Opinion
14-20-00228-CR
08-17-2021
KENNETH URLAN GREEN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1648223
Panel consists of Justices Jewell, Bourliot, and Hassan. (Justices Bourliot and Hassan concurring in the judgment only.)
MEMORANDUM OPINION
Kevin Jewell Justice
Appellant Kenneth Urlan Green appeals his conviction for compelling prostitution. See Tex. Penal Code § 43.05(a). In his first two issues, he argues that the evidence is legally and factually insufficient to support the jury's verdict. We conclude that the evidence is legally sufficient, and we decline to conduct a factual-sufficiency review. In his third issue, appellant complains that the trial court charged the jury erroneously by failing to correctly tailor the requisite culpable mental state to the relevant conduct element of the charged offense. Presuming error, we conclude nonetheless that appellant was not egregiously harmed.
We affirm.
Background
Houston Police Department Sergeant Daniel Rivera worked as an undercover officer in the department's Vice Division, which focused on, among other things, crimes involving prostitution and human trafficking. One of Sergeant Rivera's investigative methods was to identify persons who repeatedly bonded prostitutes out of jail, because "sometimes the people that bond them out will be the trafficker or pimp."
After arresting for prostitution a woman we refer to as Yolonda, Sergeant Rivera learned that Yolonda had been arrested for the same offense just six days earlier. Sergeant Rivera checked Yolonda's bond paperwork relating to the earlier offense and discovered that appellant posted the bond for Yolonda's release. Appellant's address indicated that he lived on Kassarine Pass, and Yolonda's address indicated that she lived on Bataan Road. The two addresses are both in Houston, just a few blocks apart. Sergeant Rivera began compiling a list of females that have listed the Bataan Road house as their home address. He interviewed several women who had been arrested on prostitution charges but were "bonded out" by appellant.
Included among the interviewees was a woman named Tiffany, the complainant in this case. Tiffany began using crack cocaine when she was 28 or 29 years old. A short time later, she began engaging in prostitution. Tiffany met appellant when she was 33 years old. He picked her up in his truck one day, told her he was a pimp, and introduced himself as "Pimping King Ken." Appellant took Tiffany to his house on Kassarine Pass, where they had sex. Appellant did not pay Tiffany, even though she said he "was supposed to." Appellant and Tiffany left the house in appellant's truck and picked up two other women. One of those women was Yolonda. Appellant took Tiffany and Yolonda to the house on Bataan Road, which belonged to appellant's sister. Appellant gave Yolonda a pill, which she put in Tiffany's drink. Tiffany saw this and refused to drink anything. Burglar bars covered the windows and front door, and appellant "locked" Tiffany and Yolonda in the house while he left for a few hours. When appellant returned, he and Tiffany left in his truck. When appellant stopped to buy gas, she "took off."
Tiffany saw appellant again a few weeks later. He apologized for attempting to drug her. He said "[h]e would really like to get to know [her] and [she] should just come over and see how things go." Tiffany went with appellant to his house on Kassarine Pass, where he gave her crack cocaine. Tiffany lived at the house for a few weeks, but she did not feel free to leave. According to her, appellant was "manipulating" and "controlling [her] with the crack."
Each morning, appellant would drive Tiffany, Yolonda, and another woman, Shoronda, to "the block," where they were expected to "sell sex." Tiffany's "quota" was $600 per day, which she was expected to give to appellant. After each interaction with a paying customer, appellant "would pick [Tiffany] up and . . . let [her] have a hit of crack and then he would put [her] back out." While Tiffany lived at the house, appellant was her sole purveyor of crack. She could not buy crack from anyone else because all of her money went to appellant.
Tiffany left the Kassarine Pass house after a few weeks because she did not like the particular "block" appellant chose for her to work. Tiffany returned to the area of town where she lived before meeting appellant, but she could no longer rent a motel room as she previously had done because appellant had taken her identification card. Instead, Tiffany lived in various "[c]rack houses" and continued to engage in prostitution.
A few weeks passed, and appellant tracked down Tiffany. He promised her crack, and she went back to his house with him. Appellant and Tiffany began arguing because he wanted her to smoke "Kush," but she refused. According to Tiffany, he would get mad at her when she refused to smoke Kush.
