Kojuan J Miles v. State , 2015 Tex. App. LEXIS 6048 ( 2015 )

Affirmed as Modified and Opinion filed June 16, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00154-CR
NO. 14-14-00155-CR
KOJUAN J MILES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause Nos. 1323841, 1390391
OPINION
A jury found appellant Kojuan Miles guilty of compelling prostitution and
sexual assault of the complainant, a fifteen-year-old girl. The jury assessed
punishment at twenty-three years’ and seven years’ confinement, respectively, and
the trial court cumulated the sentences. Appellant contends the trial court erred by
excluding relevant evidence from the complainant’s Facebook page during both
phases of the trial, admitting irrelevant expert testimony during the guilt phase of
the trial, cumulating his sentences, and signing judgments with unnecessary
verbiage describing his offenses.
We overrule appellant’s evidentiary issues and his issue concerning the
verbiage of the judgments. In an issue of first impression, however, we hold that
the trial court erred by cumulating sentences that resulted from a single criminal
action under Section 3.03(b) of the Texas Penal Code for convictions of
compelling prostitution and sexual assault of a child. We modify the trial court’s
judgment in the compelling prostitution case to delete the cumulation order, affirm
that judgment as modified, and affirm the trial court’s judgment in the sexual
assault case.
I. BACKGROUND
The complainant, Amy, 1 testified that she lived with at least seven relatives
in a single motel room in North Carolina. She met appellant in mid-October 2011
when she was fifteen and he was twenty-two. He was the cousin of her friend. He
took Amy out to eat at a fast-food restaurant and was teaching her how to drive.
She thought he was nice and cute, and he made her “feel like somebody.”
Amy told appellant about her difficult family situation, and he suggested that
she leave with him for Los Angeles. She wanted to go, so she packed some clothes
and left with him the following morning. Amy hoped that appellant would be her
boyfriend. She thought appellant would take care of her.
They drove for two days, and at some point Amy told appellant that she
wanted to go home. He said they were too far and could not turn back around.
She felt trapped. When they arrived at a truck stop in Houston, appellant asked
Amy to perform oral sex on him. She complied. Then they stayed overnight at a
1
We use a pseudonym for the child complainant.
2
house in Houston. He shook her awake at night and had sex with her—he put his
penis inside her vagina.
The next morning, appellant told Amy that they did not have any more
money for food or gas, and they had nowhere to stay. Amy testified, “[S]o he said
that I would have to sell my body.” She did not want to do it, but she complied
because she was thinking “how we going to eat and stuff.” He told her to take off
her panties so that it would be easy and she would not have to take them off when
she got to a guy. He told her to not go for the young guys and to go for the older
guys and ones with accents. He told her that when a car pulls up, she should ask
them if they want a date and get in the car. He told her to charge $60 for sex and
$50 for head, i.e., oral sex. He also told her that if she were caught by police, she
should use her sister’s name and date of birth because the sister was eighteen years
old.
Appellant made contact with another prostitute who was “walking” like
Amy. Appellant told Amy that this other woman was going to be Amy’s “wifey.” 2
Amy testified that she had sex eight times, although she told a doctor at the
Children’s Assessment Center (CAC) that she had sex with three people. After
being paid, Amy would call appellant to come pick her up. He would tell her,
“Give me the bread,” i.e., money, and Amy gave it to him.
At 3:40 a.m. the following morning, appellant and Amy were sitting in a
parked car in an area known for prostitution—it was a “track” where prostitutes
walk the streets. Houston Police Department officers suspected prostitution
activity and investigated further. Because Amy looked “very young” and an
officer suspected her to be underage, a juvenile sex crimes officer, Catherine
Bartels, was called to the scene. Bartels took Amy to the CAC for an interview
2
A police officer testified that sometimes prostitutes call each other “wives.”
3
and evaluation. Amy initially gave the officers her sister’s name but later
acknowledged her real identity and discussed her sexual activity.
Appellant was charged with sexual assault and compelling prostitution. A
jury found him guilty on both counts and assessed punishment at seven years’
confinement for sexual assault and twenty-three years’ confinement for compelling
prostitution. The trial court ordered the compelling prostitution sentence to run
consecutively after the sexual assault sentence.
II. EXCLUSION OF FACEBOOK EVIDENCE
In his second issue, 3 appellant contends the trial court abused its discretion
during the guilt and punishment phases of his trial by excluding evidence
consisting of Amy’s posts on Facebook and related testimony. The trial court
excluded twenty-four pages from Amy’s Facebook page. The posts were from
September 2012 through the date of trial, but Amy testified outside the jury’s
presence that the posts were similar to her posts from the time when she met
appellant. Appellant contends the images and comments show Amy to be a
“sexualized teenager” because she posted photos of herself “in various states of
undress” 4 and proclaimed in one post, “I wanna have sex now  horny asFFFFF.”
Appellant also contends the posts show Amy’s “experiments with sexuality” and
preoccupation with money. 5
3
We address appellant’s issues in a different order than presented in his brief because of
the relief sought for each issue.
4
One photo shows Amy wearing what appears to be a bra or bathing suit top. Other
photos show Amy’s midriff.
5
Two photos show a number of twenty-dollar bills spread out. Other posts show Amy
posing with and kissing a person who appears to be female with a comment, “I got her back she
got my front she my king queen . . . ♥” Another photo is of Amy with the comment, “Fav pic
Rate Tbh && @__Trulesbian IG.” The fictitious name Amy used for her account included the
middle name “SoHomo.”
4
The State contends that the evidence was irrelevant during both phases of
the trial. After reviewing general standards for relevancy, we address the
admissibility of the Facebook evidence in each phase separately.
A. Relevancy Standards
We review a trial court’s ruling to exclude evidence under an abuse-of-
discretion standard. Resendiz v. State, 112 S.W.3d 541, 544 (Tex. Crim. App.
2003). We will not reverse the trial court’s ruling unless it falls outsize the zone of
reasonable disagreement. Id.
