Griffin, Richard Dale ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0150-21
RICHARD DALE GRIFFIN, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD DISTRICT COURT OF APPEALS
HAYS COUNTY
NEWELL, J., filed a concurring opinion.
This Court is again being asked to interpret the human trafficking
statute. 1 Appellant rehashes the same arguments that were clearly
rejected in Ritz v. State. 2 Nothing has changed since Ritz. The statute
1
See Tex. Penal Code § 20A.02.
2
See Ritz v. State, 481 S.W.3d 383 (Tex. App.—Austin 2015, pet. dism’d); see also Ritz v.
State, 533 S.W.3d 302 (Tex. Crim. App. 2017).
Griffin Concurring — 2
hasn’t. Neither have the arguments. Contrary to Appellant’s claims,
there is no need to “settle” the construction of the statute. The courts
of appeals that have construed the statute have done so according to
the text of the statute and consistent with the holding in Ritz. 3 And the
United States Supreme Court recently denied review on a case in which
the defendant raised constitutional challenges to the human trafficking
statute based upon the same arguments rejected by the court of appeals
in this case. 4 There is no uncertainty; there’s just dissatisfaction with
the statute’s terms.
When the legislature meets without changing a statute, after that
particular statute has been judicially construed, we presume the
legislature intended the same construction should continue to be applied
to that statute. 5 The human trafficking statute was judicially construed
and decided by the Austin court of appeals in Ritz v. State, a published
3
See Ex parte Barrett, 608 S.W.3d 80, 95–96, 98 (Tex. App.—Dallas 2020, pet. filed)
(construing 20A.02(a) in the face of facial overbreadth and vagueness challenges);
Benavides v. State, No. 04-18-00273-CR, 2019 WL 5580260, *5–6 (Tex. App.—San Antonio
Oct. 30, 2019, pet. ref’d) (mem. op. not designated for publication), cert. denied, 141 S.Ct.
372 (2020) (noting that “[b]ased on the plain text of the statute, a person of ordinary
intelligence is placed on notice that driving another person with the intent to force the other
person to engage in prostitution more than once during a period of 30 days constitutes the
offense of continuous trafficking”).
4
See Benavides, 2019 WL 5580260.
5
Smith v. State, 5 S.W.3d 673, 681 (Tex. Crim. App. 1999) (Keller, P.J., dissenting) (citing
State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (quoting Marin v. State, 891
S.W.2d 267, 271–72 (Tex. Crim. App. 1994))).
Griffin Concurring — 3
opinion issued on November 24, 2015. 6 Our Court initially granted
discretionary review, but later dismissed the petition as improvidently
granted on June 14, 2017. 7 Since then, the Texas Legislature has met
on multiple occasions (July 18, 2017, 8 January 8, 2019, 9 and January
12, 2021). 10 It did not change the statute.
In Ritz, the court of appeals rejected the same arguments
presented in this petition for review. 11 Ritz dealt with a defendant who
picked up a 14-year-old victim many times and drove her to his house
for sex. 12 The defendant argued that the human trafficking statute could
not apply to him because there was no evidence of “the illegal trade of
human beings for profit or for sex trafficking.” 13 The defendant argued
that without such a showing a defendant would be subject to criminal
liability for a greater offense of trafficking (instead of a lesser-included
6
Ritz, 481 S.W.3d at 384–86.
7
Ritz, 533 S.W.3d at 303.
8
Senate Journal, Eighty-fifth Legislature—First called Session.
9
House Journal, Eighty-sixth Legislature, Regular Session.
10
House Journal, Eighty-Seventh Legislature, Regular Session.
11
See Ritz, 481 S.W.3d at 384–86.
12
Id. at 384.
13
Id. at 385.
