Zachariah Joshua Holm v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00269-CR
Zachariah Joshua Holm, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2018-417, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Zachariah Joshua Holm was convicted by a jury of trafficking of a
child (count I), aggravated sexual assault of a child (counts II–IV), indecency with a child by
contact (count V), sexual performance by a child (count VI), and possession of child
pornography (count VII) and sentenced by the trial court to 30 years’ confinement on counts I
through IV, 20 years’ confinement on count V, and 10 years’ confinement on counts VI and VII.
The trial court ordered that the sentences run concurrently. In a single issue on appeal, Holm
challenges the sufficiency of the evidence supporting his trafficking conviction. We will affirm
the trial court’s judgments of conviction.
BACKGROUND 1
In December 2017, 16-year-old Michelle Christina 2 attended a party with friends
at which she consumed alcohol and marijuana. During the party, she posted a message on social
media asking for someone to pick her up “because [she] was very intoxicated.” Holm, an adult
acquaintance, responded to her post and picked her up in a car. He gave her Xanax, and they
drove approximately 25 minutes to a park near his residence where they smoked marijuana.
After staying at the park for an hour or two, Holm drove Christina to the shed in
which he lived on his father’s property. Before they arrived, he asked her age. When she told
him that she was 16, he replied, “Wow, you’re young.” Inside the shed, they smoked more
marijuana, snorted cocaine, and had vaginal and oral intercourse, which they recorded on his cell
phone. Before having sex, he made her promise that she would not tell anyone “[b]ecause of
how young she was.” Christina, who had warned Holm that he “needed to delete [the videos]
because he doesn’t need all these recordings of a child,” attempted unsuccessfully to delete them
from his phone. The following day, they woke around noon, and he took her home. They
maintained a relationship for approximately two weeks, but Christina ended it when her friend
sent her a copy of one of the videos she had made with Holm.
Under pressure from her family, Christina reported the incident to police and
participated in a forensic interview. From information she provided, officers obtained a search
1 We limit our recitation to the facts necessary to advise the parties of the Court’s
decision and reasons for overruling Holm’s sole issue. See Tex. R. App. P. 47.1, .4. Consistent
with the standard of review, the facts are based on the trial evidence viewed in the light most
favorable to the verdict. See Jackson v. State, 530 S.W.3d 738, 739 (Tex. App.—Houston [14th
Dist.] 2017, no pet.).
2 Because the complainant was a minor at the time of the offense, we refer to her by a
pseudonym. See Tex. R. App. P. 9.10(a)(3); Jones v. State, 571 S.W.3d 764, 772 (Tex. Crim.
App. 2019).
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warrant for Holm’s shed. During the search, they observed drug paraphernalia, a Samsung
cellphone, a camera containing a memory card, and a white iPhone. The officers seized the
iPhone pursuant to a second warrant and, following a forensic extraction, recovered five video
files and several images. At trial, Detective Frank Cockrell with the Comal County Sheriff’s
Office testified that four of the videos depicted Holm and Christina engaging in oral sex. He also
testified that the images were consistent with the contents of the video files and that they showed
Christina’s genitalia and her performing oral sex on Holm.
Holm was charged with trafficking of a child, three counts of aggravated sexual
assault of a child, indecency with a child by contact, sexual performance by a child, and
possession of child pornography. Before trial, he pleaded guilty to all but the trafficking and
aggravated sexual assault counts. The jury found him guilty of all of the charges. Following a
punishment hearing, the trial court sentenced him to 30 years’ confinement on counts I through
IV, 20 years’ confinement on count V, and 10 years’ confinement on counts VI and VII, with the
sentences to run concurrently. 3 This appeal followed.
DISCUSSION
In his only issue, Holm contends that the evidence presented at trial is legally
insufficient to support his trafficking conviction. As charged in the indictment, a person
commits the offense of trafficking of a child if he knowingly traffics a child and by any means
3 “[A] guilty plea to a jury results in a unitary trial before that jury.” In re State ex rel.
Tharp, 393 S.W.3d 751, 758 (Tex. Crim. App. 2012); see Tex. Code Crim. Proc. art. 37.07. In
the present case, however, although Holm entered guilty pleas to three counts before the jury, he
later asserted through counsel that he had misunderstood and testified at a hearing outside the
jury’s presence that he wished for the trial court to assess punishment. The State “acquiesce[d]
in [the court’s] setting the punishment, even though it should become unitary.” Neither side
challenges the trial court’s assessment of punishment on appeal.
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causes the trafficked child to engage in, or become the victim of, conduct prohibited by:
Section 4 21.11 (Indecency with a Child), Section 22.011 (Sexual Assault), Section 22.021
(Aggravated Sexual Assault), Section 43.25 (Sexual Performance by a Child), or Section 43.26
(Possession or Promotion of Child Pornography). See Tex. Penal Code § 20A.02(a)(7).
“‘Traffic’ means to transport, entice, recruit, harbor, provide, or otherwise obtain another person
by any means.” Id. § 20A.01(4).
