Opinion
No. 05-15-00884-CR No. 05-15-00885-CR No. 05-15-00918-CR
07-28-2016
PARIS DEFRANCE MICHAEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F-14-70663-R; F-14-70722-R; and F-15-00261-R
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Schenck
Opinion by Justice Francis
A jury convicted Paris Defrance Michael of sexual assault, trafficking, and compelling prostitution, all involving a fourteen-year-old girl, and assessed punishment at concurrent prison terms of sixty-five years. In one issue, appellant contends the trial court erred in admitting a detective's expert testimony on child sex trafficking. We conclude this issue is without merit. In three remaining issues, appellant complains of numerous errors in the trial court's judgments. We sustain these issues, modify the judgments to conform to the record, and affirm the judgments as modified.
K.M. testified she was sexually assaulted when she was in the seventh grade. After that, she thought "everybody wanted something" and felt alone. Two years later, when she was fourteen years old, she climbed out of her bedroom window and ran away from home late one night. She arranged to be picked up by a person she met on Facebook but had never met in person, Dominque. Dominque arrived at K.M.'s house with appellant. They took her to Dominique's house, but Dominque would not let her go inside unless she agreed to have sex with him. K.M. refused and walked with appellant to his mother's house a few blocks away. Although K.M. planned to spend the night and go home the next day, she ended up staying with appellant for ten days. Over that time, they engaged in sexual intercourse several times. Appellant was twenty-two years old but told her he was sixteen. K.M. told appellant she was fourteen.
At first, appellant made no demands on K.M. On the fourth day, however, appellant took her to meet Amiee White. Amiee was the cousin of appellant's girlfriend who, at the time, was in jail. Appellant told K.M. that Amiee used to "work for him," but he did not explain what kind of work Amiee did and K.M. did not ask. Amiee told K.M. she used to prostitute and told K.M. she could make money. K.M. told Amiee she would not "feel comfortable" doing that, and Amiee said she would talk to appellant.
After that, appellant took K.M. for a walk, told her they "needed to eat," and said she needed to make money having sex. Appellant took K.M. to Wal-Mart and selected an outfit for her to wear. Instead of paying, appellant told her to put the outfit on under her clothes. Appellant and K.M. then went to Amiee's house, where K.M. smoked marijuana and put on makeup and fixed her hair. Once she was dressed, appellant, Amiee, and Amiee's boyfriend took her to a townhouse in Plano, where several men were waiting to have sex. Amiee explained to K.M. that she needed to take the money first, have sex, and then come out of the room. She told K.M. to have "protected sex" and gave her condoms. Appellant told her to charge $20 per customer.
Only K.M. and Amiee went inside the townhouse. Someone led K.M. upstairs and took her to a bedroom with a mattress on the floor. A line of men waited outside the door. K.M. had sex with one of the men and then walked out of the room. As for the other men waiting, she "kept telling them no" but then "figured" she had to "do it." She had sex with three more men before saying she was not going to do it anymore. Two more men were waiting, and Amiee encouraged her to "just go ahead and get them over with," so K.M. did. K.M. gave the money she received to appellant, who gave a portion of it to Amiee. K.M. did not keep any of the money.
Appellant and K.M. spent the following day "[s]moking and looking at tattoos" before appellant demanded she go outside and offer to have sex for money with people sitting in their cars on the parking lot. When K.M. refused because she "didn't like it the first time," appellant hit her and said he did not care. K.M. did as she was told and approached a man and asked if he wanted to have sex for money. He agreed, but when K.M. got in his car, she asked if he could take her home. Instead of taking her home, the man dropped her off at the same spot. When she told appellant the man changed his mind, appellant told her "to go back over there." K.M. said she was scared because she did not want appellant to hit her again, so she went back to the car and ended up having sex with the man in his back seat. She used a condom given to her by appellant. Afterwards, she walked back to appellant and gave him the money. Appellant then demanded she go up to another car, and K.M. had sex with a second man in his back seat and also gave that money to appellant.
Ten days after she left home, K.M. and appellant argued about her locking his cell phone and using it to text her mother. K.M. wanted to leave, but appellant refused. One of appellant's friends told him to let her go, and appellant did. K.M. walked to a nearby store and called her mother, but she did not answer. A stranger took her to a friend's house. From there, K.M. went to a motel and called her mother. The police and her family came to get her, and she gave a statement to the police before she was released.