Griffin Concurring — 4
offense) anytime an adult engaged in sex with a minor and transported
the minor to do so. 14 The court of appeals rejected these arguments
and recognized that the terms of the human trafficking statute are
broad, but do not lead to absurd results. 15 In addition, the two courts of
appeals that have had the occasion to construe the statute since Ritz
was decided have construed the statute consistent with Ritz. 16
Here, Appellant was indicted with one count of Continuous
Trafficking of a Person and sixty-three counts of possession of child
pornography. 17 A jury returned a guilty verdict on all counts. 18 On
appeal, Appellant made the same arguments that the defendant in Ritz
made. But the text of the human trafficking statute does not support
Appellant’s arguments any more than it does those made in Ritz.
Section 20A.03 of the Penal Code makes it a crime if a person, during a
period that is 30 or more days in duration, engages two or more times
in conduct that constitutes the offense of “trafficking of persons” against
14
Id.
15
Id. at 386.
16
See Barrett, 608 S.W.3d at 95–96, 98; Benavides, 2019 WL 5580260, at *5.
17
Griffin v. State, No. 03-19-00429-CR, 2020 WL 7640149, at *1 (Tex. App.—Austin
December 23, 2020).
18
Id.Griffin Concurring — 5
one or more victims. 19 Section 20A.02(a) of the Penal Code lists all the
different ways in which a person can commit the offense of “trafficking
of persons.”
(a) A person commits an offense if the person knowingly:
(1) traffics another person with the intent that the trafficked
person engage in forced labor or services;
(2) receives a benefit from participating in a venture that
involves an activity described by Subdivision (1), including
by receiving labor or services the person knows are forced
labor or services;
(3) traffics another person and, through force, fraud, or
coercion, causes the trafficked person to engage in conduct
prohibited by:
(A) Section 43.02 (Prostitution);
(B) Section 43.03 (Promotion of Prostitution);
(C) Section 43.04 (Aggravated Promotion of
Prostitution); or
(D) Section 43.05 (Compelling Prostitution);
(4) receives a benefit from participating in a venture that
involves an activity described by Subdivision (3) or engages
in sexual conduct with a person trafficked in the manner
described in Subdivision (3);
(5) traffics a child with the intent that the trafficked child
engage in forced labor or services;
19
Tex. Penal Code § 20A.03 (“Continuous Trafficking of Persons”); see also Tex. Penal Code
§ 20A.02 (“Trafficking of Persons”).
Griffin Concurring — 6
(6) receives a benefit from participating in a venture that
involves an activity described by Subdivision (5), including
by receiving labor or services the person knows are forced
labor or services;
(7) traffics a child and by any means causes the trafficked
child to engage in, or become the victim of, conduct
prohibited by:
(A) Section 21.02 (Continuous Sexual Abuse of Young
Child or Children);
(B) Section 21.11 (Indecency with a Child);
(C) Section 22.011 (Sexual Assault);
(D) Section 22.021 (Aggravated Sexual Assault);
(E) Section 43.02 (Prostitution);
(F) Section 43.03 (Promotion of Prostitution);
(G) Section 43.04 (Aggravated Promotion of
Prostitution);
(H) Section 43.05 (Compelling Prostitution);
(I) Section 43.25 (Sexual Performance by a Child);
(J) Section 43.251 (Employment Harmful to Children);
or
(K) Section 43.26 (Possession or Promotion of Child
Pornography); or
(8) receives a benefit from participating in a venture that
involves activity described by Subdivision (7) or engages in
Griffin Concurring — 7
sexual conduct with a child trafficked in the manner
described in Subdivision (7). 20
The text of the statute makes clear that the legislature sought to
criminalize both human trafficking and the exploitation of human
trafficking victims. Though the statute can apply in situations in which
there are two parties involved in the trafficking—the trafficker and the
person exploiting the child victim—the statutory terms are not limited
to only those situations. First, section 20A.02(a)(1) criminalizes the
trafficking of a person for forced labor, while section 20A.02(a)(2)
criminalizes the use of that labor. 21 Section 20A.02(a)(5) criminalizes
the trafficking of a child for forced labor, while Section 20A.02(a)(6)
criminalizes the use of that labor. 22 In both situations, the person
receiving the benefit of the slave labor is just as culpable as the person
providing the slave labor because both parties are responsible for the
exploitation.