When asked about other times appellant became angry, Tiffany described an instance when appellant was mad that Shoronda had paid too much for a manicure. Tiffany, while standing outside the house on Kassarine Pass, could hear appellant yelling at Shoronda inside. When Shoronda came outside, she was crying and her leg was bleeding, requiring stitches.
At that point, Tiffany became scared of appellant. Tiffany left again, but a short time later, appellant "pulled [her] out of a crack house.... Like went in there screaming and yelling and grabbed [her] and snatched [her] out." Tiffany said that others in the house told appellant to "calm down," and "he said well, then, she needs to go." Appellant locked Tiffany in the house on Bataan Road, and for the next few weeks, appellant and Tiffany resumed the "[s]ame routine.... He was okay. Like nothing ever happened. Like everything was good."
One day, Tiffany told appellant that Yolonda had packed her things and left the house on Bataan Road. Appellant, carrying a gun, took Tiffany to Yolonda's mother's apartment. Appellant went into the apartment, then Tiffany heard "a lot of screaming and yelling," and appellant brought Yolonda back to the car. According to Tiffany, appellant asked Yolonda, "Do you think you can really leave me. You can't leave me."
Appellant, Yolonda, and Tiffany went back to the house on Bataan Road, where appellant "beat [Yolonda] up a little bit, slapped her around." Tiffany, who witnessed this, testified that she was scared: "Because I just know how many times I tried to leave and I didn't know what was going to happen if I did leave."
Nevertheless, Tiffany left the house a third time, but appellant again tracked her down. According to Tiffany, "[h]e stopped his car, slammed on his brakes and jumped out of the truck and dragged [her] to his truck . . . [l]ike by [her] arm, [her] hair, dragged [her] to the truck." Tiffany testified that "[h]e hit [her] a couple times. [Her] face was bleeding. [She has] a scar on [her] face from that incident." That was one of the last times Tiffany saw appellant before she was arrested for prostitution, and HPD began its investigation of appellant.
HPD executed search warrants on the Kassarine Pass and Bataan Road houses. At the house on Kassarine Pass, police found a piece of paper attached to the wall, which police came to understand listed hand-written "pimp rules." The "rules" included statements such as "Never disrespect your daddy," "Never come in without the money," and "Never leave your daddy." (Spelling normalized). "Daddy," according to Sergeant Rivera, meant a pimp. HPD arrested appellant, who was present at the house on Kassarine Pass during the search, and the State charged him on separate counts of continuous trafficking of persons and compelling prostitution.
At appellant's trial, in addition to Sergeant Rivera and Tiffany testifying to the above, the State called Rachel Fischer, a forensic nurse, to testify about human trafficking and "how trauma affects individuals psychologically." Fischer is "specially trained to take care of victims of sexual assault, trauma and abuse." Fischer testified that addiction can make a person vulnerable to human trafficking or prostitution, saying, "if you have an addiction that you need to be met you'll do whatever you can to be able to get that next hit." She also explained some methods pimps use to prevent prostitutes from leaving them:
They'll use various threats such as violence.... [T]here's house rules that are given to them and if you break the rules there's repercussions or if there is drug addiction they keep satisfying that addiction for the girls to keep them working, knowing that they're going to be physiologically addicted and need that.... They'll be violent to other people in their stable and sometimes be put on display because they'll say look what happened to her.
When asked "what kind of effect could witnessing [an act of violence] cause to somebody in this situation," Fischer responded:
Witnessing an act of violence is a terrifying thing. It's for anybody, if you see something violent happens it creates a response within you.... [T]hat's a type of control that pimps use. . . . Psychologically I wouldn't think that the person would ever want to leave because they probably wouldn't want that to happen to them . . . whether that's through violence or having forced withdrawal, not being fed a drug that you're accustomed to, you're afraid of that repercussion of running or even trying to get away so eventually you just let it happen because there's nothing else to do because you realize you don't have a choice in the matter.
Appellant testified in his own defense. He said he worked as a roofer and denied ever being a pimp. He asserted that he simply rented rooms in the house on Bataan Road to various women, and that any time he bonded women out of jail, it was because they called and asked him to do so as a favor. Appellant admitted knowing Tiffany and admitted having sex with her in exchange for money. Appellant said he rented a room to Tiffany at Kassarine Pass for a "week and a half at the most," but then asked her to leave because she was smoking crack. He denied ever buying crack for Tiffany and denied going by the name Pimp King Ken or Pimping King Ken.