K.M. heard from appellant again on her birthday two months later when he texted her and told her to come outside. When K.M. refused, appellant threatened to "shoot up" her house. Fearful that appellant would hurt her family, K.M. said she climbed out the window and left with him. She was with him for five or six days before she was able to contact her mother and return home. Appellant did not force her to prostitute during this time.
K.M.'s mother told the jury about her efforts to find K.M. after she ran away, including posting missing person flyers. She said she received a text message from her daughter while she was with appellant. After that, she received a message from appellant telling her she needed to give her daughter a pregnancy test when she came home. He also threatened to hurt K.M. if she did not remove the flyers.
The State also called Amiee, who gave the same general account about prostituting K.M. to several men at a house in Plano. Amiee was also charged with compelling K.M. to prostitute. According to Amiee, appellant was the boyfriend of her cousin, Aundrea, who was in jail in January 2014. During that time, appellant came to her house with K.M. He told Amiee he had a "little ho that he needed to take to go make money in Plano" so he could bail Aundrea out of jail. He offered Amiee gas money to take them, and Amiee agreed. Amiee gave K.M. makeup to get ready and told her about prostituting and what to expect. Amiee said K.M. did not seem like she wanted to do it. K.M. was "kind of sad" and "didn't talk too much," as if "they had already talked before they got here and it was already understood what she was supposed to do."
The place in Plano was called a "track," and Amiee had been there before while her cousin (appellant's girlfriend) prostituted. During those times, Aimee said her role was to sit and watch and make sure the men did not trying to do anything to her cousin while she was there.
When they arrived at the track, Amiee did the "negotiating." K.M. then went upstairs with the men while Amiee waited downstairs. While there, Amiee said she and appellant both, at different times, tried to convince K.M. to have sex with additional men to make more money.
The State also presented the testimony of Sgt. Byron Fassett as an expert on child sex trafficking. It is Fassett's testimony that is the subject of appellant's first issue.
In a hearing outside the jury's presence, Fassett testified about his training and experience. For twenty-four years, Fassett had been a sergeant over the child exploitation and sexual assault division, which consists of three units--internet crimes against children, child exploitation, and high risk sex victims trafficking. He supervised seventeen detectives. Fassett developed training for the National Center for Missing and Exploited Children and the FBI and had interviewed or been directly involved in investigating about 1,000 of these cases.
In analyzing child sex trafficking cases, Fassett said he learned that 70 to 80 percent of the victims are chronic runaways. Many of these victims have suffered a "prior trauma," such as being sexually assaulted. He developed a "high risk victims model" to aid law enforcement in locating these victims because they do not self-report, unlike traditional child sexual assault victims who make an outcry. Women and children involved in sex trafficking typically do not see themselves as victims, feel "complicit in their victimization," and may be deceptive. To identify victims, Fassett said they work with local shelters and hospitals to create a "funnel" so that people can report when they think a child might be involved in sex trafficking.
Fassett said child runaways are at a high risk for exploitation because if they are on the streets for any length of time, they cannot survive without the help of an adult. As he explained, children cannot get jobs, rent hotel rooms, or open a banking account. Fassett said there "are no free rides out there," and the child has only "one commodity" to sell.
At this point in Fassett's testimony, the trial judge interrupted, held a conference with the attorneys, and then said he was going to "streamline the process a little bit." After that, Fassett ended his direct testimony by saying that he had testified as an expert regarding perpetrators of child sex exploitation in both state and federal court.
On cross-examination, Fassett was asked what opinions he would be giving in the case. Fassett indicated that he would be testifying about the following opinions and issues: (1) the process and dynamics of child sex trafficking, how and why the child gets involved, who they are, and where they come from; (2) children do not choose to do this but are "literally conned" and compelled to engage by a variety of means; (3) the victim is typically a runaway on the street who has experienced a prior trauma and is lonely and is lured in by a person who takes them in, shows them a "good life," flashes money, and makes it "sound like it's going to be great"; (4) the trauma takes many forms, but is most often prior physical or sexual abuse that has not been dealt with or dealt with properly; (5) while they are often chronic runaways, there are also cases where a child has run away only once or twice and gets involved; and (6) the perpetrator in this case is not a "sophisticated trafficker."
