Opinion
05-21-00912-CR
04-28-2023
BARBARA JEAN BARRETT, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(B)
On Appeal from the 354th District Court Hunt County, Texas Trial Court Cause No. 32471CR
Before Justices Molberg, Partida-Kipness, and CarlyleMEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
A jury found Barbara Jean Barrett guilty of continuously trafficking persons, see TEX. PEN. CODE § 20A.03, and assessed punishment at 99 years' confinement. Ms. Barrett appeals, and we affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
In 2012, Ms. Barrett withdrew her five children from school, stating that she intended to homeschool them. Although Ms. Barrett initially provided the children with a computer-based learning service, she stopped paying for that service after two months. Following that, the children received no formal schooling or education beyond the elementary level.
Around the same time, Ms. Barrett and her husband began operating a puppy mill out of their home, for which three of the children provided most of the labor.Among other things, the Barretts required the children to care for more than a hundred dogs-feeding them, grooming them, administering their medication, cleaning their kennels, and assisting in birthing their puppies. An SPCA animalcruelty investigator testified that a similar-sized operation, if properly staffed and equipped, would use six full-time employees to perform the tasks the Barretts required their three children to perform without proper equipment and in unsanitary conditions.
One of the children had special needs, and Ms. Barrett did not trust him around the animals. And although the youngest child sometimes helped take care of the dogs, the three other children bore the brunt of the workload.
If the children did not satisfactorily perform their assigned tasks, the Barretts would hit them with sticks, extension cords, belts, metal utensils, and other objects. The oldest child testified it seemed like the beatings occurred every other day, and he would leave the room if the other children were in trouble "because of how violent it would get." Another child testified that Mr. Barrett would hold her down while Ms. Barrett hit her, and the injuries from the Barretts' beatings would sometimes last weeks.
In addition to the physical abuse, the Barretts sometimes punished noncomplying children by withholding food and forcing them to sleep on a concrete slab smeared with dog feces and urine. The Barretts also isolated the children and prevented them from socializing with other kids. One child testified they had no friends, could not participate in extracurricular activities, and could not leave the house without parental supervision. The children's only real contact with the outside world came through online video games.
Authorities arrested Ms. Barrett in 2018, after an investigation triggered by one child running away from home and reporting the abuse. The grand jury indicted Ms. Barrett for continuously trafficking persons under penal code section 20A.03, charging that Ms. Barrett, two or more times between February 11, 2012, and September 23, 2017, "did knowingly traffic" the children or "receive a benefit from participating in a venture that involved trafficking" the children, "and through force, fraud, or coercion" caused the children "to engage in forced labor or services."
The trial court denied Ms. Barrett's two pretrial applications for a writ of habeas corpus, and Ms. Barrett appealed from the second denial. In that appeal, she argued the statutory provisions underlying the charges are facially unconstitutional because they are overbroad and vague. We rejected her arguments, holding: (1) the trafficking statute is not facially overbroad because it has valid and constitutional applications; (2) the "substantial overbreadth" standard for certain First Amendment challenges does not apply because the statute regulates conduct rather than protected speech; (3) even under a "substantial overbreadth" standard, the statute is not facially unconstitutional because it does not have a substantial number of unconstitutional applications in relation to its plainly legitimate sweep; (4) the statute is not unconstitutionally vague because it is sufficiently clear both to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and to establish determinate guidelines for law enforcement. Ex parte Barrett, 608 S.W.3d 80, 89-97 (Tex. App.-Dallas 2020, pet. ref'd). Ms. Barrett proceeded to trial, and she now appeals from her resulting conviction.
