State v. Gloria Elizabeth Romero-Perez

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00122-CR
The State of Texas, Appellant
v.
Gloria Elizabeth Romero-Perez, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2016-659, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION
The State of Texas appeals from the district court’s order granting the motion for
new trial filed by appellee Gloria Elizabeth Romero-Perez, who was convicted of the offense of
continuous trafficking of persons and sentenced to 25 years’ imprisonment. See Tex. Penal Code
§ 20A.03. In two points of error on appeal, the State argues that the district court lacked
jurisdiction to grant a new trial and, in the alternative, abused its discretion in granting Romero-
Perez a new trial. Although we disagree with the State’s assertion that the district court lacked
jurisdiction to grant a new trial, we agree that in this case and on this record, the district court
should have denied Romero-Perez’s motion for new trial. Accordingly, we will reverse the
district court’s order.
BACKGROUND
In a two-count indictment, the State charged Romero-Perez with the offenses of
continuous trafficking of persons and sale or purchase of a child. Both offenses involved
Romero-Perez’s niece, A.L. (the child), who was fifteen years old at the time of the alleged
offenses. Based on the evidence presented at trial, which we discuss in detail below, a jury
convicted Romero-Perez of the trafficking offense but acquitted her of the offense of sale or
purchase of a child. The jury then assessed punishment at 25 years’ imprisonment.
At the conclusion of trial, the district court forgot to impose Romero-Perez’s
sentence in open court, see Tex. Code Crim. Proc. art. 42.03, § 1, and neither party noticed the
oversight at that time. This resulted in a complicated post-trial procedural history, summarized
in previous orders of this Court, 1 that included abating the appeal and remanding the case to the
district court on four occasions, first for imposition of sentence and later for a hearing on a bill of
exception filed by the State. See Tex. R. App. P. 33.2. Additionally, Romero-Perez filed and the
district court granted two motions for new trial, before and after imposition of sentence. See id.
21.4(a), 21.8(a) (providing that deadlines for filing and ruling upon motion for new trial are
calculated based on date after which trial court imposes or suspends sentence in open court).
However, at the hearing on the State’s bill of exception, the parties agreed to proceed only on the
1
See State v. Romero-Perez, No. 03-18-00122-CR, 2019 Tex. App. LEXIS 3102 (Tex.
App.—Austin Apr. 18, 2019) (per curiam order) (mem. op., not designated for publication);
2019 Tex. App. LEXIS 545 (Tex. App.—Austin Jan. 29, 2019) (per curiam order) (mem. op., not
designated for publication); 2018 Tex. App. LEXIS 8149 (Tex. App.—Austin Oct. 5, 2018) (per
curiam order) (mem. op., not designated for publication); 2018 Tex. App. LEXIS 4149 (Tex.
App.—Austin June 8, 2018) (per curiam order) (mem. op., not designated for publication).
2
district court’s order granting Romero-Perez’s second motion for new trial. 2 The State appeals
from that order. See Tex. Code Crim. Proc. art. 44.01(a)(3); see also Tex. R. App. P. 27.1(b).
ANALYSIS
Jurisdiction
In its first point of error, the State asserts that the district court lacked jurisdiction
to grant Romero-Perez’s second motion for new trial. Specifically, the State contends that after
the appeal was reinstated in this Court following the district court’s imposition of sentence, the
district court lost jurisdiction to take further action in the case, including granting a new trial.
2
Specifically, at the hearing, defense counsel for Romero-Perez represented, “And I
want to make clear that we are asking the Court—since the Court of Appeals told us we’re
starting again, we are asking the Court not to consider the previous Motion for New Trial at all.”
Instead, defense counsel was relying on “the latest Motion for New Trial granted by the Court.”
The State, which had been arguing that the order on the first motion for new trial was “void”
(a position that the State has maintained throughout this appeal), sought clarification from
defense counsel: “Now if I understand [defense counsel] right, they’re no longer relying on that
[first] order.” Defense counsel replied, “That’s—that’s correct.” Later at the hearing, defense
counsel reiterated, “I just want to clarify in the order procedurally so there’s not any question of
what we’re dealing with that the Motion for New Trial order—or the Motion for New Trial that
we’re talking about is the latest one that was filed, not the one filed prior to” imposition of
sentence. The State indicated its assent to proceeding on the second order, and the district court
summarized the parties’ understanding as follows: “So it sounds like, just for the record, the
prosecutor; defense counsel; and the Court’s understanding is that we are proceeding on the new
Motion for New Trial and that the previous Motion for New Trial, which was done before
pronouncement, is moot.”