“Generally, all relevant evidence is admissible.” Layton v. State, 280
S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing Tex. R. Evid. 402). Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tex. R. Evid. 401 (1998, repealed 2015). This
definition is “necessarily a broad one.” Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1990) (op. on reh’g). Even “marginally probative” evidence
should be admitted if “it has any tendency at all, even potentially, to make a fact of
consequence more or less likely.” Fuller v. State, 829 S.W.2d 191, 198 (Tex.
Crim. App. 1992).
To determine whether evidence is relevant in a particular case, courts must
“examine the purpose for which the evidence is being introduced.” Layton, 280
S.W.3d at 240. There must be a “direct or logical connection between the actual
evidence and the proposition sought to be proved.” Id. We may reverse a trial
court’s ruling on relevancy only when there is no room for disagreement that in
common experience a particular inference is available. See Montgomery, 810
S.W.2d at 391.
5
B. Guilt Phase
Appellant argues the evidence was relevant during the guilt phase of the trial
because (1) “[e]vidence of [Amy]’s sexuality undercut the State’s claim that she
was a hapless victim that was compelled into prostitution and is therefore probative
of the defense’s claim of fabrication”; and (2) the evidence “diminishes [Amy]’s
credibility and is likely to create a reasonable doubt in the jury’s mind that Mr.
Miles sexually assaulted [Amy].” We disagree.
The trial court reasonably could have concluded that the Facebook evidence
did not prove Amy’s “sexuality” or any type of propensity to engage in
prostitution. Further, even if the evidence related to “sexuality,” the trial court
reasonably could have concluded the evidence did not make it less likely that
appellant compelled her to prostitution. Compelling prostitution of a minor
requires the defendant to cause “by any means” a child to commit prostitution; the
compulsion need not be “by force, threat, or fraud.” See Tex. Penal Code Ann.
§ 43.05(a); see also Waggoner v. State, 897 S.W.2d 510, 512 (Tex. App.—Austin
1995, no pet.) (sufficient evidence by merely providing the opportunity for a child
to engage in prostitution). To the extent reasonable people could disagree about
whether Amy’s Facebook posts directly and logically informed the issue of
whether she fabricated events or engaged in prostitution without any assistance
from appellant, we must still defer to the trial court’s ruling under the abuse-of-
discretion standard. See Montgomery, 810 S.W.2d at 391.
We also cannot conclude that the trial court abused its discretion by ruling
that the Facebook evidence would not have diminished Amy’s credibility with
respect to the sexual assault. Appellant has not demonstrated how the Facebook
evidence would have diminished Amy’s credibility regarding the sexual assault,
and we do not see any direct or logical connection. Further, even if the evidence
6
showed Amy’s “sexuality” or desire for a sexual encounter, the evidence would not
have had any tendency to prove or disprove a fact of consequence related to the
sexual assault. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (sexual assault
requires that the defendant intentionally or knowingly cause the penetration of the
sexual organ of a child by any means).6
C. Punishment Phase
Appellant argues that during the punishment phase, “the jurors were unable
to properly calculate Mr. Miles’s culpability without viewing the Facebook exhibit
and without hearing the fruits of the cross-examination the exhibit would
engender.” Appellant argues that the trial court’s “failure to permit the defense to
cross-examine [Amy] using her Facebook photos and comments additionally
prevented the defense from arguing that the jurors should not have assigned to Mr.
Miles complete culpability for [Amy]’s alleged acts of prostitution when
determining Mr. Miles’s punishment.” At trial, however, after both sides had
rested during the punishment phase, appellant asked the court to reopen the
evidence as follows:
Judge, we’d request permission to reopen and add into evidence
Defendant’s Exhibit No. 1, which is the same Facebook photos of the
complainant and basically we’re asking out of sort of reciprocity. The
defense — the prosecution has been able to put in Facebook of the
defendant and we would ask that, likewise, the complainant’s
Facebook images be considered in evidence as well.
6
The parties do not address Rule 412 of the Texas Rules of Evidence, but to the extent
the Facebook evidence showed a reputation for past sexual behavior, it would have been
inadmissible. See Tex. R. Evid. 412(a) (1998, repealed 2015). Similarly, to the extent the
Facebook evidence constituted evidence of specific instances of past sexual behavior, appellant
has never argued that one of the listed exceptions to general inadmissibility would apply in this
case. See Tex. R. Evid. 412(b).
7
Neither the State nor appellant called Amy to testify during punishment. The State
objected to the relevance of the Facebook exhibit, and the trial court sustained the
objection. 7
We hold that appellant failed to preserve error.8 To preserve error, an
appellant must have “‘stated the grounds for the ruling that [he] sought from the
trial court with sufficient specificity to make the trial court aware of the
complaint.’” Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)
(alteration in original) (quoting Tex. R. App. P. 33.1(a)(1)). “So it is not enough to
tell the judge that evidence is admissible.” Id. “The proponent, if he is the losing
party on appeal, must have told the judge why the evidence was admissible.” Id.
Further, the complaint to the trial court must comport with the complaint on
appeal, or else no error is preserved. See Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009); see also Reyna, 168 S.W.3d at 177 (“The issue, we said, ‘is not
whether the appealing party is the State or the defendant or whether the trial
court’s ruling is legally ‘correct’ in every sense, but whether the complaining party
on appeal brought to the trial court’s attention the very complaint that party is now
making on appeal.’” (quoting Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.
App. 2002))).
At trial, appellant asked the court to reopen the case and admit the Facebook
exhibit “out of sort of reciprocity.” Appellant did not argue that the evidence was
relevant to appellant’s culpability, nor did appellant ask the trial court to allow
7
Also, appellant objected during the State’s closing argument and again “offer[ed]
Defendant’s Exhibit No. 1, the Facebook images” into evidence. Appellant gave no rationale for
admission. Although the trial court overruled appellant’s objection, it did not rule on appellant’s
request to offer the Facebook evidence at this time.
