Opinion
NO. PD-0150-21
10-06-2021
Richard Dale GRIFFIN, Appellant v. The STATE of Texas
Keith S. Hampton, Austin, for Appellant.
Keith S. Hampton, Austin, for Appellant.
Petition for discretionary review refused.
Keller, P.J., filed a dissenting opinion in which Walker, J., joined.
In Ritz v. State , the defendant was convicted of continuous trafficking of persons for transporting a fourteen-year-old to his home multiple times to have sex with her. Now Appellant has been convicted of the same offense because he drove the high-school aged victim to his home, his karate studio, and his travel trailer to have sex with her. The court of appeals noted that defendants in at least three other jurisdictions have been prosecuted for trafficking under similar facts. Given the court of appeals's broad construction of the statute, we should expect more cases like this. This Court declined to address the proper construction of the statute in Ritz , but it is high time to face the issue. Considering that the issue before us involves the scope of a criminal offense, and it appears that the statute is being employed beyond its proper scope, we should grant review now.
See 533 S.W.3d 302, 309 (Tex. Crim. App. 2017) (Keller, P.J., dissenting).
See Griffin v. State , No. 03-19-00429-CR, 2020 WL 7640149, *1 (Tex. App.—Austin December 23, 2020).
Id. at *5, n.1.
533 S.W.3d at 303 (dismissing petition as improvidently granted).
Relying upon its earlier decision in Ritz , the court of appeals held that the language of the trafficking statute was broad enough to convict a defendant who has sex with a child if his only other relevant act was to drive the victim to the place where the sex occurred. The court of appeals acknowledged that its construction of the trafficking statute might be "so broad that nearly every adult who has sex with a minor may now be prosecuted as a human trafficker," but concluded that the language of the statute compelled such a result.
Ritz v. State , 481 S.W.3d 383 (Tex. App.—Austin 2015, pet. dism'd).
Griffin , 2020 WL 7640149, at *3-4.
Id. *3 (quoting Ritz , 481 S.W.3d at 386 ).
The court of appeals is half right. As construed by the court of appeals, the trafficking and continuous-trafficking statutes have the potential to supplant most Penal Code sex offenses against children and to impose greater punishment ranges. To see how this is so, we must first look at the statutory definition of "traffic." "Traffic" means to "transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means." When the constitutionality of a statute is at issue, it is appropriate to focus solely on the portions of the statute that are pled in the charging instrument, but when the meaning of the statute is at issue, all of its provisions—even those that were not pled—should be considered. So we should consider not only the "transport" definition of "traffic" but all of the definitions. If "transport" is to be accorded its broadest possible meaning, then so should the other terms in the definition of "traffic." And when that is done, it is hard to see how any sexual offense against a child escapes the definition. Convincing, or even just motivating, the child to have sex would seem to qualify as "enticing" the child. Exercising any sort of control over the child would seem to qualify as "obtaining" the child "by any means."
Tex. Penal Code § 20A.01.
See e.g. Ex parte Perry , 483 S.W.3d 884, 904 (Tex. Crim. App. 2016) (focusing only on the definition of coercion that was pled in the charging instrument as the basis for the constitutional challenge).
See e.g. id. at 905 (considering unpled definitions in ascertaining meaning of pled definition).
Such an expansive reading is probably justified for the purpose of the trafficking statute. We would not want to impede legitimate trafficking prosecutions by artificially narrowing what it means to "traffic."
The problem is that the court of appeals also reads subsection (a)(7) of the trafficking statute expansively to include situations in which the defendant is the only perpetrator. In doing so, the court of appeals has essentially swept within the ambit of the trafficking offense any conduct that would otherwise constitute the offense of indecency with a child, sexual assault of a child, or aggravated sexual assault of a child. Second- or third-degree offenses for indecency with a child, and second-degree offenses of sexual assault, become first-degree offenses of trafficking. And the offense of continuous trafficking would subsume the offense of continuous sexual abuse of a child. Those offenses have the same punishment range—25 to 99 years or life—but continuous trafficking applies to any child or children while continuous sexual abuse of a child applies only to a child or children under age 14. So the State really does not need to prove that the child is under age 14 to get the punishment range for the offense of continuous sexual abuse of a child. It just needs to frame the charge as continuous trafficking—exactly what the State has done here.
Griffin , 2020 WL 7640149, at *4-5.
See Tex. Penal Code § 20A.02(a)(7)(B)-(D).
See id. § 21.11(d).
