal
sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment
for that of the jury”). When there is conflicting evidence, we must presume the factfinder
resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at
326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Evidence is sufficient if
“the inferences necessary to establish guilt are reasonable based upon the cumulative force of all
the evidence when considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at
903.
A person commits the offense of compelling prostitution if he knowingly causes, by any
means, a child younger than eighteen years of age to commit prostitution, regardless of whether
he knew the child’s age at the time of the offense. TEX. PENAL CODE ANN. § 43.05(a)(2) (West
Supp. 2014). Prostitution is offering to engage, agreeing to engage, or engaging in sexual
conduct for a fee, or soliciting another in a public place to engage in sexual conduct for a fee. Id.
§ 43.02(a)(1) (West Supp. 2014). “The actual commission of the offense of prostitution is not a
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prerequisite to the commission of the offense of compelling prostitution.” Davis v. State, 635
S.W.2d 737, 739 (Tex. Crim. App. 1982). 4 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 the prostitution . . . .’” Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App.—Austin
1995, no pet) (quoting State v. Wood, 579 P.2d 294, 296 (Or. Ct. App. 1978)).
Menyweather first contends the definition of causation in Waggoner improperly
considers factors not included in the statutory language and the “but for” test set out in section
6.04(a) of the penal code is the only definition of causation that should be used in determining
whether the evidence is sufficient to support the conviction. 5 However, a person is guilty of
compelling prostitution of a child under the age of eighteen if he knowingly caused the child to
commit prostitution “regardless of the means used.” Tubbs v. State, 670 S.W.2d 407, 408 (Tex.
App.—Dallas 1984, no pet.); see also TEX. PENAL CODE ANN. § 43.05(a)(2). The “means used”
could include providing an opportunity for a child, willing or unwilling, to engage in prostitution
while influencing, persuading, or prevailing upon the child to do so. 6 Accordingly, we cannot
4
See also Williams v. State, Nos. 05-11-01729-CR, 05-12-00007-CR, 2013 WL 3974045, at *5 (Tex. App.—Dallas Aug. 2, 2013, pet.
ref’d) (mem. op., not designated for publication).
5
Section 6.04(a) of the penal code provides:
A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of
the actor clearly insufficient.
TEX. PENAL CODE ANN. § 6.04(a) (West 2011).
6
See Baker v. State, Nos. 05-96-00705-CR, 05-96-00706-CR, 1998 WL 70631, at *2–3 (Tex. App.—Dallas Feb. 20, 1998, pet. ref’d) (not
designated for publication) in which the appellant, who had been convicted of compelling prostitution of a child, asserted the trial court erred by
not charging the jury on “concurrent causation” based on evidence the child was a runaway, a drug user, and asked the defendant to allow her to
engage in prostitution. This Court noted there was no evidence the child would have begun to work as a prostitute but for her relationship with
the appellant and that the child testified the appellant suggested she work as a prostitute, bought her provocative clothing, drove her to a specific
place he had identified for her to work as a prostitute, told her how much to charge customers, and collected money from her that she had earned
“doing tricks.” We concluded the appellant was not entitled to a charge on concurrent causation because there was “no evidence suggesting that
[the appellant’s] conduct alone was clearly insufficient to cause the result of [the child] prostituting herself.” Id. ad *3; see also Williams, 2013
WL 3974045, at *6 (evidence was sufficient to support convictions for compelling prostitution of a child because, although children testified they
chose to prostitute, they also testified they had never prostituted before and appellant taught them “basics” of how to prostitute, provided them
with means to prostitute, bought them things, and collected all money they earned from prostitution); Cotton v. State, No. 05-95-01070-CR, 1997
WL 331008, at *3 (Tex. App.—Dallas June 18, 1997, pet. ref’d) (not designated for publication) (means to compel child to engage in prostitution
can include persuasion).
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conclude Waggoner is inconsistent with the statutory definition set out in section 6.04(a) of the
penal code.
Menyweather next argues the evidence is insufficient to support the conviction because
only Hutchinson and Williams testified about his conduct with M.D. and their testimony was
unreliable because they hoped the charges against them would be dismissed following their
testimony against Menyweather. 7 However, this fact was for the jury to consider in assessing
Hutchison’s and Williams’s credibility and determining the weight to be given their testimony.
Jackson, 443 U.S. at 319; Thornton, 425 S.W.3d at 303. We afford almost complete deference
to the jury’s weight and credibility determinations and are not permitted to substitute our
judgment for that of the jury. See Jackson, 443 U.S. at 319; Thornton, 425 S.W.3d at 303.