Defense counsel maintains in her brief on appeal that at this hearing, “both parties agreed
to proceed on the appeal of the second order and agreed that Order 1 was moot.” Additionally,
in her second motion for new trial, Romero-Perez represented that she was proceeding on the
second motion “without reliance on or re-urging of any Motion for New Trial previously
considered by the trial court.” Based on these representations, we conclude that Romero-Perez
has waived any reliance on the district court’s order granting her first motion for new trial, and
thus we need not address the State’s arguments challenging that order. See Tex. R. App. P. 47.1.
3
The general rule is that “[o]nce the record has been filed in the appellate court, all
further proceedings in the trial court . . . will be suspended until the trial court receives the
appellate-court mandate.” Tex. R. App. P. 25.2(g). However, the general rule is subject to
exceptions “provided otherwise by law or by these [appellate] rules.” Id. One such exception is
that a trial court is permitted to rule on a timely filed motion for new trial when the appellate
record has been filed prematurely. See Taylor v. State, 163 S.W.3d 277, 280–84 (Tex. App.—
Austin 2005, pet. dism’d). It should not be “the trial court clerk and court reporter who decide
when jurisdiction of a criminal case passes under the rules from the trial court to the appellate
court,” and “premature actions which could affect the times when courts lose or obtain personal
jurisdiction of a case should be avoided, whether done inadvertently or by design.” Id. at 281–
82. Accordingly, this Court has declined to “interpret the jurisdictional bar of Rule 25.2(g) to
foreclose the trial court’s consideration of a timely filed motion for new trial.” Id. at 282.
Additionally, it is well established that the appellate court may restore jurisdiction
in the trial court by abating the appeal and remanding the case to the trial court for further action.
See Tex. R. App. P. 44.4; LaPointe v. State, 225 S.W.3d 513, 520–22 (Tex. Crim. App. 2007);
Green v. State, 906 S.W.2d 937, 940 n.4 (Tex. Crim. App. 1995); Duncan v. Evans, 653 S.W.2d
38, 40 (Tex. Crim. App. 1983). The trial court’s jurisdiction upon remand is not unlimited, see
Lewis v. State, 711 S.W.2d 41, 43 (Tex. Crim. App. 1986), but it includes the ability to hold a
hearing on a motion for new trial in certain cases, see Martinez v. State, 74 S.W.3d 19, 21–22
(Tex. Crim. App. 2002), make findings of fact when the trial court is required by law to do so,
see State v. Cullen, 195 S.W.3d 696, 698–99 (Tex. Crim. App. 2006), hold a hearing on any
timely filed bill of exception, see Spence v. State, 758 S.W.2d 597, 599–600 (Tex. Crim. App.
1988), conduct other hearings as required by law, see Hutchinson v. State, 86 S.W.3d 636, 639–
4
40 & n.1 (Tex. Crim. App. 2002); see also Tex. R. App. P. 38.8(b), and impose or suspend a
defendant’s sentence in open court, see Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—
Texarkana 2011, no pet.).
Here, the district court’s jurisdiction was restored when this Court abated the
appeal and remanded the case to the district court for imposition of Romero-Perez’s sentence in
open court. See Tex. R. App. P. 44.4(b). In compliance with this Court’s order, the district court
imposed sentence in open court on February 5, 2019. The imposition of sentence triggered
automatically the 30-day deadline for Romero-Perez to file a motion for new trial, see id.
21.4(a), and the 75-day deadline for the district court to rule on the motion for new trial, see id.
21.8(a). The record reflects that Romero-Perez timely filed her motion for new trial on March 6,
2019, and the district court timely granted that motion on March 12, 2019, via written order.
It is true, as the State observes, that the appeal was reinstated in this Court on
March 7, 2019, before the trial court signed its order granting the second motion for new trial.
However, the reinstatement occurred upon the premature filing in this Court of the appellate
record. The record did not contain Romero-Perez’s motion for new trial or the district court’s
order granting the motion for new trial, even though the district court informed the parties at the
February 5, 2019 hearing that it would allow Romero-Perez either to re-urge her previous motion
or file a new motion for new trial and that the court would give her a “new ruling” either way.
See id. 21.6, 21.8; see also id. 34.5(a)(6) (providing that clerk’s record must include “any post-
judgment motion, and the court’s order on the motion”); see also id. 35.2(c) (providing that if
motion for new trial is granted, appellate record must be filed “within 60 days after the order
granting the motion is signed” (emphasis added)). Romero-Perez filed and the district court
ruled on the new motion for new trial within the time periods permitted by Rule 21.8(a), and we
5
cannot conclude in this case that the premature filing of the appellate record deprived the district
court of jurisdiction to grant Romero-Perez’s timely filed motion for new trial. 3 See Taylor, 163
S.W.3d at 281–82; Gipson v. State, 669 S.W.2d 351, 353 (Tex. App.—Fort Worth 1984, no pet.);
see also Bitterman v. State, 195 S.W.3d 777, 779 (Tex. App.—Waco 2006, pet. ref’d) (holding
that when defendant “timely filed his motion for new trial,” “the trial court had jurisdiction to
hear it”); In re State ex rel. Sistrunk, 142 S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.]