See id. § 22.011(a)(2), (f).
See id. § 20A.02(b)(1).
See id. §§ 20A.02(a)(7)(A)-(D), 20A.03(a). See also id. § 21.02(b).
Compare §§ 20A.01(1) ("child" means under age 18), 20A.02(a)(7) (victim is a "child"), 20A.03(a) (two or more times, more than 30 days, victim or victims in 20A.02), (e) (25 to 99 or life) with § 21.02(b)(1) (two or more times, more than 30 days, victim or victims in subsection (2)), (2) (under age 14), (h) (25 to 99 or life).
Surely the legislature did not really mean to render traditional Penal Code offenses involving sex crimes against children redundant by subsuming them into the offense of trafficking. Otherwise, there would be no need for those offenses to have their own punishment ranges. But the combined effect of expansively construing the definition of traffic and expansively construing the (a)(7) trafficking offense is to do just that. The only possible wiggle room in the "traffic" definition might be to construe "obtain ... by any means" more narrowly than the control exerted over the child during sexual abuse. But the only result would be that a defendant could escape a trafficking charge if he forces the child to have sex instead of simply inducing the child to do so. That sort of disparate treatment would be odd, is inconsistent with the fact that consent is no defense to sexual offenses against children, and, consent issues aside, causes a morally backward result.
See id. §§ 21.11, passim , 22.011(a)(2).
See Ritz , 533 S.W.3d at 314 (Keller, P.J., dissenting).
There is a way out of this. In my dissent in Ritz , I concluded that, taken together, the (a)(7) and (a)(8) trafficking provisions contemplate a minimum of two perpetrators in any trafficking offense—a person who traffics the child (subsection (a)(7)) and another person who commits the sexual offense against the child (subsection (a)(8)). This construction does not mean that someone could never violate both subsections. A person who sexually abuses a child could be a trafficker if there is another trafficker or if someone else also sexually abuses the child. What this construction does mean is that someone cannot be the sole perpetrator and be a trafficker. I think there is sufficient ambiguity in the statutory language to allow for this construction, but if not, the court of appeals's construction leads to absurd results that the legislature could not possibly have intended. Either way, we could then look at extratextual factors, and the legislative history supports the idea that a "trade" of some sort must take place for there to be trafficking, and for there to be a "trade," there must be more than one criminal actor. And such a construction would avoid rendering redundant a number of statutes involving sex offenses against children.
Id. at 312-13.
See Boykin v. State , 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
See Ritz , 533 S.W.3d at 314.
See Lothrop v. State , 372 S.W.3d 187, 190-91 & n.8 (Tex. Crim. App. 2012) (appellate court seeks to avoid rendering a statutory provision redundant or meaningless).
Of course, saying that Appellant did not commit trafficking does not give him an outright acquittal. We can reform the offense to the appropriate lesser-included offense and remand for a new punishment hearing.
See Thornton v. State , 425 S.W.3d 289, 300-01 (Tex. Crim. App. 2014).
I would grant review to address the proper construction of the trafficking and continuous trafficking statutes. Because the Court does not, I respectfully dissent.
Newell, J., filed a concurring opinion.
This Court is again being asked to interpret the human trafficking statute. Appellant rehashes the same arguments that were clearly rejected in Ritz v. State . Nothing has changed since Ritz . The statute hasn't. Neither have the arguments. Contrary to Appellant's claims, there is no need to "settle" the construction of the statute. The courts of appeals that have construed the statute have done so according to the text of the statute and consistent with the holding in Ritz . And the United States Supreme Court recently denied review on a case in which the defendant raised constitutional challenges to the human trafficking statute based upon the same arguments rejected by the court of appeals in this case. There is no uncertainty; there's just dissatisfaction with the statute's terms.
See Tex. Penal Code § 20A.02.
See Ritz v. State , 481 S.W.3d 383 (Tex. App.—Austin 2015, pet. dism'd) ; see also Ritz v. State , 533 S.W.3d 302 (Tex. Crim. App. 2017).
See Ex parte Barrett , 608 S.W.3d 80, 95–96, 98 (Tex. App.—Dallas 2020, pet. filed) (construing 20A.02(a) in the face of facial overbreadth and vagueness challenges); Benavides v. State , No. 04-18-00273-CR, 2019 WL 5580260, *5–6 (Tex. App.—San Antonio Oct. 30, 2019, pet. ref'd) (mem. op. not designated for publication), cert. denied , ––– U.S. ––––, 141 S.Ct. 372, 208 L.Ed.2d 95 (2020) (noting that "[b]ased on the plain text of the statute, a person of ordinary intelligence is placed on notice that driving another person with the intent to force the other person to engage in prostitution more than once during a period of 30 days constitutes the offense of continuous trafficking").