Fassett said he had reviewed the seven-page prosecution report and discussed the investigating officer's findings and conclusions. He had not reviewed any videos, read any witness statements or detective notes, or interviewed any of the witnesses. He said he did not identify K.M. as a chronic runaway, which is only one factor in his study.
Appellant objected to Fassett testifying about a "typical victim" or perpetrator without interviewing appellant, K.M., or other witnesses. He argued that Fassett's testimony was "broad" and "general" and would be used to "pigeon hole" these facts "into something he may have seen in the past that may not fit in this case." He argued the jury would hear the testimony, become confused, and have an "emotional response" to what happens in other cases and "guess it happened here." The trial court overruled the objection.
Fassett's testimony in front of the jury was much the same as presented in the hearing. As before, he told the jury about the dynamics of child sex trafficking, the common characteristics of a child victim, and how officers use these characteristics to identify them. He described two types of perpetrators, the "old school pimp" and the unsophisticated trafficker. The former is a sophisticated trafficker who drives a wedge between the victim and her family and friends, uses psychological control, love, affection, and attention to make them totally dependent, and then uses physical abuse and drugs to maintain control. The unsophisticated trafficker is more opportunistic and takes a child already desensitized by social media and on the streets and "normalizes" prostitution for them.
Finally, he described the use of a "bottom girl" in the prostitution enterprise. Generally, the pimp uses a bottom girl or other woman to go out and find runaways at the train station, bus station, or malls. She typically is one that is heavily involved in prostitution and has been with a particular pimp for a long period of time. She is "out front" in the organization. A not-so-typical bottom girl is one who works "on the fringes" and hangs around with a pimp and helps him.
On cross-examination, Fassett expanded on the unsophisticated trafficker, who shows the person he is exploiting a "good life" by giving them a place to stay, providing alcohol or drugs, and allowing them to live freely without responsibility or accountability. Other perks may include giving the child attention and nice clothing, paying for having her hair and nails done, showing her a good time, and flashing money around.
With regard to K.M., Fassett said, to his knowledge, appellant did not flash money, provide fancy clothes, or provide hair or nail grooming, but appellant did provide her with a place to stay where she could just "hang out," use drugs, and do nothing. He acknowledged that K.M. was not a chronic runaway, although he erroneously believed that K.M. was picked up by another girl and brought to appellant. Nevertheless, his opinion that K.M. was compelled to prostitute was unchanged by the fact that she was actually picked up by appellant and a friend from her house, explaining that victims are recruited now through social media.
In his first issue, appellant argues the trial court abused its discretion by allowing Fassett to testify because his testimony did not "sufficiently 'fit' the facts of this case."
A trial court's decision to admit evidence is reviewed for an abuse of discretion and will not be reversed if it is within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Admission of expert testimony is governed by Texas Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.TEX. R. EVID. 702.
For expert testimony to be admissible under this rule, the party offering the testimony must demonstrate, by clear and convincing evidence, that such testimony is "sufficiently reliable and relevant to help the jury in reaching accurate results." Tillman, 354 S.W.3d at 435. Because only the relevancy prong is at issue in this case, we address only that requirement.
Relevance is a "looser notion than reliability" and is "a simpler, more straight-forward matter to establish." Id. at 438. We ask whether evidence will assist the trier of fact and is sufficiently tied to the facts of the case. Id. So, to be relevant, the expert has to tie pertinent facts of the case to the principles which are the subject of his testimony. Id. There is no requirement that the expert have personal knowledge of the facts for his testimony to be relevant. See Blasdell v. State, 384 S.W.3d 824, 830 (Tex. Crim. App. 2012) (in case involving "weapon focus effect" in eyewitness identification, court said expert had sufficient information to form conclusion even though expert had only read offense report and discussed case with defendant's counsel; expert was not in courtroom to hear complainant's testimony and had never interviewed her or investigating detective).
Appellant argues that "close scrutiny" of Fassett's testimony shows it was nothing more than conclusory statements "regarding what children do in some cases and how perpetrators act in other cases involving child sex trafficking." He asserts the detective could not apply his psychological profile testimony to the actual characteristics possessed by either K.M. or appellant. We disagree.
