Opinion
Nos. 05-04-01472-CR, 05-04-01473-CR
Opinion Filed October 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-72620-Tp and F03-72621-TP. Affirmed.
Before Justices MORRIS, WHITTINGTON, and LANG.
OPINION
Kenneth Darrell Puckett appeals his convictions for compelling prostitution and sexual assault of a child under seventeen years of age. In three issues, Puckett argues (1) the evidence is factually insufficient to support the conviction for the offense of compelling prostitution; (2) the evidence is factually insufficient to support the conviction for the offense of sexual assault of a child under seventeen years of age; and (3) the trial court erred in failing to grant a mistrial when the State elicited testimony that appellant had threatened to kill another person. For the reasons that follow, we decide all issues against appellant and the judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant, Y.N., moved to the United States from Ethiopia when she was seven years old. At the age of fourteen, she ran away from home when her parents threatened to send her back to Ethiopia. She moved from house to house until her childhood friend, Hewan Baye, invited Y.N. to live with her at the Extended Stay America Hotel. Y.N. was fifteen years old when she moved into the hotel with Baye. Baye lived at this hotel with appellant. According to Y.N., appellant had sex with her three days after she moved into the hotel and he had oral and vaginal sex with her between ten and fifty times during the following few months. Two weeks after she moved in, appellant informed Y.N. that she would have to talk to and dance for men in order to remain there. Soon after that, he told her that she must have sex with the men or she would have to move out. Y.N. and Baye testified that appellant gave them cell phones. Baye explained that appellant instructed the women that the phones must be turned on and they must stay on the line with him on a call while they were involved with "johns." She testified that this was to ensure that appellant knew how much money the women earned so he would know if they turned over to him all the money. Additionally, one of the cell phones was listed on an escort service advertisement featuring a picture of Baye. Appellant admitted at trial that he took the photograph of Baye and gave her a cell phone. Appellant provided Y.N. and Baye with condoms, paid for the advertisement, and paid for the hotel room. In exchange, the two women were required to give all the money they earned from engaging in prostitution to appellant. According to Y.N. and Baye, appellant threatened and hurt them on numerous occasions. In one instance, the two women attempted to hide from him, but appellant found them at a restaurant and forced them back to the hotel. On one occasion, appellant choked the women simultaneously. He brought a gun to the hotel and showed it to Y.N. and Baye, introducing it as his "friend." On other occasion, Y.N. and Baye packed their things and attempted to run from appellant while he was sleeping, but did not leave because he suddenly woke up. Y.N. and Baye were arrested after an undercover police officer called the number in the advertisement. Appellant was not arrested at that time because he knew of the officer's presence through one of the activated cell phones. Pictures of appellant were found in the hotel room when the women were arrested. Appellant testified that he believed Y.N. was nineteen years old and he denied ever having sex with her. He did, however, admit having sex with Baye. Appellant claimed to have met Baye when she was living on the street and that he bought her the cell phone and paid for the hotel room because he wanted to help her. Finally, he admitted being a drug dealer, but denied being a pimp. The jury convicted Puckett of both sexual assault of a child and compelling prostitution. Punishment was assessed by the jury at confinement for ten years and a $5,000 fine in the compelling prostitution case and confinement for twelve years and a $5,000 fine in the sexual assault case. Puckett now brings this appeal.II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant challenges the factual sufficiency of the evidence supporting his convictions. Specifically, he contends that the State did not offer credible and reliable evidence to prove that he knowingly caused Y.N. to commit prostitution or that he had sexual intercourse with her. He further contends that the trial testimony establishes that he was falsely accused. We disagree and affirm.A. Standard of Review
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In conducting this review, we must not "substantially intrude upon" the fact finder's role as the exclusive judge of the evidence's weight and the testimony's credibility. Johnson, 23 S.W.3d at 7. Accordingly, we must defer to the jury's decisions on credibility and weight. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.).B. Compelling Prostitution Conviction
To prove the compelling prostitution charge, the State was required to prove beyond a reasonable doubt that appellant knowingly (1) caused another by force, threat, or fraud to commit prostitution; or (2) caused by any means a person younger than seventeen years to commit prostitution. Tex. Pen. Code Ann. § 43.05 (Vernon Supp. 2004-05). In Tubbs v. State, 670 S.W.2d 407 (Tex.App.-Dallas 1984, no pet.), this Court interpreted the statute to mean that a person commits the offense "regardless of the means used." Id. at 408. Appellant contends the evidence is factually insufficient to support his conviction under this statute because he was falsely accused and the conviction rests, according to him, on false and perjured testimony. However, evidence presented at trial showed that appellant told Y.N. that she must have sex with "johns" to stay at the hotel, he provided her with a cell phone and gave her condoms, and he required her to give him all the money she earned from her prostitution activities. Y.N. was fifteen years old at the time these events took place. The jury was the sole judge of the weight and credibility of the witnesses and their testimony. Having reviewed all the facts under the proper standard, we cannot conclude the evidence was factually insufficient to support the conviction for compelling prostitution. We decide appellant's first issue against him.C. Sexual Assault of a Child Conviction