OUR PRIOR OPINION FORECLOSES MS. BARRETT'S CONSTITUTIONAL ARGUMENTS
In her first two issues, Ms. Barrett contends: (1) penal code section 20A.02 is facially unconstitutional because it violates parents' "fundamental right to raise their children as they see fit" guaranteed by the Fourteenth Amendment's Due Process Clause; and (2) penal code subsections 20A.02(a)(1) &(2) are facially unconstitutional because they are too vague to "give a person of ordinary intelligence the ability to discern what the statute prohibits, and because the statute impermissibly casts too broad of a net, leaving it to law enforcement to arbitrarily enforce." We expressly rejected these contentions in our prior opinion. See Ex parte Barrett, 608 S.W.3d at 94 (rejecting Ms. Barrett's argument that "Section 20A.02 is facially unconstitutional because it criminalizes . . . conduct recognized as a fundamental liberty interest by the Supreme Court and protected by the Due Process Clause, namely the right of parents to raise and supervise their children"); id. at 97 ("[W]e conclude a person of ordinary intelligence could readily understand the concepts of 'trafficking' and 'forced labor or services' and understand that they may assign their children to perform household chores or to work reasonable hours in the family business without being charged with trafficking the children for forced labor or services. We are similarly unpersuaded that the statute fails to give guidance to law enforcement authorities.").
Ms. Barrett's brief frames her first issue as raising a facial challenge to the statute. She states that she preserved the issue by asserting a facial challenge in the trial court, and she asks us to apply the standard of review applicable to facial challenges. In addition, Ms. Barrett's counsel stated at oral argument that her first issue raises only a facial challenge. Nevertheless, in a post-submission brief, Ms. Barrett asserts that her first issue instead raises an "as applied" challenge. Even if we liberally construe Ms. Barrett's first issue as raising both a facial and an "as applied" challenge, it does not appear Ms. Barrett preserved any "as applied" challenge by appropriately raising it in the trial court. See TEX. R. APP. P. 33.1; see also Flores v. State, 245 S.W.3d 432, 437 n.14 (Tex. Crim. App. 2008) ("[A]ppellant must preserve an 'as applied' constitutional challenge by raising it at trial."). We therefore consider Ms. Barrett's first issue as raising only a facial challenge.
Under the "law of the case" doctrine, "an appellate court's resolution of questions of law in a previous appeal [is] binding in subsequent appeals concerning the same issue." State v. Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014). Ms. Barrett argues that our previous opinion should not control here because her arguments in the first appeal focused primarily on the extent to which the statutes violated the First Amendment. But Ms. Barrett did not limit either the issues she raised or the arguments she asserted in the first appeal to the statute's constitutionality under the First Amendment, and we did not so limit our analysis. We are bound by our prior holding that the trafficking statute is not facially unconstitutional. See id.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING EXPERT TESTIMONY ON HUMAN TRAFFICKING
Ms. Barrett next contends the trial court abused its discretion by allowing Dr. Vanessa Bouche to testify as an expert for the State. Dr. Bouche is a scholar whose research focuses on human trafficking. She studies trafficking dynamics, including how traffickers control their victims. And she has studied trafficking involving familial relationships, including within the context of domestic servitude. Dr. Bouche has interviewed approximately four hundred trafficking victims, as well as multiple convicted traffickers. But she acknowledged during voir dire examination that she has not interviewed any child victims trafficked by their parents for purposes of forced labor-as opposed to sex trafficking-and is not aware of any legal cases involving parents accused of trafficking their own children for forced labor. Nevertheless, she testified that the trafficking dynamics on which her testimony focused applied generally to all forms of trafficking.
Ms. Barrett objected in the trial court, and now argues on appeal, that Dr. Bouche could not offer expert testimony because she lacked knowledge or experience concerning trafficking under this precise fact pattern. We review a trial court's decision to allow expert testimony for abuse of discretion, Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007), and will reverse only if the "trial court's ruling was so clearly wrong as to lie outside the zone" of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).
To the extent Ms. Barrett also contends the trial court abused its discretion by allowing Dr. Bouche to provide improper legal conclusions, she did not timely object on that basis in the trial court and thus did not preserve the issue for our review. See TEX. R. APP. P. 33.1(a). Likewise, Ms. Barrett failed to preserve any issue concerning whether the trial court should have excluded Dr. Bouche's testimony under evidentiary rule 403 because its potential for unfair prejudice or misleading the jury outweighed its probative value. See id.