Menyweather finally asserts the evidence is insufficient to support the conviction because
M.D. did not fit the profile, as described by Fassett, of a typical child who is compelled to
engage in prostitution. Menyweather specifically argues that M.D. had a stable home to return
to, was allowed to return home whenever she ran away, and ran away so that she could do what
she wanted to do, including engaging in prostitution. However, there is no evidence in the
record that M.D. engaged in prostitution prior to March 2012. Both Hutchinson and Williams
testified that, in March 2012, they and M.D. engaged in prostitution for Menyweather.
Menyweather or Hutchinson posted advertisements on the internet so that customers could
contact M.D. Menyweather provided transportation to various locations at which M.D. engaged
in prostitution. M.D. gave the money she earned to Menyweather or to Hutchinson who, in turn,
gave it to Menyweather. Menyweather used the money to pay for the hotel rooms in which M.D.
7
Menyweather also argues that Hutchinson and Williams had immunity under section 43.06(b) of the penal code and, therefore, were
mistaken in their belief that the charges against them might not be dismissed. Section 43.06(b) provides that:
A party to an offense under this subchapter may not be prosecuted for any offense about which he is required to furnish
evidence or testify, and the evidence and testimony may not be used against the party in any adjuciatory proceeding except
a prosecution for aggravated perjury.
TEX. PENAL CODE ANN. § 43.06(b) (West 2011). The record reflects that both Hutchinson and Williams voluntarily testified.
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engaged in prostitution as well as for food, clothes, a cellphone, and other things for M.D. If
M.D. did not treat Menyweather in the appropriate way, he could verbally or physically abuse
her, and Williams saw Menyweather slap M.D. Finally, during the time she was a runaway in
2012, M.D. acquired a tattoo of Menyweather’s nickname on her thigh which, according to
Fassett, was an indication of the amount of control Menyweather exerted over M.D.
Absent Menyweather’s conduct, M.D. would not have engaged in prostitution on the
occasions testified to by Hutchinson and Williams. 8 Viewing the evidence in the light most
favorable to the verdict, we conclude a rational jury could find Menyweather compelled M.D.,
who was younger than eighteen years of age, to engage in prostitution. See Waggoner, 897
S.W.2d at 512 (evidence that defendant provided contact and meeting, gave child condom and
cellular telephone, drove child to location, provided code to security guard to allow child to enter
premises, and persuaded child to go through with encounter was sufficient to support conviction
for compelling child to engage in prostitution). 9 We resolve Menyweather’s first point of error
against him.
Jury Charge Error
In his second through fourth points of error, Menyweather contends the trial court erred
by submitting a jury charge in the guilt phase that failed to limit the definition of “knowingly” to
the applicable conduct element and included a definition of reasonable doubt and by submitting a
8
See Smith v. State, No. 05-09-01331-CR, 2011 WL 2090256, at *4 (Tex. App.—Dallas May 27, 2011, not pet.) (mem. op., not designated
for publication) (“Furthermore, [the child’s] willingness to prostitute herself before and after her involvement with appellant does not mean he
did not cause [the child] ‘by any means’ to commit prostitution. Appellant provided [the child] with the opportunity to engage in prostitution and
influenced or persuaded her to do so.”).
9
See also Puckett v. State, Nos. 05-04-01472-CR, 05-04-01473-CR, 2005 WL 2436426, at *2–3 (Tex. App.—Dallas Oct. 4, 2005, pet.
ref’d) (not designated for publication) (evidence that defendant told child that she had to have sex with “johns” to stay at hotel, provided child
with cell phone and condoms, and required child to give him all money she earned from prostitution activities sufficient to support conviction for
compelling prostitution of child under age of eighteen); Cotton, 1997 WL 331008, at *4 (evidence defendant provided child with food, clothing,
and lodging in exchange for money she earned from engaging in prostitution, sent child to certain locations where men asked her to have sex for
money, and told child how to prostitute herself was sufficient to support convicting for compelling prostitution of a child); Agyin v. State, Nos.
04-12-00749-CR, 04-12-00750-CR, 04-12-00751-CR, 2013 WL 5864483, at *2 (Tex. App.—San Antonio Oct. 30, 2013, pet. ref’d) (mem. op.,
not designated for publication) (evidence that defendant transported child to several locations to find men for her to have sex with, appropriated
money child received for performing sex acts, and planned to “protect” child “while she did what she did” was sufficient to support essential
elements of compelling prostitution).
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jury charge in the punishment phase that instructed the jury about good conduct time when he
was not eligible to receive it. Menyweather failed to make any of these objections in the trial
court.
Standard of Review
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error exists, we must determine whether
the error caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.