See Benavides , 2019 WL 5580260.
When the legislature meets without changing a statute, after that particular statute has been judicially construed, we presume the legislature intended the same construction should continue to be applied to that statute. The human trafficking statute was judicially construed and decided by the Austin court of appeals in Ritz v. State , a published opinion issued on November 24, 2015. Our Court initially granted discretionary review, but later dismissed the petition as improvidently granted on June 14, 2017. Since then, the Texas Legislature has met on multiple occasions (July 18, 2017, January 8, 2019, and January 12, 2021). It did not change the statute.
Smith v. State , 5 S.W.3d 673, 681 (Tex. Crim. App. 1999) (Keller, P.J., dissenting) (citing State v. Hardy , 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) (quoting Marin v. State , 891 S.W.2d 267, 271–72 (Tex. Crim. App. 1994) )).
Ritz , 481 S.W.3d at 384–86.
Ritz , 533 S.W.3d at 303.
Senate Journal, Eighty-fifth Legislature—First called Session.
House Journal, Eighty-sixth Legislature, Regular Session.
House Journal, Eighty-Seventh Legislature, Regular Session.
In Ritz , the court of appeals rejected the same arguments presented in this petition for review. Ritz dealt with a defendant who picked up a 14-year-old victim many times and drove her to his house for sex. The defendant argued that the human trafficking statute could not apply to him because there was no evidence of "the illegal trade of human beings for profit or for sex trafficking." The defendant argued that without such a showing a defendant would be subject to criminal liability for a greater offense of trafficking (instead of a lesser-included offense) anytime an adult engaged in sex with a minor and transported the minor to do so. The court of appeals rejected these arguments and recognized that the terms of the human trafficking statute are broad, but do not lead to absurd results. In addition, the two courts of appeals that have had the occasion to construe the statute since Ritz was decided have construed the statute consistent with Ritz .
See Ritz , 481 S.W.3d at 384–86.
Id. at 384.
Id. at 385.
Id.
Id. at 386.
See Barrett , 608 S.W.3d at 95–96, 98 ; Benavides , 2019 WL 5580260, at *5.
Here, Appellant was indicted with one count of Continuous Trafficking of a Person and sixty-three counts of possession of child pornography. A jury returned a guilty verdict on all counts. On appeal, Appellant made the same arguments that the defendant in Ritz made. But the text of the human trafficking statute does not support Appellant's arguments any more than it does those made in Ritz . Section 20A.03 of the Penal Code makes it a crime if a person, during a period that is 30 or more days in duration, engages two or more times in conduct that constitutes the offense of "trafficking of persons" against one or more victims. Section 20A.02(a) of the Penal Code lists all the different ways in which a person can commit the offense of "trafficking of persons."
Griffin v. State, No. 03-19-00429-CR, 2020 WL 7640149, at *1 (Tex. App.—Austin December 23, 2020).
Id.
Tex. Penal Code § 20A.03 ("Continuous Trafficking of Persons"); see also Tex. Penal Code § 20A.02 ("Trafficking of Persons").
(a) A person commits an offense if the person knowingly:
(1) traffics another person with the intent that the trafficked person engage in forced labor or services;
(2) receives a benefit from participating in a venture that involves an activity described by Subdivision (1), including by receiving labor or services the person knows are forced labor or services;
(3) traffics another person and, through force, fraud, or coercion, causes the trafficked person to engage in conduct prohibited by:
(A) Section 43.02 (Prostitution);
(B) Section 43.03 (Promotion of Prostitution);
(C) Section 43.04 (Aggravated Promotion of Prostitution); or
(D) Section 43.05 (Compelling Prostitution);
(4) receives a benefit from participating in a venture that involves an activity described by Subdivision (3) or engages in sexual conduct with a person trafficked in the manner described in Subdivision (3);
(5) traffics a child with the intent that the trafficked child engage in forced labor or services;
(6) receives a benefit from participating in a venture that involves an activity described by Subdivision (5), including by receiving labor or services the person knows are forced labor or services;
(7) traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by:
(A) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);
(B) Section 21.11 (Indecency with a Child);
(C) Section 22.011 (Sexual Assault);
(D) Section 22.021 (Aggravated Sexual Assault);
(E) Section 43.02 (Prostitution);
(F) Section 43.03 (Promotion of Prostitution);
(G) Section 43.04 (Aggravated Promotion of Prostitution);
(H) Section 43.05 (Compelling Prostitution);
(I) Section 43.25 (Sexual Performance by a Child);
(J) Section 43.251 (Employment Harmful to Children); or
(K) Section 43.26 (Possession or Promotion of Child Pornography); or
(8) receives a benefit from participating in a venture that involves activity described by Subdivision (7) or engages in sexual conduct with a child trafficked in the manner described in Subdivision (7).