Although Holm concedes in his briefing that “he drove [Christina] back to his
house; they had consensual sex, but she was underage”—and that therefore “[t]he evidence
supports those convictions”—he argues that the plain language of the trafficking statute is
ambiguous, that effectuating the statute’s plain language would lead to absurd results, and that
extratextual factors reflect that the statute was not intended to criminalize conduct such as his.
See Id. § 20A.02(a)(7).
Under his interpretation of the statute, grounded in Presiding Judge Keller’s
dissent in Ritz v. State—a case that dealt with similar arguments—the statute’s structure and
grammar compel the conclusion that subsection 20A.02(a)(7) “applies only when the actor
traffics a child and causes the child to be subjected to a sex offense committed by someone other
than the actor.” 533 S.W.3d 302, 312 (Tex. Crim. App. 2017) (Keller, P.J., dissenting)
(emphasis added). Quoting Presiding Judge Keller, Holm insists that the statute’s “structural
characteristics . . . at least indicate an ambiguity” and that the Court must therefore “look beyond
the plain meaning of the statute to extratextual factors,” which demonstrate that his conduct
“cannot be characterized as human trafficking.” Id. at 312–13. Likewise, he asserts, “[b]asing a
prosecution on ‘traffic’ as a standalone term, without placing it in the context of the entire
4 The term “Section” refers to the Texas Penal Code.
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statute, produces absurd results,” as such a construction “renders superfluous the statutory
provisions that assign punishment to most of the sex offenses in the Penal Code because proving
those offense would necessarily prove the offense of trafficking.”
When reviewing the sufficiency of the evidence, we ask whether, after viewing
the evidence in the light most favorable to the prosecution, any rational finder of fact could have
found the essential elements of the offense beyond a reasonable doubt. Chambers v. State,
580 S.W.3d 149, 156–57 (Tex. Crim. App. 2019); see Jackson v. Virginia, 443 U.S. 307, 319
(1979). Sometimes that is simply a matter of reviewing the record to determine whether there is
sufficient evidence to establish a particular element of an offense. Chambers, 580 S.W.3d at
156. Other times, however, it requires us to determine the meaning of the statute under which
the defendant was prosecuted and ask whether the defendant’s conduct actually constitutes an
offense under the statute. Id. (citing Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App.
2015)); see Ratliff v. State, 663 S.W.3d 106, 114 (Tex. Crim. App. 2022). “That question, like
all statutory construction questions, is a question of law, which we review de novo.” Liverman,
470 S.W.3d at 836 (citing Moore v. State, 371 S.W.3d 221, 227 (Tex. Crim. App. 2012)
(“[A]ppellate construction of a statute may be necessary to resolve an evidence-sufficiency
complaint when alternative statutory interpretations would yield dissimilar outcomes.”)).
In interpreting a statute, we give effect to the plain meaning of the statute’s
language, unless the statute is ambiguous or the plain meaning leads to absurd results that the
Legislature could not possibly have intended. Chambers, 580 S.W.3d at 155; State v. Kahookele,
640 S.W.3d 221, 225 (Tex. Crim. App. 2021). We read words and phrases in context; construe
them according to normal rules of grammar and usage; presume that every word has been used
for a purpose; and give effect to each word, phrase, clause, and sentence when reasonably
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possible. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020); Chambers,
580 S.W.3d at 155. Where statutory terms have a technical meaning, we will construe them
consistent with that meaning. Dunham v. State, 666 S.W.3d 477, 484 (Tex. Crim. App. 2023).
If the statute’s language is ambiguous or the plain language would lead to absurd consequences,
“we can review a variety of extra-textual resources to determine its meaning.” Stahmann,
602 S.W.3d at 577; see Kahookele, 640 S.W.3d at 225 (noting that we may consider such
extratextual factors as legislative history “out of necessity”); Boykin v. State, 818 S.W.2d 782,
785–86 (Tex. Crim. App. 1991) (explaining that “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”).
This Court has twice had occasion to consider arguments similar to those
advanced by Holm, each time finding them to be without merit. In Ritz v. State, Ritz contended
that the Legislature could not have intended for the anti-trafficking statute 5 to apply to cases that
“do not involve ‘the illegal trade of human beings for profit or for sex trafficking’” and argued
that applying the statute under comparable facts effectively increased the punishment range for
all sexual offenses involving a minor because “anytime an adult engages in sexual activities with
a minor the adult will be subject to prosecution for trafficking of persons.” 481 S.W.3d 383, 385
(Tex. App.—Austin 2015, pet. dism’d). We agreed that Ritz’s behavior did not constitute “what
would ordinarily be considered ‘human trafficking’” and acknowledged that he “may be correct
5 Although Ritz challenged a conviction for continuous trafficking of persons, that
statute merely makes it an offense for a person, during a period that is 30 or more days in
duration, to engage two or more times in conduct that constitutes an offense under Section
20A.02 against one or more victims. See Tex. Penal Code § 20A.03. Our statutory-construction
analysis in Ritz is consequently controlling in the present case.
