Poor v. State

• Court: Texas Court of Appeals
• Writing for the Court: W. BRUCE WILLIAMS, JUSTICE
• Citation: Poor v. State, 715 S.W.3d 15 (Tex. App. 2024)
• Docket Number: 11-22-00221-CR
• Decision Date: 03 October 2024
• Parties: Timothy Duane POOR, Appellant v. The STATE of Texas, Appellee

715 S.W.3d 15

Timothy Duane POOR, Appellant

v.The STATE of Texas, Appellee

No. 11-22-00221-CR

Court of Appeals of Texas, Eastland.

Opinion filed October 3, 2024

On Appeal from the 238th District Court, Midland County, Texas, Trial Court Cause No. CR56919, Honorable Elizabeth Leonard, Judge

Brittney Rehg, Assistant, Eric Kalenak, Assistant, Laura Nodolf, District Attorney, for Appellee.

Brittany Carroll Lacayo, Houston, for Appellant.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION ON REHEARING

W. BRUCE WILLIAMS, JUSTICE

Appellant, Timothy Duane Poor, challenges his convictions for continuous sexual abuse of a young child and compelling prostitution, both first-degree felonies. See Tex Penal Code Ann. §§ 21.02(b), (h), 43.05(a)(2), (b) (West Supp. 2023). A jury convicted Appellant of both offenses and sentenced him to thirty-five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice for the continuous-sexual-abuse conviction, and five years’ imprisonment for the compelling-prostitution conviction.

On July 18, 2024, we issued an opinion affirming Appellant’s convictions. Poor v. State, 695 S.W.3d 32, 59 (Tex. App.—Eastland 2024, no pet. h.). On August 19, 2024, Appellant’s counsel moved to extend the deadline for filing a motion for rehearing, citing the Court of Criminal Appeals’ per curiam opinion in Turley v, State released on June 26, 2024. See Turley v. State, 691 S.W.3d 612 (Tex. Crim. App. 2024). We granted an extension, and Appellant filed his motion for rehearing on September 4, 2024. We deny Appellant’s motion for rehearing, withdraw our prior opinion and judgment, and substitute it with this opinion and judgment, again affirming Appellant’s convictions.

Appellant originally raised five issues on appeal: (1) the trial court abused its discretion by denying his motion for new trial; (2) the trial court abused its discretion by failing to hold an evidentiary hearing on the issues raised in the motion for new trial; (3) his trial counsel was ineffective; (4) the trial court erred in excluding evidence of a witness’s pending criminal charge; and (5) the trial court’s charge included erroneous language.

We previously sustained Appellant’s second issue, abated this appeal, and remanded the cause to the trial court to conduct an evidentiary hearing on Appellant’s motion for new trial. In our abatement order, we ordered the trial court to determine whether the State failed to disclose evidence in violation of Article 39.14 of the Texas Code of Criminal Procedure, and whether Appellant received ineffective assistance of counsel. The trial court held a hearing on January 24, 2024, and denied Appellant’s motion for new trial. We reinstated the case after receiving the supplemental reporter’s record and the supplemental clerk’s record and addressed Appellant’s four remaining issues as set forth below. In addition, we now address the complaint raised in Appellant’s motion for rehearing.

Factual and Procedural History

Appellant was charged with compelling prostitution and continuous sexual abuse of K.F.,¹ his stepdaughter, who was twelve years old at the time of trial. L.B. married Appellant when L.B.’s daughter, K.F., was four or five years old. In 2013, Appellant and L.B. had a son, R.P. Their tumultuous relationship, which included domestic violence and involvement by the Texas Department of Family and Protective Services (“the Department” or “TDFPS”),² ended approximately eleven years later. The Department removed K.F. and R.P. in early 2019 but returned them to L.B. in late 2019 or early 2020. In 2021, L.B. and Appellant recommenced cohabitating as a family.

On April 26, 2021, L.B. found over twenty dollars hidden in K.F.’s room. When L.B. confronted K.F., K.F. eventually revealed that Appellant gave it to her for performing oral sex on him while L.B. was at work several days prior. L.B. called her mother, T.B., and took the children to T.B.’s home. T.B., L.B., and K.F. “had a talk” that evening, during which K.F. told them that, “more than once,” Appellant “had [K.F.] put her mouth over his penis,” and “put his private into her.” K.F. remembered that it started in 2019, when she was just nine years old, and that “it had been going on for a while.” According to K.F., Appellant would “bribe” her to engage in sexual acts by giving her money, toys, and other items, such as a piano.