8
The State did not raise error preservation in its brief on appeal, but the preservation of
error is “a systemic requirement that a first-level appellate court should ordinarily review on its
own motion.” E.g., Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quotation
omitted).
8
Amy to testify. Accordingly, appellant’s complaints on appeal about the relevancy
of the Facebook exhibit to his culpability and the relevancy of Amy’s testimony on
the subject were not preserved for appellate review. 9
Appellant’s second issue is overruled.
III. ADMISSION OF EXPERT TESTIMONY
In his third issue, appellant contends that a “great volume of expert witness
testimony in this case was irrelevant and unrelated to [appellant]’s case and
bombarded the jury with prejudicial ‘background’ information which resulted in an
unfair trial.” The State contends that appellant has waived error by inadequate
briefing (by not citing to the record) and has failed to preserve error for most of the
expert testimony. The State also contends the evidence was relevant.
First, we address the State’s waiver argument. Then, we identify the
evidence for which appellant objected and preserved error. Finally, we address the
relevancy of that evidence under an abuse-of-discretion standard of review.
A. No Briefing Waiver
An appellant’s failure to include citations to the record in the appellant’s
brief may result in waiver of error on appeal. Lacaze v. State, 346 S.W.3d 113,
119 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); see also Tex. R. App. P.
9
We note that appellant has not argued on appeal that the trial court abused its discretion
by refusing to reopen the case, rather than by merely excluding relevant evidence. Under Article
36.02 of the Code of Criminal Procedure, “The court shall allow testimony to be introduced at
any time before the argument of a cause is concluded, if it appears that it is necessary to a due
administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (emphasis added). This statute
has been applied to the punishment phase of a trial. See Rogers v. State, 774 S.W.2d 247, 262–
63 (Tex. Crim. App. 1989), overruled on other grounds by Peek v. State, 106 S.W.3d 72 (Tex.
Crim. App. 2003). For reopening of the case to be necessary to a due administration of justice,
new evidence must be “more than just relevant—it must actually make a difference in the case.”
Peek, 106 S.W.3d at 79. Thus, a trial court does not abuse its discretion by refusing to reopen
the case unless the evidence “would materially change the case in the proponent’s favor.” Id.
9
38.1(i) (argument must contain appropriate citations to the record). The briefing
rules should be construed liberally and are “meant to acquaint the court with the
issues in a case and present argument that will enable the court to decide the case.”
Tex. R. App. P. 38.9
Here, appellant complains about the admission of testimony from three
witnesses, and appellant references relatively short spans of pages—eleven pages
or less—when paraphrasing their testimony. In his reply brief, appellant further
narrows his citations to particular pages within the spans provided in his original
brief. We hold that in the context of this case appellant’s briefing is sufficient to
acquaint the court with the issues and enable the court to decide them. Appellant
has not waived his entire issue by inadequate briefing.
B. Preservation of Error
An appellant must preserve error in the trial court based on the erroneous
admission of evidence by making a specific and timely objection and obtaining a
ruling from the trial court. Lacaze, 346 S.W.3d at 119; see also Tex. R. App. P.
33.1(a). An appellant must object each time evidence is offered unless the
appellant receives a running objection or requests a hearing outside the presence of
the jury. Lacaze, 346 S.W.3d at 119 (citing Dreyer v. State, 309 S.W.3d 751, 754
(Tex. App.—Houston [14th Dist.] 2010, no pet.)).
Appellant failed to object to most of the evidence he now complains about
on appeal. But appellant contends he preserved error regarding all of the
complained-of expert testimony because he obtained a running objection to the
State’s opening argument, and “the trial court gave the State the ‘green light’ to put
on expert testimony.” We disagree with appellant’s contention and with his
characterization of what transpired during opening statements. The following
exchange occurred during the State’s opening argument:
10
[The State]: You’re going to hear from Officer Bartels that the game
is what’s called prostitution but that the way it operates is that young
women are put out on streets —
[Defense Counsel]: Judge, we object. We ask for a running objection
to any commentary that doesn’t apply specifically to this defendant.
The Court: Can y’all come up, please?
(At the bench, on the record)
The Court: Are you going to offer her up as an expert? Is that where
this is coming from?
[The State]: Yeah, she’s an expert.
The Court: Okay. All right. Your objection’s overruled. I’ll give you
a running objection.
[Defense Counsel]: May I have a running objection?
The Court: Of course, of course.
In context, appellant’s “running objection” was to the State’s argument, not
to the admission of evidence. The record does not show that the trial court
understood appellant to be objecting to all expert testimony at this time or that
appellant was requesting a running objection to testimony that might be offered
thereafter. Nor would that be a reasonable interpretation of the exchange. Indeed,
appellant merely asked for “a running objection to any commentary.” If appellant
desired a running objection that extended beyond the opening statement, he needed
to ask for it. See, e.g., Pena, 285 S.W.3d at 464 (noting that an appellant must let
the trial judge know what the appellant wants). Appellant relies on Graham v.
State, in which the Court of Criminal Appeals held that once the defendant
obtained an adverse ruling, the defendant did not need to object to a rephrased
question immediately following the trial court’s ruling. See 710 S.W.2d 588, 591
(Tex. Crim. App. 1986) (holding that it was clear the trial court gave the State “the
green light” to put on the complained-of evidence). Graham is inapposite.
11
Nonetheless, appellant contends he objected to specific evidence during trial.
Many of his objections were sustained. However, we have reviewed the record
and identified several overruled objections related to appellant’s arguments on
appeal. We address each of those objections in turn. See Lacaze, 346 S.W.3d at
120 (reviewing the admission of testimony that was both (1) referenced in the
appellant’s brief and (2) objected to at trial). 10
C. Catherine Bartels
Officer Catherine Bartels specialized in law enforcement of juvenile sex
crimes. She testified as follows:
[The State]: Okay. In general, regardless of whether it’s a gorilla
pimp or a finesse pimp, is there another term for finesse pimp as well
or mack?
[Defense Counsel]: Objection, Judge, relevance.
The Court: Overruled.