2004, orig. proceeding) (discussing trial court’s jurisdiction, including trial court’s “inherent
power to correct, modify, vacate, or amend its own rulings so long as the court does not exceed a
statutory time table,” which is “75 days after sentencing” for motions for new trial).
We overrule the State’s first point of error.
3
In arguing that the trial court lacked jurisdiction to grant a new trial, the State relies on
this Court’s opinion in In re Escamilla, 561 S.W.3d 711 (Tex. App.—Austin 2018, orig.
proceeding). In that case, the trial court, after conducting an evidentiary hearing, granted the
defendant’s motion to set aside the verdict. Id. at 714. The State appealed. Id. Subsequently,
the trial court, after it had lost jurisdiction over the case and without any authorization from this
Court, scheduled an additional hearing on related matters in the case, including two applications
for writ of habeas corpus asserting that any retrial would be barred by double jeopardy and a
motion to disqualify the County Attorney’s Office from prosecuting the case. Id. This Court
prohibited the trial court from proceeding with that hearing, concluding that “[a]ny further action
by the trial court relating to the subject matter of the State’s appeal would contravene the
properly invoked jurisdiction of this Court.” Id. at 717.
This case is distinguishable from Escamilla. Here, the district court, in accordance with
this Court’s abatement orders, the Code of Criminal Procedure, and the Rules of Appellate
Procedure, imposed Romero-Perez’s sentence in open court, see Tex. Code Crim. Proc. art.
42.03, § 1, ruled on Romero-Perez’s timely filed motion for new trial, see Tex. R. App. P.
21.8(a), and held a hearing on the State’s timely filed bill of exception, see id. 33.2. Thus, unlike
the trial court’s actions in Escamilla, the district court’s actions in this case were authorized by
this Court and did not contravene this Court’s jurisdiction.
6
Merits of the motion
In its second point of error, the State argues that the district court abused its
discretion in granting Romero-Perez’s second motion for new trial on the merits of the grounds
alleged. 4 In this case and on this record, we agree.
Standard of review
“We review a trial judge’s ruling on a motion for new trial for an abuse of
discretion.” International Fid. Ins. Co. v. State, 586 S.W.3d 9, 12 (Tex. Crim. App. 2019) (citing
Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017); State v. Herndon, 215 S.W.3d 901,
906-07 (Tex. Crim. App. 2007)). “That discretion, however, is not unbounded or unfettered.”
State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). “A trial judge does not have
authority to grant a new trial unless the first proceeding was not in accordance with the law.”
Herndon, 215 S.W.3d at 907. “He cannot grant a new trial on mere sympathy, an inarticulate
hunch, or simply because he personally believes that the defendant is innocent or ‘received a raw
deal.’” Id. “To grant a new trial for a non-legal or legally invalid reason is an abuse of
discretion.” Id. Thus, “a trial court would not generally abuse its discretion in granting a motion
for new trial if the defendant: (1) articulated a valid legal claim in his motion for new trial;
4
As noted earlier, see supra n.2, Romero-Perez represented in her second motion for new
trial that she was proceeding on that motion “without reliance on or re-urging of any Motion for
New Trial previously considered by the trial court.” Consequently, the district court’s order
granting the second motion for new trial may be upheld, if at all, only on the grounds alleged in
that motion. See State v. Zalmon, 400 S.W.3d 590, 594–95 (Tex. Crim. App. 2013) (concluding
that trial court abused its discretion in granting motion for new trial on grounds not alleged in
motion; “[w]e have repeatedly held that ‘[a]n essential element of [a motion for new trial] is that
the matter of error relied upon for a new trial must be specifically set forth therein.” (quoting
Harvey v. State, 201 S.W.2d 42, 45 (Tex. Crim. App. 1947))); State v. Provost, 205 S.W.3d 561,
570 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (observing that trial court has “no
authority” to grant motion for new trial based on ground not raised in motion). Accordingly, we
limit our review to those grounds. See Tex. R. App. P. 47.1.
7
(2) produced evidence or pointed to evidence in the trial record that substantiated his legal claim;
and (3) showed prejudice to his substantial rights under the standards in Rule 44.2 of the Texas
Rules of Appellate Procedure.” Id. at 909. Stated another way, “trial courts do not have the
discretion to grant a new trial unless the defendant demonstrates that his first trial was seriously
flawed and that the flaws adversely affected his substantial rights to a fair trial.” Id.