The jury found appellant not guilty of continuous trafficking, found appellant guilty of compelling prostitution, and sentenced appellant to eight years' confinement. Appellant timely appealed.
Analysis
A. Evidentiary Sufficiency
In his first and second issues, appellant challenges the sufficiency of the evidence.
1. Legal Sufficiency
a. Applicable law and standard of review
In determining whether the evidence is legally sufficient to support the conviction, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see also Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018). We presume that the jury resolved conflicting inferences in favor of the verdict, and we defer to its determination of the evidentiary weight and witness credibility. See Braughton, 569 S.W.3d at 608; Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd).
The scope of our review includes all the evidence admitted at trial, whether or not it was properly or improperly admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We consider both direct and circumstantial evidence, as well as any reasonable inferences that may be drawn from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. See Hooper, 214 S.W.3d at 13.
A person commits the offense of compelling prostitution if he knowingly: (1) causes another by force, threat, coercion, or fraud to commit prostitution; or (2) causes by any means a child younger than 18 years to commit prostitution, regardless of whether the actor knows the age of the child at the time of the offense. Tex. Penal Code § 43.05(a). Prostitution is offering to engage, agreeing to engage, or engaging in sexual conduct for a fee. Id. § 43.02(a)(1). Here, the complainant is not a minor, so we constrain our analysis to whether the evidence is sufficient to support conviction under subsection (a)(1). Although a person can commit the offense of compelling prostitution by multiple means-"force, threat, coercion, or fraud"-both the indictment and the jury charge in this case were limited to whether appellant allegedly caused Tiffany to commit prostitution "by force." The legislature did not define the term "force" in the statute, so we give the word its ordinary meaning.
Black's Law Dictionary defines force as "[p]ower, violence, or pressure directed against a person or thing." Force, Black's Law Dictionary (11th ed. 2019). Force can be actual, consisting of "a physical act," or it can be constructive, consisting of "[t]hreats and intimidation to gain control or prevent resistance." Id. Lay dictionaries define force as "violence, compulsion, or constraint exerted upon or against a person or thing," Merriam-Webster's Collegiate Dictionary 455 (10th ed. 1996), and "violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm or death," Webster's New International Dictionary 887 (3d ed. 2002). Based on these latter definitions, the Court of Criminal Appeals concluded that "force," as used in the statute criminalizing the offense of resisting arrest, meant "violence or physical aggression, or an immediate threat thereof." Dobbs v. State, 434 S.W.3d 166, 171 (Tex. Crim. App. 2014) (interpreting Texas Penal Code section 38.03(a)).
The Penal Code provides the following general definition of 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).
b. Application
Viewed in the light most favorable to the jury's verdict, the record establishes the following facts:
• Appellant told Tiffany he was a pimp.
• Appellant attempted to drug Tiffany when he first met her.
• Tiffany did not feel free to leave the house when living at Kassarine Pass, and, more than once, appellant "locked" Tiffany in the house on Bataan Road, which had burglar bars across the windows and door that appellant kept locked.
• Appellant provided crack to Tiffany "[e]veryday" and "manipulat[ed]" and "control[ed]" Tiffany with crack.
• Appellant took Tiffany to engage in prostitution every morning and expected to receive a certain amount of money each day.
• Appellant took Tiffany's identification card from her.
• Appellant yelled at Shoronda for paying money for a manicure, and Tiffany immediately thereafter saw Shoronda with a bleeding leg.
• Appellant took Yolonda from her mother's apartment while brandishing a gun and later "beat her up a little bit."
• Tiffany was scared after seeing appellant hit Yolonda because "[she] didn't know what was going to happen if" Tiffany left appellant.
• After Tiffany attempted to leave multiple times, appellant repeatedly caused her to return to Kassarine Pass or Bataan Road by "grabb[ing]" and "snatch[ing]" Tiffany out of a crack house and "dragg[ing]" Tiffany by her arm and hair to his truck.
• Appellant hit Tiffany, causing a scar on her face.
Conceding that he used physical force against Tiffany, appellant argues that the State failed to causally connect appellant's acts of force to the fact of Tiffany's prostitution. Appellant says the evidence is insufficient to show that he "used force to cause [Tiffany] to commit prostitution." For instance, appellant acknowledges the instance when he forcibly dragged Tiffany from the street to his truck, but says he simply took Tiffany home afterwards, "making it impossible to commit prostitution." Moreover, appellant notes, Tiffany did not testify that "she even once told [appellant] that she did not want to be a prostitute or work as one."