[The State]: Have you heard the phrase “mack”? Is that another word
that’s also used?
[Bartels]: It’s been used here and there.
Appellant contends that the elicitation of this terminology (i.e., “mack”) was
irrelevant and was never used during trial. Indeed, no other evidence or testimony
referenced the word “mack.” 11
Assuming without deciding that this evidence was irrelevant, we conclude
that its admission at trial did not affect appellant’s substantial rights. See Tex. R.
App. P. 44.2(b) (non-constitutional error must be disregarded if it does not affect
substantial rights). A defendant’s “substantial rights are not affected by the
10
We limit our review to those overruled objections within the spans of pages appellant
cites in the “Relevant Facts” section of his third appellate issue and those cited in his reply brief.
11
During opening arguments, the State briefly mentioned that “mack” was another term
for a “finesse pimp.”
12
erroneous admission of evidence if the appellate court, after examining the record
as a whole, has fair assurance that the error did not influence the jury, or had but a
slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002)
(quotation omitted). After reviewing the entire record, we conclude that the brief
reference to the word “mack” was not prejudicial to appellant and did not influence
the jury at all. Any error in the admission of this evidence was harmless.
D. Danielle Madera
Dr. Danielle Madera was a staff psychologist at the CAC. The trial court
overruled two relevancy objections to her testimony that appellant now complains
about on appeal. The first exchange occurred as follows:
[The State]: Okay. But you’re being called on, in your expertise in
these areas, to help maybe explain some things to us?
[Madera]: Yeah, to talk about the kids we see here. We’ve had about
30 girls that have come through the CAC now for domestic human
trafficking as well —
[Defense Counsel]: Objection, Your Honor, relevance.
The Court: Overruled.
[Madera]: — as well as the literature —
[Defense Counsel]: Objection, Your Honor, narrative.
The Court: Overruled.
[Madera]: — as well as the literature that’s in the field.
Appellant contends that the number of domestic human-trafficking victims at the
CAC is irrelevant. In context, however, the State elicited this testimony to show
that Madera was qualified to opine on issues related to compelling prostitution of
minors. For example, Madera later testified that it is common for children at the
CAC to initially lie, as Amy did.
13
For any of Madera’s subsequent opinions to be admissible, the State had the
burden to establish Madera was qualified to render her opinions. See Vela v. State,
209 S.W.3d 128, 132 (Tex. Crim. App. 2006). In particular, the State had to show
that Madera’s background was “tailored to the specific area of expertise” for which
Madera would testify. See id. at 133. Thus, testimony showing that Madera had
experience with other child sex-offense victims at the CAC was relevant to her
ability to render opinions about child sex-offense victims. The trial court did not
abuse its discretion by overruling appellant’s relevancy objection.
Next, appellant objected based on relevancy as follows:
[The State]: So, to continue, and you say based on the literature and
what you know, a big factor is generally a child has been sexually
abused already, correct?
[Madera]: Yes.
[The State]: And why is that potentially important if they have? And
not all of them have necessarily, correct?
[Madera]: Correct.
[The State]: Okay. But why is that important?
[Defense Counsel]: Objection, Your Honor, relevance.
The Court: Overruled.
[Madera]: It’s important because that initial child abuse put that child
in a vulnerable position to later be abused or victimized by somebody
else and they oftentimes are not supported in their family. They may
not have any sort of family support, so somebody comes along and
offers them something better, a better life, it looks more appealing to a
child —
[Defense Counsel]: Objection, Your Honor, narrative.
The Court: Overruled.
[The State]: Okay. You can continue.
[Madera]: I think that was the end.
14
Neither the State nor appellant called Amy to testify during punishment. The State
objected to the relevance of the Facebook exhibit, and the trial court sustained the
objection. 7
We hold that appellant failed to preserve error.8 To preserve error, an
appellant must have “‘stated the grounds for the ruling that [he] sought from the
trial court with sufficient specificity to make the trial court aware of the
complaint.’” Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)
(alteration in original) (quoting Tex. R. App. P. 33.1(a)(1)). “So it is not enough to
tell the judge that evidence is admissible.” Id. “The proponent, if he is the losing
party on appeal, must have told the judge why the evidence was admissible.” Id.
Further, the complaint to the trial court must comport with the complaint on
appeal, or else no error is preserved. See Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009); see also Reyna, 168 S.W.3d at 177 (“The issue, we said, ‘is not
whether the appealing party is the State or the defendant or whether the trial
court’s ruling is legally ‘correct’ in every sense, but whether the complaining party
on appeal brought to the trial court’s attention the very complaint that party is now
making on appeal.’” (quoting Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim.
App. 2002))).
At trial, appellant asked the court to reopen the case and admit the Facebook
exhibit “out of sort of reciprocity.” Appellant did not argue that the evidence was
relevant to appellant’s culpability, nor did appellant ask the trial court to allow
7
Also, appellant objected during the State’s closing argument and again “offer[ed]
Defendant’s Exhibit No. 1, the Facebook images” into evidence. Appellant gave no rationale for
admission. Although the trial court overruled appellant’s objection, it did not rule on appellant’s
request to offer the Facebook evidence at this time.
8
The State did not raise error preservation in its brief on appeal, but the preservation of
error is “a systemic requirement that a first-level appellate court should ordinarily review on its
own motion.” E.g., Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (quotation
omitted).
8
identify herself or say what grade she was in, but then Amy started to “open up”
and answer Donaruma’s questions. The following testimony occurred:
[The State]: Do you have children that sometimes just won’t answer
anything?
[Donaruma]: Yes, I do.
[Defense Counsel]: Object, Your Honor, relevance.
The Court: Overruled.
[Donaruma]: Yes, I do.
Viewed in context of Donaruma’s immediately preceding testimony about Amy
initially not wanting to answer questions, the trial court would not have abused its
discretion in concluding this evidence to be relevant. See Shaw v. State, 329
S.W.3d 645, 651 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (holding that
evidence was relevant when the witness testified about how the child
complainant’s actions were “appropriate” because child sex-abuse victims often
cry out to multiple people; generally in a child sex-assault case, expert “testimony
is relevant if the witness explains that certain behavior is consistent with sexual
abuse and the child in question has exhibited such behavior”).