At trial, the State presented five witnesses: L.B., T.B., K.F., the forensic interviewer who interviewed K.F., and the nurse who performed K.F.’s sexual assault examination. Appellant testified in his defense and called five additional witnesses. The jury found Appellant guilty of continuous sexual abuse of a child and compelling prostitution.

Appellant filed a motion for new trial alleging that the State had withheld material TDFPS records, and that he was denied effective assistance of counsel. In support of his motion, he attached the unsworn declaration of Sara Spector, one of his two trial attorneys.

On remand at the hearing on Appellant’s motion for new trial, Appellant called three witnesses: Lacey Holloman, the prosecutor at trial, and Appellant’s two trial attorneys, David Phillips and Sara Spector. The trial court denied Appellant’s motion.

Discussion

I. Legal Sufficiency: Compelling Prostitution

Appellant challenges, for the first time in his motion for rehearing, the sufficiency of the evidence to support his conviction for compelling prostitution, ostensibly relying on Turley, 691 S.W.3d 612.

[1, 2] We generally review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Lee v. State, 676 S.W.3d 912, 915 (Tex. App.—Eastland 2023, no pet.). Under the Jackson standard, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Garcia v. State, 667 S.W.3d 756. 761 (Tex. Crim. App. 2023). In some cases, however, an evidentiary-sufficiency issue turns on the meaning of the statute under which the defendant has been prosecuted. Liverman v. State, 470 S.W.3d 831, 835–36 (Tex. Crim. App. 2015). In that circumstance, we ask if certain conduct actually constitutes an offense under the meaning of the statute. Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App. 2017). As with all statutory interpretation questions, this is a question of law that we review de novo. Chambers v. State, 580 S.W.3d 149, 156–57 (Tex. Crim. App. 2019).

[3–5] When interpreting a statute, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In doing so, we necessarily focus on the literal text of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment. Martin v. State, 635 S.W.3d 672, 677–78 (Tex. Crim. App. 2021). “We ordinarily give effect to that plain meaning unless application of the statute’s plain language would lead to absurd results that the Legislature could not possibly have intended, or the plain language is ambiguous.” Id.

[6] Here, Appellant contends that Section 43.05 of the Penal Code, the statute that criminalizes the act of compelling prostitution, does not contemplate the prosecution of offenders who victimize children younger than fourteen years of age. While citing to the Court of Criminal Appeals’ decision in Turley issued in June 2024, Appellant’s ill-founded argument mirrors the rationale expressed by the Fourteenth Court of Appeals’ 2020 Turley decision. See Turley v. State, 597 S.W.3d 30 (Tex. App.—Houston [14th Dist.] 2020), rev’d, 691 S.W.3d 612. Despite Appellant’s attempt to reverse his conviction based on an erroneous interpretation of Section 43.05, we address this important question: Does a child victim’s inability to legally consent to sexual conduct render the child incapable of factually committing the act of prostitution under Section 43.05? The seemingly obvious answer is “no, of course not.”

As applicable to this case, a person commits the offense of compelling prostitution if he knowingly causes, by any means, “a child younger than 18 years to commit prostitution.” Penal § 43.05. A person commits the act of prostitution by knowingly offering or agreeing to receive a fee from another to engage in sexual conduct. Id. § 43.02. By its clear, unambiguous language, a “child” protected by Section 43.05 is a person younger than eighteen. Id. § 43.05. Ordinarily, this would end our analysis, but recent judicial opinions require explicit clarification regarding the protection of children younger than fourteen under this statute.

In 2010, the Texas Supreme Court held that juvenile offenders younger than fourteen could not be prosecuted for committing prostitution. In re B.W., 313 S.W.3d 818, 819, 826 (Tex. 2010). The court interpreted the legislature’s unequivocal removal of the consent defense for sexual abusers of children under fourteen as a declaration that such young children could not consent to sexual conduct as a matter of law. Id. at 830 (citing Penal § 22.011). It emphasized that “[c]hildren are the victims, not the perpetrators, of child prostitution.” Id. at 826.

Conspicuously absent from B.W. is any implication that children under fourteen cannot be victims of sexual offenses. Rather, the question in B.W. was “whether the Legislature … intended to permit prosecution of a thirteen-year-old child for prostitution[,] considering its specific pronouncement that a child under fourteen is legally incapable of consenting to sex with an adult.” Id. at 819 (emphasis added). Yet, the Fourteenth Court of Appeals, in misconstruing B.W., applied a...