Crim. App. 2005). When, as in this case, the error was not objected to, the error must be
“fundamental” and requires reversal “only if it was so egregious and created such harm that the
defendant ‘has not had a fair and impartial trial.’” Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex .Crim. App. 1985) (op.
on reh’g)). Egregious harm exists when the record shows that a defendant has suffered actual,
rather than merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d 289, 298
(Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 174. Egregious harm consists of error affecting
the very basis of the case, depriving the defendant of a valuable right, or vitally affecting a
defensive theory. Nava, 415 S.W.3d at 298 (citing Cosio v. State, 353 S.W.3d 766, 777 (Tex.
Crim. App. 2011)). We assess harm in light of “the entire jury charge, the state of the evidence
(including the contested issues and the weight of probative evidence), the arguments of counsel,
and any other relevant information revealed by the record as a whole.” Nava, 415 S.W.3d at
298.
Definition of Knowledge
Menyweather asserts the trial court erred by failing to limit the definition of “knowingly”
in the guilt-phase jury charge to the applicable conduct element. There are three “conduct
elements” that can be involved in an offense: (1) the nature of the conduct, (2) the result of the
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conduct, and (3) the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03
(West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim App. 1989). An offense may
contain one or more of these “conduct elements,” which alone or in combination form the overall
behavior that the legislature intended to criminalize, and it is those “conduct elements” to which
a culpable mental state may apply. McQueen, 781 S.W.2d at 603. A trial court errs by failing to
limit the definitions of the culpable mental states to the conduct element or elements of the
offense to which they apply. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995);
Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Ash v. State, 930 S.W.2d 192, 194–
95 (Tex. App.—Dallas 1996, no pet.).
Here, the trial court instructed the jury that a person commits the offense of compelling
prostitution if, “he knowingly causes by any means a person younger than 18 years to commit
prostitution, regardless of whether the actor knows the age of the child at the time the actor
commits the offense.” The trial further instructed the jury that:
A person acts knowingly, or with knowledge, with respect to the nature of his
conduct or to the circumstances surrounding conduct when he is aware of the
nature of his conduct or that the circumstances exist. A person acts knowingly, or
with knowledge[,] with respect to the result of his conduct when he is aware that
his conduct is reasonably certain to cause the result.
Menyweather argues the offense of compelling prostitution is a result-of-conduct offense and
that the trial court erred because it did not limit the definition of “knowingly” to the result of his
conduct. He argues the “contested issue in this case is the element of cause,” and the jury was
required to determine whether he knowingly engaged in conduct reasonably certain to cause
M.D. to commit prostitution. He claims he was egregiously harmed by the complained-about
instruction because it improperly focused the jury on whether he knowingly engaged in conduct
which created circumstances which gave M.D. the opportunity to commit prostitution. The State
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responds that even assuming there was error in the charge, any error was harmless. We agree
with the State.
We must begin the harm analysis by reviewing the jury charge as a whole. The jury was
instructed that a person commits the offense of compelling prostitution if he “knowingly causes”
by any means a person younger than eighteen years of age to commit prostitution. In the
application paragraph of the charge, the jury was authorized to find Menyweather guilty of the
offense only if it found beyond a reasonable doubt that he “knowingly cause[d] [M.D.], a person
younger than 18 years of age, to commit prostitution.” Because “knowingly” was in front of the
word “cause” in both the instruction and application paragraphs, a juror could not mistake the
requirement that “knowingly applied directly to causing another to commit prostitution.” Hill v.
State, 265 S.W.3d 539, 544 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Further, the
charge not only correctly instructed the jury on the substantive law of the case and informed the
jury of what the State was required to prove, but it also correctly addressed the presumption of
innocence and the State’s burden of proof. See Bazanes v. State, 310 S.W.3d 32, 37 (Tex App.—
Fort Worth 2010, pet. ref’d). Accordingly, the jury charge as a whole appears to have cured any
harm. See Hill, 265 S.W.3d at 544. 10
We next consider the state of the evidence, including the contested issues and the weight
of probative evidence. There was no dispute in this case that M.D. was younger than eighteen
years of age and was engaged in prostitution. Rather, Menyweather contested whether he
compelled M.D.’s conduct. In doing so, Menyweather relied on Hutchinson’s and Williams’s
testimony that they chose to engage in prostitution and could have quit working for
Menyweather at any time and that M.D. ran away from home to do what she wanted to do,
including engaging in prostitution, and would have engaged in prostitution even without his
10
See also Williams, 2013 WL 3974045, at *7.