To obtain a conviction for sexual assault of a child under seventeen years of age, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the contact or penetration of the anus, mouth, or sexual organ of Y.N., who was a child younger than seventeen years of age and not his spouse. Tex. Pen. Code Ann. § 22.011(a)(2), (c)(1)-(c)(2) (Vernon Supp. 2004-05). The testimony of a child victim alone is sufficient to support a conviction for sexual assault of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Y.N. testified that appellant had sex with her three days after meeting her. She testified that he engaged in oral and vaginal sex between ten and fifty times with her within the following few months. Baye testified that she watched appellant engage in sexual activity with Y.N. Appellant testified he did not have sex with Y.N. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony. Johnson, 23 S.W.3d at 7. The jury decided this issue and we may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Accordingly, we conclude the evidence was factually sufficient to support appellant's conviction. Appellant's second issue is resolved against him.III. DENIAL OF MOTION FOR MISTRIAL
In his third and final issue, appellant contends the trial court erred in failing to grant a mistrial when the State elicited testimony from Hewan Baye that Appellant threatened to kill her if she left him. Appellant asserts that this statement was made outside the presence of Y.N., the complainant, and thus it constituted evidence of a harmful, extraneous offense. When his objection to Baye's statement was sustained, appellant requested that the jury be instructed to disregard the statement. The trial court instructed the jury to disregard Baye's statement, but refused appellant's subsequent request for a mistrial. Appellant urges that an instruction to disregard was insufficient to cure this error. In response, the State asserts that appellant has not preserved his complaint for appellate review and that any error caused by Baye's testimony was cured by the trial court's instruction to disregard. Assuming without deciding that appellant's objection properly preserved error for review, we determine that appellant was not harmed by the trial court's denial of his motion for mistrial.A. Standard of Review and Applicable Law
Rule 33.1(a)(1) of the Texas Rules of Appellate Procedure requires a complaint be made by a timely objection to the trial court in order to preserve the complaint for appellate review. See Tex.R.App.P. 33.1. An objection should be made as soon as the ground for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997); Dinkins v. State, 894 S.W.2d 330, 335 (Tex.Crim.App. 1995). Failure to object until after an objectionable question has been asked and answered without any legitimate justification for the delay results in waiver of the objection. Id. A timely objection to an improper question or response in the trial court is often followed by a request for an instruction to disregard and a motion for a mistrial. See Russeau v. State, 2005 WL 1523774 *10-11 (Tex.Crim.App. 2005); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070 (2000). We review a trial judge's decision to deny a mistrial under an abuse of discretion standard. Ladd, 3 S.W.3d at 567 (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)). The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. struck) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)). A mistrial is an extreme remedy for prejudicial events occurring during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996); Edwards, 106 S.W.3d at 838. A prompt instruction to disregard will ordinarily cure the prejudicial effect associated with an improper question and answer, even one regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). A mistrial is only required when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Dooley v. State, 65 S.W.3d 840, 842 (Tex. App-Dallas 2002, pet. ref'd). To decide whether this narrow exception applies, we must examine the particular facts and circumstances of each case. Hinojosa, 4 S.W.3d at 253; Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990), cert. denied, 500 U.S. 960 (1991).B. Application
We begin our review by looking at the pertinent testimony. During the jury trial, the prosecutor questioned Hewan Baye as to why she continued to stay with Appellant:Q: So, you were an adult, why did you stay with him?
A: I don't know. I have to, he told me he was going to kill me if I leave him.After two more questions by the State, appellant objected to this testimony on the basis that it was evidence of an extraneous offense under Rule 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 404(b). The trial court overruled the objection and allowed the State to continue its questioning of the witness. Two questions later, it became apparent appellant's threat to Baye occurred outside Y.N.'s presence. Appellant again voiced the same objection. At that time, the trial court sustained the objection, instructed the jury to disregard the statement concerning "the threat to kill this witness by defendant," and overruled appellant's motion for mistrial. Assuming without deciding that appellant's objection was timely, stated a proper basis for exclusion of the testimony, and preserved his complaint for appellate review, we determine, based on the record, that the trial court's instruction to the jury to disregard Baye's testimony about the threat cured any error. Nothing in the record suggests the trial court's instruction to disregard the statement of the witness was not followed by the jury, nor does the record suggest that the instruction did not cure any error caused by the testimony. Furthermore, the record shows evidence of several other similar threats made by appellant to both Baye and Y.N. Based upon our review of the facts and circumstances in this case, this statement did not "inflame the minds of the jury" and affect the verdict. See Hinojosa, 4 S.W.3d at 253. In light of the trial court's instruction to disregard and the entire trial record, we conclude appellant was not harmed by the trial court's denial of his motion for mistrial. We decide against appellant on his final issue.