In this case, Romero-Perez asserted in her second motion that she was entitled to
a new trial because “the verdict was contrary to the law and evidence” and because “the trial
court erred in overruling the defendant’s motion for a directed verdict.” These grounds
challenge the legal sufficiency of the evidence supporting Romero-Perez’s conviction and
nothing more. See Zalmon, 400 S.W.3d at 594 (emphasizing that Court of Criminal Appeals has
held repeatedly that “allegations that a verdict was against the law and the evidence raised a
sufficiency challenge and only a sufficiency challenge” and “did not raise any other claim”);
Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) (“A challenge to the trial judge’s
ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the
evidence to support the conviction.”). Courts must be mindful that “when a jury returns a guilty
verdict and the trial court grants the defendant’s motion for new trial based upon insufficiency of
the evidence . . . double jeopardy prevents the trial court from entering any other judgment than
an acquittal.” State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996); see also Hudson v.
Louisiana, 450 U.S. 40, 43 (1981) (“[A] reversal ‘due to a failure of proof at trial,’ where the
State received a ‘fair opportunity to offer whatever proof it could assemble,’ bars retrial on the
same charge.” (quoting Burks v. United States, 437 U.S. 1, 16 (1978)).
“[A] motion for new trial based on insufficiency of the evidence presents a legal
rather than a factual question,” and the trial court “must apply the same legal test” that appellate
8
courts use when reviewing sufficiency challenges on appeal. State v. Daniels, 761 S.W.2d 42,
45 (Tex. App.—Austin 1988, pet. ref’d). “Accordingly, when deciding whether to grant a new
trial challenging the legal sufficiency of the evidence, the trial court views the evidence in the
light most favorable to the verdict and determines whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.” State v. Medina, 536
S.W.3d 528, 532 (Tex. App.—San Antonio 2017, pet. ref’d); see Jackson v. Virginia, 443 U.S.
307, 319 (1979); Braughton v. State, 569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018). “If any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt, then the trial court abused its discretion in granting the motion for new trial.” Medina,
536 S.W.3d at 532; see State v. Fuller, 480 S.W.3d 812, 819-20 (Tex. App.—Texarkana 2015,
pet. ref’d); Kelley v. State, 429 S.W.3d 865, 876 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d); Daniels, 761 S.W.2d at 45.
Principles governing sufficiency review
“Sufficiency review essentially addresses whether ‘the government’s case was so
lacking that it should not have even been submitted to the jury.’” Musacchio v. United States,
136 S. Ct. 709, 715 (2016) (quoting Burks, 437 U.S. at 16). “On sufficiency review, a reviewing
court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due
process requires: a ‘meaningful opportunity to defend’ against the charge against him and a jury
finding of guilt ‘beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 314–15).
“That limited review does not intrude on the jury’s role ‘to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.’” Id. (quoting Jackson, 443 U.S. at 319). “The jury is the sole judge of credibility and
9
weight to be attached to the testimony of witnesses.” Merritt v. State, 368 S.W.3d 516, 526
(Tex. Crim. App. 2012) (citing Jackson, 443 U.S. at 319). “We permit juries to draw multiple
reasonable inferences from facts as long as each is supported by the evidence presented at trial.”
Id. A reviewing court is not permitted to “reevaluate the weight and credibility of the evidence
in the record and thereby substitute [its] own judgment for that of the factfinder.” Braughton,
569 S.W.3d at 608. Instead, a reviewing court is to “adhere to the Jackson standard and
determine whether the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). “When the record supports
conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict and
defer to that determination.” Merritt, 368 S.W.3d at 525–26 (citing Jackson, 443 U.S. at 326).
When reviewing the sufficiency of the evidence to support a conviction, courts
are to “measure the evidence by the elements of the offense as defined by the hypothetically
correct jury charge.” Braughton, 569 S.W.3d at 608 (citing Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “This hypothetically correct jury charge accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex.
Crim. App. 2019) (citing Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App.
2018)). “‘As authorized by the indictment’ means the statutory elements of the offense as
modified by the charging instrument.” Id. This standard applies “regardless of the specific
wording of the jury charge actually given” and “ensures that a judgment of acquittal is reserved
10
for those situations in which there is an actual failure in the State’s proof of the crime rather than
a mere error in the jury charge submitted.” Malik, 953 S.W.2d at 240.