We first consider whether the evidence supports a finding beyond a reasonable doubt that appellant "caused" Tiffany to commit prostitution. There exists evidence that appellant not only provided Tiffany the opportunity to engage in prostitution but controlled almost every aspect of Tiffany's prostitution activity over the relevant period. Tiffany lived at, and at times was constrained within, houses to which appellant controlled access; appellant took Tiffany's identification; appellant transported Tiffany and other women to and from a specific location every day for the purpose of "sell[ing] sex"; appellant expected and collected all money from Tiffany's prostitution activities; appellant regularly provided Tiffany crack cocaine after Tiffany's interactions with customers before putting her "back out"; and Tiffany testified appellant was manipulating and controlling her with crack cocaine. Based on this evidence, a reasonable juror could find that Tiffany's acts of committing prostitution during the relevant period would not have occurred but for appellant's conduct, operating either alone or concurrently with another cause. See Tex. Penal Code § 6.04(a). That Tiffany may have shown any willingness to prostitute if left to her own devices does not mean that appellant did not "cause" her to engage in prostitution on the occasions Tiffany described. See Johnson v. State, Nos. 05-13-01165-CR, 05-13-01167-CR, 05-13-01168-CR, 05-13-01169-CR, 2014 WL 7269908, at *4 (Tex. App.-Dallas Dec. 22, 2014, no pet.) (mem. op., not designated for publication).
Next, we consider whether the evidence supports a finding beyond a reasonable doubt that appellant caused Tiffany to commit prostitution by "force." We disagree with appellant that the only evidence of "force" is the single instance when he physically removed Tiffany from the street, returned her to one of his houses, and "slapp[ed] her around." Other direct and circumstantial evidence falls within the definition of "force." Appellant used against Tiffany both actual force-i.e., physically grabbing, snatching, dragging, and hitting Tiffany-and constructive force-i.e., controlling Tiffany with drugs and preventing Tiffany's resistance by tracking her down each time she left, locking her in the house, and taking her means of identification. See Force, Black's Law Dictionary (11th ed. 2019). Tiffany's testimony and reasonable inferences therefrom show that appellant acted as Tiffany's pimp, that Tiffany "lived" at either the Kassarine Pass or the Bataan Road houses, that she did not feel free to leave and was locked in the Bataan Road house, and that appellant repeatedly took Tiffany from either house to engage in prostitution daily, kept the money she made, provided her drugs, and at least twice forcibly returned her to either house after she attempted to leave. A juror could reasonably infer that appellant "[took] her home" after forcibly removing her from the street to ensure that Tiffany would be there to engage in prostitution the next morning. The evidence supports a rational finding that appellant knowingly used force to keep Tiffany at the houses on Kassarine Pass and Bataan Road, so that he could take Tiffany daily to engage in prostitution.
The evidence showed further that Shoronda and Yolonda also engaged in prostitution at appellant's direction, and appellant, in Tiffany's presence, used physical force against Shoronda when she angered him and against Yolonda when she attempted to move out of the house on Bataan Road. Tiffany came to fear appellant after witnessing him cause physical injury to one prostitute and threaten another with a gun after she also attempted to leave. Appellant told Tiffany that he "owned" her and threatened to hunt her down if she tried to leave. Thus, there exists some evidence from which a reasonable juror could find beyond a reasonable doubt that Tiffany stayed at either house for an extended period, and engaged in prostitution, by appellant's knowing use of violence or aggression or an immediate threat thereof. See Dobbs, 434 S.W.3d at 171; see also Davis v. State, 635 S.W.2d 737, 738 (Tex. Crim. App. 1982) (evidence sufficient to support conviction for compelling prostitution when defendant would hit, threaten to kill, or burn complainant after she refused his demands that she "prostitute for him").
Our conclusion is bolstered by the testimony from Fischer, the forensic nurse who spoke about the psychological effect trauma and prostitution had on an individual. Fischer testified that a person who witnesses violence against someone similarly situated or who has a drug addiction that is enabled by her pimp becomes afraid of running away: "eventually you just let it happen because there's nothing else to do because you realize you don't have a choice in the matter." In this vein, Tiffany, when asked why she would return with appellant when he would track her down on the street, testified, "Fear.... Because I knew him. He used to tell me that he owned me."