Fassett's overall testimony provided context to the evidence in this case and aided the jury in understanding and assessing that evidence. He explained the differences and challenges involved when dealing with a child victim of sex trafficking as opposed to child victims in traditional sex assault cases. He explained that while most trafficking victims are chronic runaways, there are cases where the child has run away only once or twice. Traffickers exploit these children by giving them a place to stay, providing drugs and alcohol, and then requiring them to prostitute to pay their way.
While K.M. did not meet every characteristic of the "typical" child sex trafficking victim and appellant did not meet every facet of the typical unsophisticated trafficker, Fassett's testimony was linked to numerous facts either directly or by the testimony of witnesses. Like most victims, K.M. was a victim of sexual assault and was a runaway. At fourteen, she needed a place to stay and could not take care of herself on the streets. She met appellant the night she ran away and ended up going home with him when Dominique would not allow her to stay at his house. As an unsophisticated trafficker, appellant seized the opportunity to take advantage of K.M., giving her a place to stay for several nights, showing her affection, allowing her to smoke marijuana, and allowing her freedom from responsibility. After a few days, however, he began demanding she prostitute to make money so they could eat. He took K.M. to Aimee, who essentially functioned as a "bottom girl," providing makeup for K.M. to wear, explaining what she needed to do, giving her condoms to use, looking out for her at the track, and encouraging her to have sex with more men when K.M. wanted to stop. K.M. gave all the money she made prostituting to appellant. When she refused to continue because she "didn't like" it, appellant hit her and said he did not care.
Having reviewed the evidence, we conclude Fassett's testimony assisted the trier of fact and was sufficiently tied to the facts of this case so as to be relevant. Therefore, the trial court did not abuse its discretion by allowing him to testify. We overrule the first issue.
In issues two through four, appellant requests this Court to correct numerous errors in the trial court's judgments. Specifically, he points out the judgments are erroneously entitled, "JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL", and all incorrectly reflect (1) appellant pleaded guilty, (2) no plea to the enhancement paragraph, (3) no findings on the enhancement paragraph, and (4) his punishment constituted "Terms of Plea Bargain." In addition, the judgment in Cause No. F14-70663-R, sexual assault, recites section 20.011 of the Texas Penal Code as the "Statute for Offense" instead of section 22.011.
In contrast, the record shows (1) the cases were tried before a jury, not a judge, (2) appellant pleaded not guilty, (3) the jury assessed punishment, (4) appellant pleaded true to the enhancement paragraph in each indictment, and (5) the jury found the enhancement paragraph true.
We have authority to correct a judgment below to make the record "speak the truth" when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the judgments to correct the above noted errors. We affirm the judgments as modified. We order the trial court to enter new judgments that reflect these modifications.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
150884F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-14-70663-R.
Opinion delivered by Justice Francis; Justices Fillmore and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect (1) the case was tried before a jury, (2) appellant pleaded not guilty, (3) the jury assessed punishment, (4) appellant pleaded true to an enhancement paragraph, (5) the jury found the enhancement paragraph true, and (6) the "Statute for Offense" is section 22.011(a)(2)(A) of the Texas Penal Code.As MODIFIED, the judgment is AFFIRMED. We ORDER the trial court to enter a new judgment that reflects these modifications. Judgment entered July 28, 2016.
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-14-70722-R.
Opinion delivered by Justice Francis; Justices Fillmore and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect (1) the case was tried before a jury, (2) appellant pleaded not guilty, (3) the jury assessed punishment, (4) appellant pleaded true to an enhancement paragraph, and (5) the jury found the enhancement paragraph true.As MODIFIED, the judgment is AFFIRMED. We ORDER the trial court to enter a new judgment that reflects these modifications. Judgment entered July 28, 2016.
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-15-00261-R.
Opinion delivered by Justice Francis; Justices Fillmore and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect (1) the case was tried before a jury, (2) appellant pleaded not guilty, (3) the jury assessed punishment, (4) appellant pleaded true to an enhancement paragraph, and (5) the jury found the enhancement paragraph true.As MODIFIED, the judgment is AFFIRMED. We ORDER the trial court to enter a new judgment that reflects these modifications. Judgment entered July 28, 2016.