Under evidentiary rule 702, expert testimony is admissible if: (1) the witness qualifies as an expert based on skill, experience, training, or education; (2) the testimony's subject matter is appropriate for expert testimony; and (3) admitting the testimony will assist the factfinder in deciding the case. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). "Because the spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses appropriate qualifications as an expert on a specific topic in a particular case." Id.
Ms. Barrett conceded at trial that Dr. Bouche is "clearly an expert in some segments of human trafficking." And the State offered Dr. Bouche as an expert to educate the jury on the dynamics of human trafficking in general, particularly the extent to which certain actions and behaviors are consistent with those of trafficking victims and perpetrators. The mere fact that Dr. Bouche had never encountered this precise fact pattern in her research does not render her considerable expertise in trafficking dynamics irrelevant to the issues at trial. And thus the decision to allow Dr. Bouche to testify as an expert was not "so clearly wrong as to lie outside the zone" of reasonable disagreement. Taylor v. State, 268 S.W.3d at 579.
THE TRIAL COURT DID NOT REVERSIBLY ERR BY CHARGING THE JURY ON THE DATE RANGE APPLICABLE TO MS. BARRETT'S CONDUCT
Ms. Barrett next contends the trial court reversibly erred by incorrectly instructing the jury on the relevant date range applicable to her conduct. The jury charge's abstract portion states:
Under the law, the term "on or about" means any date prior to the filing of the Indictment.
You are instructed that the prosecution is not bound by the exact date alleged in the Indictment, but may prove commission of the offense, if any, on any date on or after February 11, 2012 through, on or about, September 23, 2017.
The application paragraph then asks the jury to determine whether "on or about . . . the 11th day of February, 2012 to the 23rd day of September, 2017. . . the defendant, Barbara Barrett, did then and there" commit the offense.
Ms. Barrett contends the jury could have disregarded the specific instruction that the State must prove the offense occurred "on or after February 11, 2012" and instead based her conviction on the date range referenced in the application paragraph as beginning "on or about February 11, 2012," which according to the separate instruction, could include any conduct occurring "prior to the filing of the Indictment." From that premise, Ms. Barrett argues that the charge impermissibly allowed the jury to convict her based on conduct occurring before penal code § 20A.03 took effect in September 2011.
Because Ms. Barrett did not object to the charge, however, we can reverse only if the alleged error resulted in "egregious harm." Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013). This standard is difficult to meet and requires a showing that the error deprived Ms. Barrett of a fair and impartial trial. Id. The record must reveal "actual rather than theoretical harm," with the error affecting "the very basis of the case," depriving Ms. Barrett of a valuable right, or vitally affecting a defensive theory. Id. In determining whether this standard is met, we look at: (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) counsel's arguments at trial; and (4) any other relevant information revealed by the trial record as a whole. Id.
Assuming without deciding that the trial court erred by stating "on or about February 11, 2012" in the application paragraph, we conclude Ms. Barrett did not suffer egregious harm. Considering the charge as a whole, the trial court's specific instruction that the State had to prove the offense occurred "on or after February 11, 2012" helped ameliorate any error in using "on or about" in the application paragraph. See French v. State, 563 S.W.3d 228, 236 (Tex. Crim. App. 2018) (noting that in considering the charge as a whole, we "ask whether anything in the balance of the jury charge either exacerbated or ameliorated th[e] error"). The State argued at closing that Ms. Barrett "continuously trafficked her children from 2012." And Ms. Barrett's counsel instructed the jury at closing that it could not consider any conduct occurring before 2012. Nothing in the record suggests the jury convicted Ms. Barrett based on her pre-2012 conduct. At most, Ms. Barrett points to the theoretical possibility that the application paragraph's wording was harmful, but theoretical harm alone does not satisfy the "egregious harm" standard. See id.