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conduct. On the other hand, the State presented evidence that Menyweather knew the result of
his conduct in posting advertisements, driving M.D. to hotels, and paying for hotel rooms was
that M.D. engaged in prostitution and that Menyweather received all the proceeds from M.D.
engaging in prostitution. The jury was, therefore, required to determine whether Menyweather
knew that the result of his conduct was prostitution. See id. 11
Third, we review the arguments of counsel. In her argument, the prosecutor conceded
that M.D. was not a model child and had agreed to engage in prostitution. The prosecutor
argued, however, that Menyweather caused M.D. to engage in prostitution by providing her
protection, transportation, food, clothes, and a cellphone. Further, Menyweather took the money
that M.D. earned from engaging in prostitution and was physically abusive to her. The
prosecutor argued these actions by Menyweather “caused by any means [M.D.] to prostitute.”
Menyweather’s counsel responded that both Hutchinson and Williams were willing to engage in
prostitution, were not forced to engage in prostitution, and M.D. had not testified about whether
she was compelled to engage in prostitution. His counsel continued by asserting that M.D. had
everything she needed at home and ran away because “she wanted to do what she wanted to do.”
Menyweather’s counsel also attacked Hutchinson’s and Williams’s credibility and emphasized
that their hope the charges against them would be dismissed gave them a motive to “tweak” their
testimony. Both of these arguments urged the jury to decide whether Menyweather knowingly
caused the resulting prostitution. Accordingly, Menyweather was not harmed by the arguments
of counsel. See id. 12
11
See also Williams, 2013 WL 3974045, at *7.
12
See also Williams, 2013 WL 3974045, at *7.
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Finally, we must review any other relevant information, including the record as a whole.
We find nothing in the record to show that Menyweather was harmed by the alleged error in the
jury charge.
We conclude, based on the entire record, that, even if there was error in the definition of
“knowingly” included in the jury charge, Menyweather was not egregiously harmed. We resolve
Menyweather’s second point of error against him.
Definition of Reasonable Doubt
In his third point of error, Menyweather asserts the trial court erred by submitting a
charge to the jury during the guilt phase that contained a definition of reasonable doubt.
Menyweather specifically complains about the instruction in the jury charge that, “It is not
required that the prosecution prove guilt beyond all possible doubt; it is required that the
prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” The court
of criminal appeals has concluded a trial court does not abuse its discretion by giving the
instruction. Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (citing Woods v. State,
152 S.W.3d 105, 114–15 (Tex. Crim. App. 2004)); see also O’Canas v. State, 140 S.W.3d 695,
702 (Tex. App.—Dallas 2003, pet. ref’d) (complained-about instruction “simply states the
legally correct proposition that the prosecution’s burden is to establish proof beyond a reasonable
doubt and not all possible doubt” and does not define “reasonable doubt”). Accordingly, we
resolve Menyweather’s third point of error against him.
Instruction on Good Conduct Time
In his fourth point of error, Menyweather complains the trial court erred by instructing
the jury in the punishment-phase charge about good conduct time. The trial court’s instruction,
which tracked article 37.03, section 4(a) of the code of criminal procedure, reads, in part, as
follows: “Under the law applicable in this case, the defendant, if sentenced to a term of
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imprisonment, may earn time off the period of incarceration imposed through the award of good-
conduct time.” See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2013).
Menyweather does not dispute the instruction tracked the statutory language, but argues that,
because he was statutorily ineligible for good conduct time, see TEX. GOV’T CODE ANN.
§ 508.149(a)(18) (West Supp. 2014), the instruction was an incorrect statement of the law and
misled the jury.
The court of criminal appeals rejected Menyweather’s argument in Luquis v. State, 72
S.W.3d 355 (Tex. Crim. App. 2002). Although the court acknowledged a defendant could claim
the instruction might be misleading and inapplicable to him, it construed article 37.07, section
(4) to be an absolute command that the good conduct time instruction be given to the jury. Id. at
363; see also Sanders v. State, No. 04-13-00487-CR, 2014 WL 4257907, at *3 (Tex. App.—San
Antonio Aug. 29, 2014, no pet. h.). We have similarly overruled this same argument based on
Luquis. See Anderson v. State, No. 05-13-00253-CR, 2013 WL 6870013, at *4 (Tex. App.—
Dallas Dec. 31, 2013, no pet.) (mem. op., not designated for publication); Coppola v. State, No.
05-10-00704-CR, 2012 WL 29318, at *5 (Tex. App.—Dallas Jan. 6, 2012, no pet) (not
designated for publication). Accordingly, the trial court did not err by including the good
conduct time instruction in the jury charge. We resolve Menyweather’s fourth point of error
against.
We affirm the trial court’s judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
Do Not Publish JUSTICE
TEX. R. APP. P. 47
131108F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT LEE MENYWEATHER, On Appeal from the Criminal District Court
Appellant No. 7, Dallas County, Texas,
Trial Court Cause No. F-1255747-Y.
No. 05-13-01108-CR V. Opinion delivered by Justice Fillmore,
Justices FitzGerald and Stoddart
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 18th day of November, 2014.
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