Having reviewed the alleged inadmissible evidence that drew timely and
specific objections from appellant at trial, we hold that there is no reversible error.
Appellant’s third issue is overruled.
IV. CUMULATION ORDER
In his first issue, appellant contends the trial court erred by cumulating (or
“stacking”) appellant’s sentences and ordering him to serve the sentences
consecutively. He contends the cumulation statute does not authorize a trial court
to stack a sentence for compelling prostitution with a sentence for sexual assault of
a child when both are imposed during a single criminal action. We agree.
16
A. Standard of Review
We generally review a trial court’s decision to stack a defendant’s sentences
for an abuse of discretion. Mireles v. State, 444 S.W.3d 679, 680 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). When the law authorizes the imposition of
cumulative sentences, the trial court has absolute discretion to cumulate the
sentences. Tran v. State, 221 S.W.3d 79, 90 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d). But a trial court abuses its discretion if it fails to apply the law
correctly. Mireles, 444 S.W.3d at 680. The parties agree that the issue of whether
the trial court could stack appellant’s sentences is one of statutory interpretation,
which we review de novo. See, e.g., Nguyen v. State, 359 S.W.3d 636, 641–42
(Tex. Crim. App. 2012) (applying de novo review to the cumulation statute).
B. General Principles of Statutory Construction
In construing a statute, we seek to effectuate the collective intent or purpose
of the legislators who enacted the legislation as reflected in the words of the
statute. See Price v. State, 434 S.W.3d 601, 605 (Tex. Crim. App. 2014). In doing
so, we focus our attention on the literal text of the statute. Nguyen, 359 S.W.3d at
641. We presume that the Legislature intended for the entire statutory scheme to
be effective. Id.; see also Tex. Gov’t Code Ann. § 311.021(2).13 Thus, we are to
avoid a construction of a statute that would render a provision meaningless,
nugatory, or mere surplusage. See Ludwig v. State, 931 S.W.2d 239, 242 n.9 (Tex.
Crim. App. 1996); Cook v. State, 902 S.W.2d 471, 478 (Tex. Crim. App. 1995);
see also State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006). When statutory
language is clear and unambiguous, we give effect to its plain meaning unless to do
so would lead to absurd consequences that the Legislature could not possibly have
13
Generally, we apply the sections of the Code Construction Act listed in Section 1.05(b)
of the Penal Code. See Tex. Penal Code Ann. § 1.05(b).
17
38.1(i) (argument must contain appropriate citations to the record). The briefing
rules should be construed liberally and are “meant to acquaint the court with the
issues in a case and present argument that will enable the court to decide the case.”
Tex. R. App. P. 38.9
Here, appellant complains about the admission of testimony from three
witnesses, and appellant references relatively short spans of pages—eleven pages
or less—when paraphrasing their testimony. In his reply brief, appellant further
narrows his citations to particular pages within the spans provided in his original
brief. We hold that in the context of this case appellant’s briefing is sufficient to
acquaint the court with the issues and enable the court to decide them. Appellant
has not waived his entire issue by inadequate briefing.
B. Preservation of Error
An appellant must preserve error in the trial court based on the erroneous
admission of evidence by making a specific and timely objection and obtaining a
ruling from the trial court. Lacaze, 346 S.W.3d at 119; see also Tex. R. App. P.
33.1(a). An appellant must object each time evidence is offered unless the
appellant receives a running objection or requests a hearing outside the presence of
the jury. Lacaze, 346 S.W.3d at 119 (citing Dreyer v. State, 309 S.W.3d 751, 754
(Tex. App.—Houston [14th Dist.] 2010, no pet.)).
Appellant failed to object to most of the evidence he now complains about
on appeal. But appellant contends he preserved error regarding all of the
complained-of expert testimony because he obtained a running objection to the
State’s opening argument, and “the trial court gave the State the ‘green light’ to put
on expert testimony.” We disagree with appellant’s contention and with his
characterization of what transpired during opening statements. The following
exchange occurred during the State’s opening argument:
10
more than once or is convicted of violations of more than
one section; or
(B) for which a plea agreement was reached in a case in
which the accused was charged with more than one
offense listed in Paragraph (A) committed against a
victim younger than 17 years of age at the time of the
commission of the offense regardless of whether the
accused is charged with violations of the same section
more than once or is charged with violations of more
than one section;
(3) an offense:
(A) under Section 21.15 [improper photography or visual
recording] or 43.26 [possession or promotion of child
pornography], regardless of whether the accused is
convicted of violations of the same section more than
once or is convicted of violations of both sections; or
(B) for which a plea agreement was reached in a case in
which the accused was charged with more than one
offense listed in Paragraph (A), regardless of whether the
accused is charged with violations of the same section
more than once or is charged with violations of both
sections;
(4) an offense for which the judgment in the case contains an
affirmative finding under Article 42.0197, Code of Criminal
Procedure [gang-related conduct];
(5) an offense:
(A) under Section 20A.02 [trafficking of persons] or
43.05 [compelling prostitution], regardless of whether the
accused is convicted of violations of the same section
more than once or is convicted of violations of both
sections; or
(B) for which a plea agreement was reached in a case in
which the accused was charged with more than one
offense listed in Paragraph (A), regardless of whether the
accused is charged with violations of the same section
more than once or is charged with violations of both
sections; or
19
(6) an offense:
(A) under Section 22.04(a)(1) or (2) or Section 22.04(a-
1)(1) or (2) [injury to a child, elderly individual, or
disabled individual] that is punishable as a felony of the
first degree, regardless of whether the accused is
convicted of violations of the same section more than
once or is convicted of violations of more than one
section; or
(B) or which a plea agreement was reached in a case in
which the accused was charged with more than one
offense listed in Paragraph (A) and punishable as
described by that paragraph, regardless of whether the
accused is charged with violations of the same section
more than once or is charged with violations of more
than one section.