The text of the statute makes clear that the legislature sought to criminalize both human trafficking and the exploitation of human trafficking victims. Though the statute can apply in situations in which there are two parties involved in the trafficking—the trafficker and the person exploiting the child victim—the statutory terms are not limited to only those situations. First, section 20A.02(a)(1) criminalizes the trafficking of a person for forced labor, while section 20A.02(a)(2) criminalizes the use of that labor. Section 20A.02(a)(5) criminalizes the trafficking of a child for forced labor, while Section 20A.02(a)(6) criminalizes the use of that labor. In both situations, the person receiving the benefit of the slave labor is just as culpable as the person providing the slave labor because both parties are responsible for the exploitation.
Compare Tex. Penal Code § 20A.02(a)(1) with Tex. Penal Code § 20A.02(a)(2).
Compare Tex. Penal Code § 20A.02(a)(5) with Tex. Penal Code § 20A.02(a)(6).
Additionally, Section 20A.02(c) provides that "if conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections." The legislature limited this in subjection (d) by prohibiting (with some exceptions) simultaneous prosecution for both continuous human trafficking and continuous sexual abuse of a child. Under the plain text of the statute, the legislature sought to provide as much protection for exploited people and children as possible by allowing prosecution for both human trafficking and the product of human trafficking. There is no textual suggestion that the person who traffics in children should be treated differently than those who exploit those children.
Second, the legislature's use of passive voice in subjection (7) demonstrates a legislative intent to protect children, not those who traffic them. By using the passive voice, the legislature intentionally left the identity of who abuses the child open. Had the legislature truly envisioned a required showing of "two culpable actors" within the same offense, as Appellant argues, it would have said so. But it did not specify in the statute that the person engaging in human trafficking as delineated in subsection (7) had to be different from the person victimizing the child. Indeed, the statute specifically allows that a trafficker can be guilty of trafficking if he causes the victimization of the child "by any means." The legislature clearly contemplated criminalizing situations in which the trafficker engages in both the traffic and the victimization.
Id.
Id.
Indeed, this Court just recently considered a case in which the human trafficker did just that. See Williams v. State , No. PD-0477-19, ––– S.W.3d ––––, –––– – ––––, 2021 WL 2132167, *1–4 (Tex. Crim. App. May 26, 2021).
Finally, the use of active voice in subsection (8) would seem to put any debate to rest. Under that subsection, a person commits an offense if he engages in sexual conduct with a child trafficked in a manner described in subjection (7). Just as subdivision (7) places no limitation on who victimizes the trafficked child, subdivision (8) places no limitation on who traffics the child "in the manner described in Subdivision (7)." Had the legislature truly intended an "either-or" limitation on prosecution, it would have written "engaged in sexual conduct with a child trafficked by another." It did not. The plain text demonstrates our legislature's focus upon protecting exploited children, not exempting human traffickers from criminal liability when they abuse those they traffic.
Id.
Compare Tex. Penal Code § 20A.02(a)(8) with Tex. Penal Code § 20A.02(a)(7).
Though the statutory terms allow for broad application, they do not lead to absurd results. The bar for concluding that a textual interpretation of a statute would lead to absurd results is, and should be high. Even if a consequence is unintended, improvident, or inequitable, it may still fall short of being unthinkable or unfathomable. Regardless of how broad Appellant regards the statutory terms, it is still at least possible that our legislature intended to classify Appellant's conduct as trafficking because it regarded removing a child from the safety of her home as particularly egregious conduct. This is a policy determination that our legislature gets to make. We are not at liberty to disturb it.
Combs v. Health Care Services Corp. , 401 S.W.3d 623, 630 (Tex. 2013).
Id.
Ritz , 481 S.W.3d at 386.
With these thoughts, I join the Court's order to refuse discretionary review.