In Dula v. State, 679 S.W.2d 601, 604 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd), the court of appeals rejected a legal sufficiency challenge to a conviction for compelling prostitution. In that case, the complainant testified that appellant became "evil" and "forceful" and told her that he "would take whatever means (he) found necessary to make sure that she participated in (his) business." Id. She further stated that the defendant would "kidnap her" and "beat her to a pulp" if she did not comply to his demands. Id. The complainant also testified that she had observed the appellant hit another prostitute with his fist, drawing blood, and she was afraid that he would do the same to her. Id. The issue in Dula was whether the defendant compelled prostitution by "force, threats, or fraud"; whereas, here, the question is whether appellant compelled prostitution by "force." But in today's case we are presented with evidence not only comparable to that in Dula, but also proof indicative of a greater degree of violence or aggression or an immediate threat thereof, including physical constraint over a period of time during which appellant essentially controlled Tiffany's daily prostitution activity.
In light of the above facts, a rational juror could have found beyond a reasonable doubt that appellant caused Tiffany to commit prostitution and did so by force.
We overrule appellant's first issue.
2. Factual Sufficiency
Appellant asks that we also review the evidence for factual sufficiency. Appellant acknowledges the Court of Criminal Appeals' opinion in Brooks v. State, in which a plurality of the court held that "the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Appellant argues, however, that the Texas Constitution and the Code of Criminal Procedure compels courts to perform a factual sufficiency review when requested. See Tex. Const. art. V, § 6(a) ("[T]he decision of [the Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error."); Tex. Code Crim Proc art 4425 (courts of appeals "may reverse the judgment in a criminal action upon the facts"); see also, eg, Malbrough v State, 612 S.W.3d 537, 570 (Tex App-Houston [1st Dist] 2020, pet ref'd) (Countiss, J, concurring) (asking Court of Criminal Appeals to reconsider Brooks).
A plurality opinion, like Brooks, is not binding precedent. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (acknowledging that court was not bound to follow plurality opinion); see also Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.-Houston [14th Dist.] July 25, 2002, pet. ref'd). Since Brooks was decided, however, the Court of Criminal Appeals has rejected calls to reinstate factual sufficiency review. E.g., Howard v. State, 333 S.W.3d 137, 138 n.2 (Tex. Crim. App. 2011) ("[W]e have abolished factual-sufficiency review."); Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010) (relying on Brooks to overrule defendant's request for factual sufficiency review). And our court has followed Brooks since its issuance. See Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.-Houston [14th Dist.] 2010, no pet.).
Accordingly, we reject appellant's request to review the evidence for factual sufficiency, and we overrule his second issue. See Houston v. State, No. 14-18-00726-CR, 2020 WL 1883421, at *2 (Tex. App.-Houston [14th Dist.] Apr. 16, 2020, pet. ref'd) (mem. op., not designated for publication) (declining appellant's request for factual-sufficiency review).
B. Jury Charge
In his third and final issue, appellant argues that the trial court submitted to the jury an erroneous definition of the applicable mental state that was not tailored to the appropriate conduct element of the charged offense.
1. Standard of review and applicable law
In a criminal case, we review complaints of jury charge error in two steps. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). Second, we review the record to determine whether sufficient harm was caused by the error to require reversal of the conviction. Id. The degree of harm necessary for reversal depends on whether the appellant preserved error by objecting to the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Appellant did not object to the charge in this case. When charge error is not preserved, as here, reversal is not required unless the resulting harm is egregious. Id.; see also Tex. Code Crim. Proc. art. 36.19.
Charge error is egregiously harmful when it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). That is, the error must have been so harmful that the defendant was effectively denied a fair and impartial trial. Almanza, 686 S.W.2d at 172. Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Under Almanza, the record must show that the charge error caused the defendant actual, rather than merely theoretical, harm. Ngo, 175 S.W.3d at 750.
In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense. Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015). There are three "conduct elements" that can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. See Robinson v. State, 466 S.W.3d 166, 170 (Tex. Crim. App. 2015) (explaining "three different categories of offenses based on the offense-defining statute's gravamen, or focus: 'result of conduct,' 'nature of conduct,' or 'circumstances of conduct'"). An offense may contain any one or more of these "conduct elements," which alone or in combination form the overall behavior that the legislature has intended to criminalize, and it is those essential "conduct elements" to which a culpable mental state must apply. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see also Tex. Penal Code § 6.03 (defining culpable mental states).