The charged offense
The State charged Romero-Perez with the offense of continuous trafficking of
persons, committed on or about October 29, 2015, through on or about April 1, 2016. A person
commits that offense “if, during a period that is 30 or more days in duration, the person engages
two or more times in conduct that constitutes an offense under Section 20A.02 [trafficking of
persons] against one or more victims.” Tex. Penal Code § 20A.03(a). As charged in the
indictment, a person commits a trafficking offense under Section 20A.02 “if the person
knowingly traffics a child and by any means causes the trafficked child to engage in, or become
the victim of” the offenses of indecency with a child, sexual assault, or sexual performance by a
child, id. § 20A.02(a)(7)(B), (C), (I), or by “receiv[ing] a benefit from participating in a venture
that involves” those offenses, id. § 20A.02(a)(8). 5 “Traffic,” as defined in the Penal Code,
means “to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any
means.” Id. § 20A.01(4). “Benefit,” as defined in the Penal Code, means “anything reasonably
regarded as economic gain or advantage, including benefit to any other person in whose welfare
the beneficiary is interested.” Id. § 1.07(a)(7).
5
The indictment contained three paragraphs charging Romero-Perez with trafficking
under subsection (7) and three paragraphs charging Romero-Perez with trafficking under
subsection (8).
11
Evidence presented at trial
Romero-Perez was the aunt of the child, who was born in Honduras on September
8, 2000. When the child was thirteen years old, Romero-Perez arranged to smuggle the child and
the child’s grandmother into the United States. Romero-Perez told the child that she had paid
approximately $6,000 for her passage. Multiple witnesses provided testimony tending to show
that upon the child’s arrival in Texas, Romero-Perez acted as the child’s primary caretaker. The
child lived with Romero-Perez and was required to follow her rules.
When the child first arrived in Texas, Romero-Perez enrolled her in school.
However, by February 2015, Romero-Perez had withdrawn the child from school and made her
work full time caring for Romero-Perez’s children, cleaning Romero-Perez’s house, and cleaning
other houses and apartments in the area as part of Romero-Perez’s home-cleaning business. The
child was not paid for any of this work, and the child claimed that Romero-Perez had forced her
to work “to pay back her aunt for the $6,000 it cost to have her brought into the country.”
In April 2015, the child was sent to live temporarily with Romero-Perez’s sister.
While the child was living there, she met Julio Jimenez, a 33-year-old man, and they became
friends. After spending approximately four weeks with Romero-Perez’s sister, the child returned
home but remained in contact with Jimenez.
In September 2015, the child asked Romero-Perez for the money that the child
believed she had earned from working for Romero-Perez. According to the child, Romero-Perez
responded by slapping her, which prompted the child to run away from home on September 21,
2015. The child stayed with Jimenez for three days. After that, she went to her grandmother’s
house. The child’s grandmother learned that the child had stayed with Jimenez, and she called
12
Romero-Perez to let her know that the child had been found. The child indicated that she wanted
to stay with the grandmother, and the grandmother agreed that the child could live with her.
Jimenez testified that later that month, Romero-Perez called Jimenez and told him
that she wanted to talk to him “about the situation that was happening with [the child].”
Romero-Perez explained to Jimenez that she and the child were “having problems” and “could
not live together” anymore but that Romero-Perez “had brought her to this country . . . from
Honduras in order for [the child] to help her work.” Romero-Perez also told Jimenez that she
had paid $6,000 to “bring her here,” and “if she’s going to be with you, then you have to pay me
that money that I paid to—to bring her over here.”
On September 29, 2015, Jimenez met with Romero-Perez and the child at the
home of the child’s grandmother. Angel Cordero, the husband of the child’s grandmother, also
attended the meeting. Jimenez testified that at this meeting, Romero-Perez told him that the
relationship that he had with the child was “a problem for [Jimenez] and for her” because the
child was a minor. Romero-Perez explained that she “was not just going to spend money just for
fun,” and that Jimenez “had to pay her the money that she had spent to bring [the child] over
here.” Jimenez added, “I don’t know what kind of problems that they were having, but she said
take her because [the child and Romero-Perez] cannot live together.” Romero-Perez also told
Jimenez that if he did not pay her $6,000, “she was going to call the police and that [he] was
going to be in jail.” Jimenez testified that at the time of the meeting, he believed that Romero-
Perez was attempting to sell the child to him. Initially, Jimenez refused to pay, but Romero-
Perez insisted that he “had to pay . . . or [he] was going to suffer the consequences.” Jimenez
eventually agreed, and the two began negotiating the terms of payment. Romero-Perez told
Jimenez that he needed to pay her $1,000 per month, but Jimenez responded that he could not
13
afford that amount. Romero-Perez and Jimenez agreed that Jimenez would pay her $700 per
month, with the first payment due in twenty days.
The child provided similar testimony regarding the meeting. She testified that
Romero-Perez told Jimenez that she wanted him to pay her $6,000 “to pay for the trip that she
had spent on [her].” The State asked the child, “Did Gloria want Julio to take you?” The child
answered, “Yes.” The State also asked the child, “Do you know why Gloria wanted Julio to take
you?” The child answered, “Because she felt that the first day that I left with Julio, we had had
sex.” The child testified that Jimenez refused to pay Romero-Perez until she threatened to call
the police and immigration. After Romero-Perez threatened him, Jimenez agreed to pay
Romero-Perez $700 on the 29th of each month, on the condition that she provide him with
written receipts. The child also testified that Romero-Perez gave Jimenez some condoms.