Tex. Pen. Code Ann. § 3.03(b).
D. Parties’ Arguments
Appellant and the State each propose different interpretations of the
statute.14 Appellant contends that the only reasonable interpretation of the statute
is that offenses listed in each subsection (b)(1), (2), (3), (5), and (6) cannot be
stacked with offenses listed in other subsections (b)(1), (2), (3), (5), and (6). In
other words, two offenses listed in (b)(2) could be stacked together, but one
offense from (b)(2) could not be stacked with one offense from (b)(5), as the trial
court did here for sexual assault and compelling prostitution.
The State contends that the “or” appearing after subsection (b)(5)(B) means
that all of the offenses listed in subsection (b) may be stacked together. Appellant
14
Both parties contend that the statute is unambiguous; thus, we should not resort to
extra-textual materials for interpretation. See, e.g., Boykin, 818 S.W.2d at 785–86 (“If the plain
language of a statute would lead to absurd results, or if the language is not plain but rather
ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a
court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or
administrative interpretations of the statute or legislative history.”).
20
counters that “or” can be inclusive or exclusive, and it is not dispositive of the
Legislature’s intent. Moreover, appellant argues the State’s interpretation renders
parts of the statute meaningless.
The State also contends that appellant’s interpretation does not produce a
just and reasonable result. See Tex. Gov’t Code Ann. § 311.021(3). The State
argues that appellant’s interpretation is contrary to the Legislature’s intent of
allowing the State to prosecute a defendant for multiple sex-related offenses
against a child in a single proceeding.
E. Textual Analysis
Based on the plain meaning of the text of the statute, we hold that
appellant’s interpretation of the statute is the only reasonable interpretation
because the State’s interpretation would render portions of the statute meaningless
and would not give effect to the entire statute.
Subsection (b)(5)(A) states that sentences may be stacked if each sentence is
for an offense of human trafficking or compelling prostitution, “regardless of
whether the accused is convicted of violations of the same section more than once
or is convicted of violations of both sections.” Tex. Penal Code Ann.
§ 3.03(b)(5)(A) (emphasis added). If all offenses listed in subsection (b) could be
stacked, the references to “both sections” in subsections (b)(1), (3), and (5) would
be meaningless and irreconcilable. Subsections (b)(1), (3), and (5) each list only
two offenses, so the phrase “both sections” necessarily indicates that the
Legislature intended the stacking of only those two offenses together.
Further, subsections (b)(1), (2), (3), (5), and (6) each include a paragraph (B)
that refers to convictions obtained by plea agreements for which the defendant was
charged with “more than one offense listed in Paragraph (A).” Id.
21
§ 3.03(b)(1)(B), (2)(B), (3)(B), (5)(B), (6)(B) (emphasis added). The Legislature’s
use of this phrase in each paragraph (B) suggests that the Legislature intended only
for offenses listed in the companion paragraph (A) to be stacked together. See
Tex. Penal Code Ann. § 1.05(c)(2) (“In this code . . . a reference to a . . . paragraph
or other numbered or lettered unit without further identification is a reference to a
unit of the next-larger unit of this code in which the reference appears.”).15
The State’s reliance on the word “or” appearing after subsection (b)(5)(B) is
not dispositive because “or” can be interpreted in two ways. It can be used as an
“inclusive” function word to express “an alternative between different or unlike
things.” Webster’s Third New International Dictionary 1585 (1993); see Black’s
Law Dictionary 1095 (6th ed. 1990); see also Heritage on San Gabriel
Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 427 (Tex.
App.—Austin 2012, pet. denied) (“[T]he word ‘or’ does not automatically create a
choice between two mutually exclusive options.”). But “or” can also be an
“exclusive” word to express a “choice between alternative things,” whether two or
more. Webster’s Third New International Dictionary, supra, at 1585; see Black’s
Law Dictionary, supra, at 1095. See generally Lake v. Woodcreek Homeowners
Ass’n, 243 P.3d 1283, 1289 (Wash. 2010) (discussing the difference between both
uses). “The Legislature’s use of the disjunctive term ‘or’ typically signifies a
separation between two distinct ideas.” Heritage, 393 S.W.3d at 427 (“The use of
the disjunctive usually indicates alternatives and requires those alternatives to be
treated separately . . . .”).
15
We do not think it could be argued that convictions from plea agreements, i.e., under
paragraph (B), should be treated differently than convictions after a trial, i.e., under paragraph
(A), given the intent of the Legislature to stack sentences for convictions for the specified
offenses, regardless of how the convictions are obtained. See Nguyen, 359 S.W.3d at 645
(discussing legislative history and holding that sentences for guilty pleas to offenses not listed in
subsection (b) could not be stacked even though the defendant had initially been charged with
offenses listed in subsection (b)).
22
To determine which meaning was intended, “Texas courts consider the use
of the word ‘or’ against the backdrop of the entire statute.” Id. Looking to the
entire statute, the exclusive use of the word “or” at the end of subsection (b)(5)(B)
is the only reasonable interpretation because the inclusive use of “or” would render
meaningless parts of the statute and not give effect to the entire statute, as
discussed above.
We note that the Legislature amended subsection (b) in piecemeal fashion to
add specific offenses and categories of offenses: first, intoxication manslaughter,
see Act of May 25, 1995, 74th Leg., R.S., ch. 596, § 1, 1995 Tex. Gen. Laws 3435,
3435; second, most of the sexual offenses against children in (b)(2), see Act of
May 31, 1997, 75th Leg., R.S., ch. 667, § 2, 1997 Tex. Gen. Laws 2250, 2251–52;
third, intoxication assault for subsection (b)(1), and improper photography and
child pornography in (b)(3), see Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 1,
2005 Tex. Gen. Laws 1429, 1429–30; fourth, online solicitation of a minor in
(b)(2), see Act of May 27, 2007, 88th Leg., R.S., ch. 1291, § 6, 2007 Tex. Gen.