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that the plain language of this statute is so broad that nearly every adult who has sex with a
minor may now be prosecuted as a human trafficker.” Id. However, we concluded that although
broad, the statute’s language is unambiguous and included his act of driving the victim “to his
home in order to have sex with her.” Id. at 386. We further concluded that the statute’s plain
meaning did not lead to absurd results that the Legislature could not have intended, explaining:
it is possible that the legislature wished to significantly increase the sentences
available for persons who commit sexual crimes involving children by including
all such crimes under the “trafficking” umbrella. Furthermore, it is possible that
the legislature did intend to classify Ritz’s conduct as trafficking because it
determined that removing a child from the safety of her own home and driving her
miles away to the seclusion of the defendant’s home in order to sexually assault
her is particularly egregious conduct.
Id.
In Griffin v. State, we affirmed our reasoning in Ritz and rejected Griffin’s
suggestion that we adopt the two-actor interpretation of subsection 20A.02(a)(7) proposed in
Presiding Judge Keller’s dissent from the Court of Criminal Appeals’ dismissal of Ritz’s petition
for discretionary review. No. 03-19-00429-CR, 2020 WL 7640149, at *5 (Tex. App.—Austin
Dec. 23, 2020, pet. ref’d) (mem. op., not designated for publication). Like Holm, Griffin argued
that driving a minor to a location to have sex with her did not qualify as “transport[ing]” her
under the trafficking statute; that he could only have been guilty of trafficking if he “delivered
[the complainant] to a beneficiary who was not himself”; and that by applying the statute to his
conduct, the Court would “effectively render useless the punishment provisions for other sex
offenses because the conduct prohibited in those other statutes would fall under the trafficking
statute.” Id. at *2.
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We rejected Griffin’s arguments “[i]n light of our controlling precedent in Ritz”
and the analysis in Judge Newell’s concurrence in the Court of Criminal Appeals’ dismissal in
that case. Id. at *5. Despite recognizing the concerns raised in our Ritz opinion and Presiding
Judge Keller’s dissent, we concluded that “[t]he unambiguous language of the statute allows for
convictions in which the person trafficking an individual is also the person who sexually assaults
or otherwise victimizes the individual.” Id. Moreover, we explained that “we do not believe that
application of the statute in these circumstances is something the legislature could not have
possibly intended.” Id.
In the present case, we find Ritz and Griffin to be dispositive. We reaffirm our
reasoning and decisions in those cases and reject Holm’s recommendation that we instead follow
Presiding Judge Keller’s dissent and determine that subsection 20A.02(a)(7)’s plain language is
ambiguous or leads to absurd results that the Legislature could not possibly have intended.
See id.; Ritz, 481 S.W.3d at 386; see also McKinney v. State, 177 S.W.3d 186, 205 n.15 (Tex.
App.—Houston [1st Dist.] 2005) (recognizing that dissent is not binding precedent), aff’d,
207 S.W.3d 366 (Tex. Crim. App. 2006). Accordingly, we need not consider Holm’s analysis of
extratextual factors in evaluating the sufficiency of the evidence. See Kahookele, 640 S.W.3d at
225; Griffin, 2020 WL 7640149, at *5.
Christina testified that when she was 16 years old, Holm picked her up from a
party and drove her 25 minutes to a park and then to his residence. She testified that during the
drive, she told him that she was 16 and that he responded, “Wow, you’re young.” She testified
that he gave her—and she ingested—Xanax, marijuana, and cocaine. She testified that while at
his residence, they had intercourse, that his penis penetrated her vagina and went inside her
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mouth, and that his mouth contacted her vagina. She also testified that he recorded their
encounter with a cellphone and that she was later sent a copy of one of the videos by a friend.
Detective Frank Cockrell testified that officers were able to extract videos from a
cellphone recovered from Holm’s residence that depicted Christina and Holm engaging in oral
sex. The videos, which were admitted at trial, corroborate Cockrell’s testimony.
Holm, who pleaded guilty to the counts of indecency, sexual performance, and
possession of child pornography, testified that he was guilty of those offenses. He testified that
he “intentionally and knowingly” picked Christina up from the party and that he “intentionally
and knowingly” transported her back to his residence. He also testified that he “intentionally and
knowingly” engaged in sexual intercourse with her, that he “at least committed sexual assault
with [her],” that he would agree that she was a child at the time, that “he had her perform oral
sex on [him],” that he “performed oral sex on her,” that he placed his mouth on her breast, and
that he recorded video of the incident.
We conclude that, viewing the evidence in the light most favorable to the verdict,
a rational juror could have found that Holm knowingly transported Christina and caused her to
become the victim of, or engage in conduct prohibited by, the statutes criminalizing indecency
with a child, sexual assault, aggravated sexual assault, sexual performance by a child, or
possession of child pornography. See Tex. Penal Code §§ 20A.02(a)(7), .01(4), 21.11. 22.011,
22.021, 43.25, 43.26; see also Transport, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/transport (last accessed on August 1, 2023)
(defining “transport” as meaning “to transfer or convey from one place to another”). Thus, the
evidence is legally sufficient to support his conviction under the trafficking statute. We overrule
his sole issue on appeal.
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CONCLUSION
Having overruled Holm’s only issue, we affirm the trial court’s judgments
of conviction.
__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Affirmed
Filed: August 4, 2023
Do Not Publish
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