The other person who had attended the meeting, Angel Cordero, the
grandmother’s husband, provided conflicting accounts of what had occurred. At trial, Cordero
testified that Romero-Perez had not “demanded” money from Jimenez. Instead, Cordero claimed
that Jimenez and the child had agreed to pay Romero-Perez voluntarily because the child “was
tired of [Romero-Perez] asking for the money.” Cordero denied that Romero-Perez had
threatened to report Jimenez to the police, that she had negotiated payment with Jimenez, and
that she had told Jimenez to “take” the child from her.
However, during an interview with police officers, a video recording of which
was admitted into evidence, Cordero told the officers that prior to the meeting, Romero-Perez
had told Cordero and the grandmother to call Jimenez and tell him that if he did not “come and
pick up [the child], she was going to call the cops on him.” Cordero also informed the officers
that at the meeting, Romero-Perez told Jimenez that he was “going to have to take [the child]
14
because I don’t want her anymore,” that Jimenez was “going to have to pay me for what I wasted
for bringing her here,” that the amount of the payment would be $700 or $800 per month, and
that if Jimenez did not pay her, she would “call the cops on him.” When confronted with the
recording of his statements to the officers, Cordero claimed that what he had told the officers
“wasn’t really true because at that moment [he] was upset or angry” and that “those are things
that [he] really [doesn’t] even remember.”
The grandmother, during her testimony, denied that the meeting had occurred.
However, the grandmother was also interviewed by the police at the same time as her husband,
and during that interview, she indicated that she had knowledge of the meeting. Additionally,
the child testified that the grandmother had called Jimenez prior to the meeting and told him that
Romero-Perez “wanted to see him.” Moreover, a transcript of a voicemail recording from the
grandmother to Romero-Perez was admitted into evidence, and it included the following:
Look Gloria, I know that you have a point in everything, but I don’t have
anything to do with the mess [the child] did; do you understand? I want to be in
peace. They said you made a deal with that guy, but I don’t know what kind of a
deal it is. I sent him a message just like you told me to but I don’t want to [be]
involved in this anymore. You and that guy made a deal. I don’t know what deal,
right, but you all do. . . .
After the meeting, the child went to live with Jimenez, and they had sexual
intercourse at Jimenez’s residence on multiple occasions. The child estimated that they had sex
approximately ten times, while Jimenez provided conflicting estimates ranging from three to
fifteen times. There was also conflicting evidence as to when the child and Jimenez began
having sex. They both testified they did not have sex during the three days that the child had run
away from home. However, Jimenez testified that they had sex shortly thereafter, while the child
15
testified that they waited two weeks after they began living together. Eventually, the child
became pregnant with Jimenez’s baby. 6 Romero-Perez learned of the pregnancy in
January 2016. According to the child, when Romero-Perez learned of the pregnancy, she
threatened to deport the child and warned her “that the State would keep [the baby].”
Jimenez testified that during the time that the child was living with him, he made
at least three payments to Romero-Perez, who gave him handwritten receipts for two of the
payments in accordance with their agreement. The receipts, which were admitted into evidence,
were dated October 29, 2015, and November 29, 2015, signed by Romero-Perez, and stated that
payment had been “received from” Jimenez. The first receipt stated that the “amt of account”
was $6,000.00, the “amt paid” was $900.00, 7 and the “balance due” was $5,100.00. The second
receipt stated that the “amt of account” was $5,100.00, the “amt paid” was $700.00, and the
“balance due” was $4,400.00. The child also documented some of the payments in a personal
notebook that she kept. Copies of three of the child’s entries in the notebook were admitted into
evidence, documenting partial payments that were made on October 2, 2015, October 25, 2015,
and January 15, 2016. Additionally, Jimenez testified that Romero-Perez prepared a handwritten
document at Jimenez’s request memorializing their agreement after Romero-Perez had made the
first payment. The document, a copy of which was admitted into evidence, provided the
following:
6
There is conflicting evidence in the record as to when the child became pregnant, but it
appears to have been sometime between October and December 2015. DNA testing confirmed
Jimenez’s paternity of the baby.
7
The child testified that the first payment included an additional $200 that Romero-Perez
had demanded “to cancel [the child’s] case with the immigration attorney.”
16
Nov. 1, 2015
Mr. Julio Gimenez [sic] and [the child] owe me the amount of $6,000 and we
agreed that they would give me payments of $700 each month on the 29th day of
each month. I have received the first payment of $700 on the 31st day of October
2015.