Laws 4344, 4349; fifth, the gang-related affirmative finding in (b)(4), see Act of
May 31, 2009, 81st Leg., R.S., ch. 1130, § 21, 2009 Tex. Gen. Laws 3119, 3126–
27; sixth, human trafficking and compelling prostitution in (b)(5), see Act of April
7, 2011, 82nd Leg., R.S., ch. 1, § 6.01, 2011 Tex. Sess. Law Serv. 1, 14–15 (West);
and finally, injury to a child, elderly, or disabled person in (b)(6), see Act of May
17, 2013, 83rd Leg., R.S., ch. 228, § 1, 2013 Tex. Sess. Law Serv. 968, 968–69
(West).
Looking solely to the text of each amendment, we discern that the
Legislature considered each category separately and would not have intended
subsection (b) to authorize stacking among the various categories of offenses. One
reason for this understanding is that the Legislature added the various categories of
23
For any of Madera’s subsequent opinions to be admissible, the State had the
burden to establish Madera was qualified to render her opinions. See Vela v. State,
209 S.W.3d 128, 132 (Tex. Crim. App. 2006). In particular, the State had to show
that Madera’s background was “tailored to the specific area of expertise” for which
Madera would testify. See id. at 133. Thus, testimony showing that Madera had
experience with other child sex-offense victims at the CAC was relevant to her
ability to render opinions about child sex-offense victims. The trial court did not
abuse its discretion by overruling appellant’s relevancy objection.
Next, appellant objected based on relevancy as follows:
[The State]: So, to continue, and you say based on the literature and
what you know, a big factor is generally a child has been sexually
abused already, correct?
[Madera]: Yes.
[The State]: And why is that potentially important if they have? And
not all of them have necessarily, correct?
[Madera]: Correct.
[The State]: Okay. But why is that important?
[Defense Counsel]: Objection, Your Honor, relevance.
The Court: Overruled.
[Madera]: It’s important because that initial child abuse put that child
in a vulnerable position to later be abused or victimized by somebody
else and they oftentimes are not supported in their family. They may
not have any sort of family support, so somebody comes along and
offers them something better, a better life, it looks more appealing to a
child —
[Defense Counsel]: Objection, Your Honor, narrative.
The Court: Overruled.
[The State]: Okay. You can continue.
[Madera]: I think that was the end.
14
F. Just and Reasonable Result and Purpose of Statute
The State suggests that a prohibition on stacking a (b)(2) offense with a
(b)(5) offense would not yield a just and reasonable result. See Tex. Gov’t Code
Ann. § 311.021(3). The State posits a hypothetical whereby appellant was
convicted of two counts of sexual assault and sentenced to twenty years for each
offense, cumulated, compared to a hypothetical whereby appellant was convicted
of one count of sexual assault and one count of compelling prostitution and
sentenced to twenty years each, which could not be cumulated under our
interpretation of the statute. The State contends the latter situation would not be
just and reasonable because it is the more egregious scenario.
The State’s hypothetical ignores the actual sentences in this case, which
were for seven years’ confinement on the sexual assault conviction and twenty-
three years’ confinement on the compelling prostitution conviction. So, the jury
obviously viewed the compelling prostitution charge as more egregious. Had
appellant received only seven years each on two stacked sentences for sexual
assault, he would have been sentenced to less time than he actually received in this
case even though sexual assault cannot be stacked with compelling prostitution. In
short, the State’s hypothetical is untethered to the facts of this case and does not
lead to a conclusion that our interpretation of the statute will cause an unjust or
unreasonable result.
Finally, the State contends that the purpose of the statute is to allow the State
to prosecute a defendant for multiple sex-related offenses against a child in a single
proceeding so that the child complainant does not have to suffer through multiple
trials. This ostensible purpose is derived from extra-textual legislative history of
the 1997 omnibus bill that added Section 3.03(b)(2) while simultaneously adding
Section 3.04(c) to remove a defendant’s previously unqualified right to sever
25
Section 3.03(b)(2) offenses. See House Research Organization, Bill Analysis for
House Criminal Jurisprudence Committee, C.S.S.B. 381 (May 20, 1997) (noting
that the bill would “restrict defendants’ right to multiple trials for serious sex
offenses committed against children so that child victims cannot be forced to
undergo multiple trials”; claiming that defendants “sometimes use their right to
have multiple offenses tried separately as a tactic to traumatize victims by putting
them through multiple trials”); see also Act of May 31, 1997, 75th Leg., R.S., ch.
667, § 3, 1997 Tex. Gen. Laws 2250, 2252; Bonilla v. State, 452 S.W.3d 811, 831
(Tex. Crim. App. 2014) (Price, J., dissenting). 17
The 2005 bill adding intoxication assault, child pornography, and improper
photography offenses to Section 3.03(b) further narrowed a defendant’s right to
sever offenses by making Section 3.04(c) applicable to all offenses “described by
Section 3.03(b).” See Act of May 23, 2005, 79th Leg., R.S., ch. 527, § 2, 2005
Tex. Gen. Laws 1429, 1430 (codified at Tex. Penal Code Ann. § 3.04(c)). Our
holding today, however, is limited to the trial court’s authority to stack sentences,
not to the State’s ability to consolidate or join offenses so as to prevent the
necessity for multiple trials. Appellant had no unqualified right to sever in this
case and could not have forced the child complainant to endure multiple trials. The
State retains that authority although the consequence of joining multiple offenses
not listed in the same subsection (b)(1), (2), (3), (5), or (6) will be concurrent
sentences.18
17
At the time, Section 3.04(c) stated that the right to severance did not apply to a
prosecution for offenses “described by Section 3.03(b)(2).” See Act of May 31, 1997, 75th Leg.,
R.S., ch. 667, § 3, 1997 Tex. Gen. Laws 2250, 2252.
18
We note that in appellant’s case, the State had evidence appellant committed up to
eight counts of compelling prostitution, which could have been stacked together, and two counts
of sexual assault, which could have been stacked together.