We need not determine whether the charge was erroneous because our harm analysis is dispositive. See Wooten v. State, 400 S.W.3d 601, 607 (Tex. Crim. App. 2013) ("Finding our harm analysis thus dispositive, we need not address whether the trial court did, in fact, err not to include the instruction.").
THE TRIAL COURT DID NOT REVERSIBLY ERR BY CHARGING THE JURY ON THE ELEMENTS OF THE PREDICATE OFFENSE
Ms. Barrett next argues the trial court erred by instructing the jury to convict based on conduct that does not satisfy the charged offense's statutory elements. As relevant to this issue, the jury charge's abstract portion instructed:
Our law provides that a person commits an offense of continuous trafficking of persons if during a period that is 30 or more days in duration, the person commits two or more acts of trafficking of persons, regardless of whether the acts of trafficking are committed against one or more victims.
Our law provides that a person commits the offense of trafficking of persons if the person intentionally or knowingly traffics a child with the intent that the trafficked child engage in forced labor or services; or receives a benefit from participating in a venture that involves trafficking a child with the intent that the trafficked child engage in forced labor or services, including by receiving labor or services the person knows are forced labor or services....
"Forced labor or services" means labor or services, other than labor or services that constitute sexual conduct, that are performed or provided by another person and obtained through an actor's use of force, fraud, or coercion.
"Traffic" means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means.
Ms. Barrett concedes the above portion of the charge correctly instructed the jury on the law. Nevertheless, she challenges the charge's application paragraph, which states:
Now, if you find from the evidence beyond a reasonable doubt that on or about . . . the 11th day of February, 2012 to the 23rd day of September, 2017 in Hunt County, Texas, the defendant, Barbara Barrett, did then and there unlawfully, during a period of time of thirty or more days in duration, commit at least two acts of trafficking of persons against a child, by trafficking [the children], children younger than 18 years of age and through force, fraud, or coercion caused them to engage in forced labor or services or by knowingly receiving a benefit from participating in a venture that involved trafficking [the children] and through force, fraud, or coercion caused them to engage in forced labor or services, then you will find the defendant guilty of continuous trafficking of persons, as charged in the indictment.According to Ms. Barrett, this paragraph authorized conviction based on conduct not proscribed by the statute because it omits the statutory requirement that she either trafficked the children with the intent that they engage in forced labor or services or participated in a venture that involved trafficking with such intent. See TEX. PENAL CODE § 20A.02(5)-(6).
Because it is the instrument by which the jury convicts, the court's charge must accurately state the law and set out all essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). To determine whether the charge fails in this regard, we must examine it as a whole rather than as "a series of isolated and unrelated statements." Id.
As Ms. Barrett concedes, the charge's abstract portion correctly instructs the jury on all elements of the predicate trafficking-of-a-person offense, including the intent requirement. The application paragraph then asks the jury to determine whether Ms. Barrett committed that offense on two or more occasions during the relevant time period. Thus, viewing it as a whole, the charge authorized the jury to convict Ms. Barrett only if it found she committed the predicate offenses with the requisite intent. See id. at 339-40 (charge not defective for application paragraph's failure to allege culpable mental state where the charge's abstract portion properly instructed the jury on the required mental state).
To the extent the application paragraph nevertheless erroneously failed to track the predicate offense's elements, Ms. Barrett did not suffer egregious harm. See Nava, 415 S.W.3d at 298. As noted, the charge as a whole correctly instructed the jury on the requisite intent, thus ameliorating any error in that regard. See French, 563 S.W.3d at 236. Neither party emphasized the alleged error in its arguments, and nothing in the record suggests the jury was confused about the predicate offense's elements. To the extent the application paragraph erroneously suggested the State had the burden of proving Ms. Barrett caused the children to engage in forced labor, that heightened burden would only serve to benefit Ms. Barrett.
Having overruled each of Ms. Barrett's issues, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.