Additionally, Section 20A.02(c) provides that “if conduct
constituting an offense under this section also constitutes an offense
under another section of this code, the actor may be prosecuted under
20
Tex. Penal Code § 20A.02(a).
21
Compare Tex. Penal Code § 20A.02(a)(1) with Tex. Penal Code § 20A.02(a)(2).
22
Compare Tex. Penal Code § 20A.02(a)(5) with Tex. Penal Code § 20A.02(a)(6).
Griffin Concurring — 8
either section or under both sections.” 23 The legislature limited this in
subjection (d) by prohibiting (with some exceptions) simultaneous
prosecution for both continuous human trafficking and continuous
sexual abuse of a child. 24 Under the plain text of the statute, the
legislature sought to provide as much protection for exploited people
and children as possible by allowing prosecution for both human
trafficking and the product of human trafficking. There is no textual
suggestion that the person who traffics in children should be treated
differently than those who exploit those children.
Second, the legislature’s use of passive voice in subjection (7)
demonstrates a legislative intent to protect children, not those who
traffic them. 25 By using the passive voice, the legislature intentionally
left the identity of who abuses the child open. Had the legislature truly
envisioned a required showing of “two culpable actors” within the same
offense, as Appellant argues, it would have said so. But it did not specify
in the statute that the person engaging in human trafficking as
delineated in subsection (7) had to be different from the person
23
Tex. Penal Code § 20A.02(c).
24
Tex. Penal Code § 20A.02(d).
25
See Tex. Penal Code § 20A.02(a)(7).
Griffin Concurring — 9
victimizing the child. 26 Indeed, the statute specifically allows that a
trafficker can be guilty of trafficking if he causes the victimization of the
child “by any means.” 27 The legislature clearly contemplated
criminalizing situations in which the trafficker engages in both the traffic
and the victimization. 28
Finally, the use of active voice in subsection (8) would seem to put
any debate to rest. 29 Under that subsection, a person commits an
offense if he engages in sexual conduct with a child trafficked in a
manner described in subjection (7). 30 Just as subdivision (7) places no
limitation on who victimizes the trafficked child, subdivision (8) places
no limitation on who traffics the child “in the manner described in
Subdivision (7).”31 Had the legislature truly intended an “either-or”
limitation on prosecution, it would have written “engaged in sexual
conduct with a child trafficked by another.” It did not. The plain text
26
Id.
27
Id.
28
Indeed, this Court just recently considered a case in which the human trafficker did just
that. See Williams v. State, No. PD-0477-19, --- S.W.3d ---, ---–--, 2021 WL 2132167, *1–
4 (Tex. Crim. App. May 26, 2021).
29
See Tex. Penal Code § 20A.02(a)(8).
30
Id.
31
Compare Tex. Penal Code § 20A.02(a)(8) with Tex. Penal Code § 20A.02(a)(7).
Griffin Concurring — 10
demonstrates our legislature’s focus upon protecting exploited children,
not exempting human traffickers from criminal liability when they abuse
those they traffic.
Though the statutory terms allow for broad application, they do
not lead to absurd results. The bar for concluding that a textual
interpretation of a statute would lead to absurd results is, and should be
high. 32 Even if a consequence is unintended, improvident, or
inequitable, it may still fall short of being unthinkable or unfathomable. 33
Regardless of how broad Appellant regards the statutory terms, it is still
at least possible that our legislature intended to classify Appellant’s
conduct as trafficking because it regarded removing a child from the
safety of her home as particularly egregious conduct. 34 This is a policy
determination that our legislature gets to make. We are not at liberty
to disturb it.
With these thoughts, I join the Court’s order to refuse discretionary
review.
Filed: October 6, 2021
Publish
32
Combs v. Health Care Services Corp., 401 S.W.3d 623, 630 (Tex. 2013).
33
Id.34
Ritz, 481 S.W.3d at 386.