26
identify herself or say what grade she was in, but then Amy started to “open up”
and answer Donaruma’s questions. The following testimony occurred:
[The State]: Do you have children that sometimes just won’t answer
anything?
[Donaruma]: Yes, I do.
[Defense Counsel]: Object, Your Honor, relevance.
The Court: Overruled.
[Donaruma]: Yes, I do.
Viewed in context of Donaruma’s immediately preceding testimony about Amy
initially not wanting to answer questions, the trial court would not have abused its
discretion in concluding this evidence to be relevant. See Shaw v. State, 329
S.W.3d 645, 651 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (holding that
evidence was relevant when the witness testified about how the child
complainant’s actions were “appropriate” because child sex-abuse victims often
cry out to multiple people; generally in a child sex-assault case, expert “testimony
is relevant if the witness explains that certain behavior is consistent with sexual
abuse and the child in question has exhibited such behavior”).
Having reviewed the alleged inadmissible evidence that drew timely and
specific objections from appellant at trial, we hold that there is no reversible error.
Appellant’s third issue is overruled.
IV. CUMULATION ORDER
In his first issue, appellant contends the trial court erred by cumulating (or
“stacking”) appellant’s sentences and ordering him to serve the sentences
consecutively. He contends the cumulation statute does not authorize a trial court
to stack a sentence for compelling prostitution with a sentence for sexual assault of
a child when both are imposed during a single criminal action. We agree.
16
prostitution less than 18 years of age.” Appellant contends the judgments should
be reformed to reflect only the titles of the offenses identified in the Penal Code,
respectively “sexual assault” and “compelling prostitution.” We disagree with
appellant’s contention that reformation is required.
Texas judgments must reflect the “offense or offenses for which the
defendant was convicted.” Tex. Code Crim. Proc. Ann. art. 42.01, § 1(13).
Appellant relies on Ex parte Mattox, 129 S.W.2d 641 (Tex. Crim. App. 1939), to
suggest that it is a clerical error for a judgment to reflect unnecessary verbiage.
Mattox had been charged with one count of “robbery by using and exhibiting a
firearm,” and two counts of “robbery by assault and violence.” Id. at 641. Mattox
waived a jury and pleaded guilty to the two counts of robbery by assault and
violence, and the court sentenced him to fifteen years’ confinement, id. at 642, but
the judgment incorrectly identified the offense to which he pleaded guilty as
robbery “by use of firearms,” see id. at 642, 645 (op. on reh’g). The distinction
was important because at the time, robbery by assault or violence carried a
punishment of five years to life while robbery by use of a firearm was a capital
offense for which a defendant could not waive a jury. Id. at 643. The Court of
Criminal Appeals explained that it was merely a clerical error for the clerk to
include in the judgment “by use of firearms” after the offense of “robbery.” See id.
at 645. A nunc pro tunc judgment corrected the earlier judgment by removing the
“by use of firearms” phrase. See id. The nunc pro tunc judgment was necessary
for the judgment to “speak the truth” of what actually happened at trial. Id.; see
also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (appellate court
has authority to reform a judgment to make the record “speak the truth”).
Ex parte Mattox did not hold, as appellant suggests, that it was error by itself
to include “by use of firearms” in the title of the offense in the judgment; it was
28
error in that case because Mattox had not pleaded guilty to that distinct offense. At
the time, the Penal Code included only one offense of “Robbery,” wherein the
different categories of robbery were distinguished under the same Article. See
Tex. Penal Code art. 1408 (1925, repealed).19 By the court’s distinguishing
between “robbery” and “robbery by use of firearms,” the court acknowledged that
a greater description of the offense may be appropriate compared to the title of the
offense identified in the Penal Code, so the judgment may “speak the truth” of the
offense committed. See Davis v. State, 501 S.W.2d 629, 633 (Tex. Crim. App.
1973) (noting that the “better practice” for naming offenses in judgments would be
to use the term “burglary with intent to commit theft” or “burglary with intent to
commit rape” or another “accurate description of the offense,” rather than merely
“burglary, as charged in the indictment”).
In appellant’s case, the phrases “of a child 14–17 years of age” and “less
than 18 years of age” accurately describe the offenses—sexual assault and
compelling prostitution, respectively—for which appellant was convicted. Like
the old robbery statute, the sexual assault and compelling prostitution statutes
criminalize different types of conduct for which there can be varying defenses and
punishments. For example, compelling prostitution is ordinarily a second degree
felony, but it is a first degree felony when the complainant is “a child younger than
18 years.” Tex. Penal Code Ann. § 43.05. Certain defenses apply to sexual assault
when the complainant is “a child 14 years of age or older.” See id. § 22.011(e).
19
The statute identified “Robbery” as follows: “If any person by assault, or violence, or
by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of
another any property with intent to appropriate the same to his own use, he shall be punished by
confinement in the penitentiary for life, or for a term of not less than five years; and when a
firearm or other deadly weapon is used or exhibited in the commission of the offense, the
punishment shall be death or by confinement in the penitentiary for any term not less than five
years.” Tex. Penal Code art. 1408 (1925, repealed)
29
Thus, we cannot conclude that the trial court erred by including phrases that
accurately describe the offenses for which appellant was convicted.
Appellant has cited to no authority that would require a judgment to include
only the title of the offense identified in the Penal Code. Similarly, we have found
no authority to that effect, and the Code of Criminal Procedure does not require it.
Appellant’s fourth issue is overruled.
VI. CONCLUSION
We have overruled appellant’s second, third, and fourth issues, but sustained
his first regarding the cumulation order. Accordingly, we modify the trial court’s
judgment in the compelling prostitution case, Cause No. 14-14-00155-CR (Trial
Court Cause No. 1390391), to delete the cumulation order, and we affirm the
judgment as modified. We affirm the trial court’s judgment in the sexual assault
case, Cause No. 14-14-00154-CR (Trial Court Cause No. 1323841).
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Publish — Tex. R. App. P. 47.2(b).
30