We use the gravamen of the offense to decide which conduct elements should be included in the charge regarding the defendant's culpable mental state. Price, 457 S.W.3d at 441. If the gravamen of an offense is the result of conduct, the jury charge on culpable mental state should be tailored to the result of conduct; if instead the gravamen of an offense is the nature of the defendant's conduct or the circumstances surrounding the conduct, then the charge should be tailored accordingly. See, e.g., Alvarado v. State, 704 S.W.2d 36, 38-40 (Tex. Crim. App. 1985) (holding that the trial court erred in failing to tailor the culpable mental states to the result of conduct for the result-oriented offense of injury to a child). If the offense has multiple gravamina, and one gravamen is the result of conduct and the other is the nature of conduct, the jury charge on culpable mental state must be tailored to both the result of conduct and the nature of conduct. E.g., Hughes v. State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994) (recognizing "that in a capital murder case involving more than one conduct element it would not be error for the definitions to include more than the result of conduct element").
2. Presuming error, appellant was not egregiously harmed.
The jury charge in this case defined the mental state "knowingly" in regard to all three conduct elements: the nature of appellant's conduct, the result of appellant's conduct, and the circumstances surrounding his conduct. The charge provided:
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
The State and appellant appear to agree that compelling prostitution of an adult is a combination nature-of-conduct and result-of-conduct offense. Appellant argues that, at the very least, the trial court erred by defining "knowingly" in connection with the circumstances surrounding appellant's conduct.
We presume without deciding that the trial court erred by applying the culpable mental state of "knowingly" to the "circumstances of conduct" element in the charge. Appellant did not object to this aspect of the jury charge, however, so we next consider whether the trial court's presumed error caused appellant egregious harm. In examining the record for egregious harm, we consider the entire jury charge, the state of the evidence, the closing arguments of the parties, and any other relevant information in the record. Niles v. State, 595 S.W.3d 709, 711 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
Entire charge.
The only other relevant portion of the jury charge is the application paragraph, which provided:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 13th day of November, 2015, in Harris County, Texas, the defendant, Kenneth Urlan Green, did then and there unlawfully, and knowingly by force cause T.T. to commit prostitution, then you will find the defendant guilty of compelling prostitution, as charged in the indictment. (Emphasis added.)
This paragraph directly links the requisite culpable mental state- knowingly-only to appellant's conduct-use of "force." Referring back to the definitions of the culpable mental states and applying them to the facts, it would be fairly apparent to a rational jury that the use of force had to be done knowingly. Thus, with regard to the entirety of the jury charge, "the facts, as applied to the law, in the application paragraphs pointed the jury to the appropriate portion of the definitions." Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995). Accordingly, this factor does not weigh in favor of egregious harm. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) ("Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.").
State of the evidence.
We have detailed the evidence supporting the jury's finding of guilt, above. Appellant testified on his own behalf, directly presenting his defensive theory to the jury. His defense was to deny being a pimp and deny interacting with Tiffany in any way, except for the two weeks when he said she rented a room at the Kassarine Pass house. Appellant did not argue or present evidence that his actions, and specifically his use of force, were not done knowingly. Overall, this factor does not weigh in favor of egregious harm. See Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.-Corpus Christi 1989, no pet.) ("Where no defense is presented which would directly affect an assessment of mental culpability, there is no harm in submitting erroneous definitions of 'intentionally' and 'knowingly.'").
Closing arguments and other information.
The prosecutor focused on what constitutes "force" during closing arguments. Similarly, appellant's counsel told the jury that "[appellant] never forced Tiffany [] to do anything." Neither defense counsel nor the prosecution discussed appellant's culpable mental state. We see no 18 other information in the record relevant to the jury charge's definition of the requisite culpable mental state. These last two factors do not weigh in favor of egregious harm.
In sum, after considering the entirety of the jury charge, the arguments of counsel, and the state of the evidence, we conclude that the above factors, considered together, do not weigh in favor of a conclusion that appellant was denied a fair and impartial trial. As a result, we conclude that appellant did not suffer egregious harm, and we overrule his jury charge complaint.
Conclusion
Having overruled appellant's three issues, we affirm the trial court's judgment.