They cannot fall behind on payment.
$6,000 – Principal
$ 700 Credit
$5,300 Pending
At some point in January 2016, Jimenez refused to make any more payments.
This upset Romero-Perez, who began visiting Jimenez at his residence. Jimenez worked at a
ranch in Fischer, Texas, and he lived in a trailer on the ranch. Jimenez testified that Romero-
Perez came to the ranch on multiple occasions, first demanding payment and later demanding the
return of the child. One of Jimenez’s co-workers at the ranch, Yemie Chacaj, testified that he
saw Romero-Perez at the ranch on three occasions. Romero-Perez also began sending
threatening text messages to Jimenez, including the following:
Julio, since you’re at the restaurant, I need for you to retrieve my money. We all
have problems. It’s been more than a month since you’ve given me money, and
the truth is, if you don’t pay me anything today then on the 29th I don’t want
excuses.
You’re not going to answer? Well, then I’ll see you at the ranch.
Hello, Julio. Get [the child] to show you the messages that I sent to you, please.
Because that way you know what is going on.
I am not going to call you all anymore. I tried and with you all, nothing can be
done. I was in agreement with [the child’s] situation but I am going to take
precautions. I am not going to say anything more.
17
I’m going to request that they go find her, Julio. [The child] is a minor and I have
custody and that’s why I’m going to take action.
I figured out what you all did. So then I’m going to make you and everyone
understand that I am not y’all’s toy. The lady, Victoria, should not have gotten
involved knowing where she stands with immigration.
You should understand that she is a minor and I feel sorry for you, I have the
custody, and if I feel like it, I will go get you wherever you are.
Now is when you will get to know me, Julio.
On April 1, 2016, after Romero-Perez had obtained legal custody of the child, 8
Romero-Perez went to the Kyle Police Department and reported the child as a runaway.
According to Officer Juan Bazaldua, who spoke with Romero-Perez at the station, “She told me
[the child] was six months pregnant and was living with Julio Jimenez, who was the father of the
unborn child, and that . . . [the child] was currently at Julio’s house, which was in Fischer,
Texas.” Romero-Perez also told Bazaldua that the child was fifteen years old and that Jimenez
was in his thirties, and she provided Bazaldua with Jimenez’s address.
Deputy Daniel Luna of the Comal County Sheriff’s Office was dispatched to
Jimenez’s residence. Upon arrival, Deputy Luna found the child but was unable to communicate
with her because the child spoke only Spanish. After finding a worker at the ranch who could
translate for him, Luna asked the child to provide identifying information. In response, the child
“presented what appeared to look like two handwritten receipts” for payment. According to
Luna, the child told a Spanish-speaking deputy that she had been “sold” to Jimenez by her aunt.
Jimenez was arrested at the ranch, and the police began investigating him and Romero-Perez.
8
On March 25, 2016, Romero-Perez was appointed the sole managing conservator of the
child.
18
Following the police investigation, the State charged both Jimenez and Romero-
Perez with trafficking offenses. Jimenez pleaded guilty to the offenses of continuous trafficking
of persons, sale or purchase of a child, sexual assault of a child, and indecency with a child by
contact. He was sentenced to 30 years’ imprisonment for trafficking, 10 years’ imprisonment for
sale or purchase of a child, and 20 years’ imprisonment for sexual assault and indecency, with
the sentences to run concurrently. Copies of Jimenez’s judgments of conviction were admitted
into evidence.
Analysis
Romero-Perez asserts that the evidence is insufficient to prove that Romero-
Perez: (1) “caused” the child to engage in or become the victim of prohibited sexual conduct;
(2) received a “benefit” from participating in a venture that involved a trafficking offense; and
(3) engaged in “trafficking” as that term is defined in the Penal Code. In this case and on this
record, we disagree with these assertions.
We first address causation. “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 § 6.04(a). Romero-Perez asserts that “there is no
evidence that [she] caused [the child] to engage in sexual contact” with Jimenez. According to
Romero-Perez, because the child met Jimenez, ran away from home to be with him, and stayed
with Jimenez for three days “without [Romero-Perez’s] knowledge or intervention,” Romero-
Perez was not responsible for the child engaging in prohibited sexual conduct with Jimenez.
19
However, on this record, the jury could have reasonably inferred otherwise.
Although the child’s relationship with Jimenez began before Romero-Perez became aware of it,
there was conflicting evidence on when the relationship became sexual. The child testified that
she did not have sex with Jimenez until two weeks after she had moved in with him. This was
after the meeting at which Romero-Perez made an agreement with Jimenez to receive payment in
exchange for him “taking” the child to live with him. According to the child, Romero-Perez also
provided Jimenez with condoms. At the time of the meeting, both Jimenez and the child
believed that Romero-Perez was “selling” the child to Jimenez. The jury could have reasonably
inferred that Romero-Perez’s actions in arranging the meeting, negotiating the agreement, and
providing condoms to Jimenez encouraged Jimenez either to initiate sexual conduct with the
child or, if he had already done so, to continue engaging in sexual conduct with the child.
Moreover, although the child had spent three days with Jimenez prior to the meeting, she had left
Jimenez’s residence after those three days and was staying with her grandmother when the
meeting took place. The child testified that she wanted to live with the grandmother, and the
grandmother had agreed that the child could live with her. Thus, the jury could have reasonably
inferred that but for Romero-Perez’s agreement with Jimenez for him to “take” the child in
exchange for payment, the child would not have moved in with Jimenez.
We next address whether Romero-Perez received a “benefit.” The evidence
summarized above shows that Jimenez made multiple cash payments to Romero-Perez, including
$900.00 in October 2015 and $700.00 in November 2015. Receipts documenting these payments
were admitted into evidence, and the child and Jimenez both testified that the payments were
made. They also testified that they made a third payment to Romero-Perez in January 2016 but
did not receive a receipt for this payment.
20
Romero-Perez does not deny that she received these payments but contends that
they were not for allowing Jimenez to have sex with the child. Instead, the payments were to
“reimburse” her for the money that she had spent to bring the child into the country. However,
“benefit” is defined broadly in the Penal Code to mean “anything reasonably regarded as
economic gain or advantage, including benefit to any other person in whose welfare the
beneficiary is interested.” Tex. Penal Code § 1.07(a)(7). The jury could have reasonably
inferred that receiving reimbursement for money that Romero-Perez had spent to obtain the child
constituted an “economic gain or advantage.” Moreover, because Romero-Perez received those
payments from Jimenez when the child was living and having sex with Jimenez, the jury could
have reasonably inferred that Romero-Perez had received those benefits from providing the child
to Jimenez so that he could have sex with her.
Finally, we address whether Romero-Perez engaged in “trafficking” as that term
is defined in the Penal Code. Traffic means “to transport, entice, recruit, harbor, provide, or
otherwise obtain another person by any means.” Id. § 20A.01(4). In this case, the relevant term
is “provide,” which is not defined in the Penal Code but has a common and ordinary meaning of
“to supply or make available.” Webster’s Ninth New Collegiate Dictionary 948 (1990); see New
Oxford American Dictionary 1406 (3rd ed. 2010); Webster’s New Universal Unabridged
Dictionary 1556 (1996).
Romero-Perez asserts that because she did not gain “legal custody” of the child
until March 2016, she “had no control” over the child and no “legal authority” to allow the child
to stay in anyone’s home or to direct or allow anyone to take possession of the child. However,
an individual does not need legal custody of a person to make that person available to others. By
all accounts, Romero-Perez was the primary caretaker of the child upon the child’s arrival in
21
Texas. The evidence in the record shows that Romero-Perez had access to the child, fed and
clothed the child, exercised authority over the child, made rules for the child and enforced those
rules, enrolled and later withdrew the child from school, and compelled the child to work when
the child was no longer attending school. The jury could have reasonably inferred from this
evidence that Romero-Perez had control of the child and, in exercising that control, made the
child available to Jimenez by having the grandmother instruct Jimenez to come to the September
29 meeting at which the child was present, by directing or allowing Jimenez to “take” the child
with him, by demanding payment from Jimenez in exchange for Romero-Perez allowing the
child to live with him and not reporting Jimenez to authorities, and by negotiating the terms of
payment that Jimenez would be able to afford. The jury could have further inferred that
Romero-Perez continued to make the child available to Jimenez by failing to report him to
authorities until April 1, 2016, several months after she had directed or allowed the child to live
with Jimenez and after she had accepted multiple payments from Jimenez.
Viewing the above evidence in the light most favorable to the verdict, we
conclude the evidence is legally sufficient to support Romero-Perez’s conviction. Because this
was the only ground alleged in Romero-Perez’s second motion for new trial, the district court
abused its discretion in granting her a new trial.9
We sustain the State’s second point of error.
9
In her brief, Romero-Perez also asserts that the district court could have granted a new
trial in the “interest of justice.” However, this ground was not alleged in Romero-Perez’s second
motion for new trial and is not a permissible ground on which the district court’s order could be
based. See supra n.4.
22
CONCLUSION
We reverse the order of the district court granting Romero-Perez a new trial, and
we remand this cause to the district court with instructions to reinstate the judgment of
conviction and the sentence in accordance with the jury’s verdict. See State v. Arizmendi, 519
S.W.3d 143, 151 (Tex. Crim. App. 2017).
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Baker and Triana
Reversed and Remanded
Filed: March 26, 2020
Do Not Publish
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