Opinion
NOS. PD-0262-20 PD-0263-20
06-26-2024
Andrew James TURLEY, Appellant v. The STATE of Texas
Jessica A. Caird, for the State of Texas. Cheri Lynn Duncan, Houston, for Appellant.
ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
Jessica A. Caird, for the State of Texas.
Cheri Lynn Duncan, Houston, for Appellant.
OPINION
Per curiam.
In 2018, a jury convicted Andrew James Turley, Appellant, of one count of compelling prostitution of a child under 18, and one count of trafficking a child based on the commission of compelling prostitution. See Tex. Penal Code §§ 43.05(a)(2) (compelling prostitution), 20A.02(a)(7)(H) (trafficking) (2015 versions). The Fourteenth Court of Appeals reversed the convictions, finding the evidence legally insufficient. The court of appeals determined that, as a matter of law, the four-year-old victim was incapable of committing the underlying offense of prostitution because she lacked the mental capacity to form the requisite mens rea for that offense—knowingly. See id. § 43.02(a)(1) (2015 prostitution statute). In a prosecution for compelling prostitution or for trafficking based on compelling prostitution, the victim’s commission of prostitution is an essential element of the offense. See id. § 43.05(a)(2). Because there was no evidence in this case to show that the young victim had knowingly engaged in prostitution, the court of appeals held that it had no choice but to reverse Appellant’s convictions and render judgments of acquittal.
The indictment alleged that Appellant committed this conduct in November 2015. The Legislature has amended some of the pertinent statutory language for the applicable statutes since 2015. We address the applicable statutory language based on the date of Appellant’s conduct in our analysis below. All citations are to the 2015 versions of the statutes.
Under Thornton, before it may reform a judgment to reflect conviction for a lesser-included offense, a reviewing court:
must answer two questions: 1) in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support the conviction? If the answer to either of these questions is no, the court of appeals is not authorized to reform the judgment. But if the answers to both are yes, the court is authorized—indeed, required—to avoid the "unjust" result of an outright acquittal by reforming the judgment to reflect conviction for the lesser-included offense.
425 S.W.3d at 300.
We agree with the court of appeals that the evidence was legally insufficient to support Appellant’s convictions, but we reach that conclusion under a distinct rationale. The record before us shows that the child victim had been drugged and was asleep prior to the planned sexual encounter. Further, because this was a law-enforcement sting operation, no sexual conduct actually occurred. Thus, regardless of the victim’s mental state, the record fails to show any conduct by the victim that could logically give rise to a finding that she committed prostitution under the applicable statutory definition of that offense—that is, that she "offer[ed] to engage, agree[d] to engage, or engage[d] in sexual conduct" in return for receipt of a fee. See id. § 43.02(a)(1). Accordingly, viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally insufficient to support Appellant’s convictions for compelling prostitution and trafficking. Nevertheless, because the evidence clearly supports finding that Appellant had the specific intent to commit the charged offenses and did acts amounting to more than mere preparation that tended but failed to effect commission of the offenses, we will reform his convictions to attempted compelling prostitution and attempted trafficking of a child. See id. §§ 15.01(a), 43.05(a)(2), 20A.02(a)(7)(H). We, therefore, reverse the judgment of the court of appeals, reform Appellant’s judgments accordingly, and remand this case to the trial court for a new punishment hearing.
I. Background
In November 2015, Appellant posted an advertisement on Craigslist entitled "Play with Daddy’s Little Girl." Detective David Patterson, who was working undercover with the Houston Police Department’s Vice Division, found the advertisement and began communicating with Appellant as "Jay Cannon." Through an exchange of text messages and emails, Appellant sent Detective Patterson pictures of a young girl, whom law enforcement later identified as Appellant’s four-year-old daughter, S.E.B. Appellant proposed that "Jay" meet up with S.E.B. for a sexual encounter. The two agreed upon a fee of $1,000 for two hours of time with S.E.B., with the understanding that "Jay" could do "everything" with S.E.B. except for vaginal penetration. Then, without the knowledge of S.E.B.’s mother, Appellant arranged for "Jay" to meet him and S.E.B. at the mother’s apartment.
On the day of the planned encounter, Appellant drugged S.E.B. with a sleep aid. When Detective Patterson arrived at the apartment, he showed Appellant the $1,000 payment, and Appellant escorted him into S.E.B.’s bedroom, where she was sleeping. Appellant removed S.E.B.’s blanket, revealing that she was wearing nothing except for a pajama top. Detective Patterson touched S.E.B.’s forehead, and she began to wake up, which Detective Patterson used as an excuse to leave the room. Detective Patterson then gave a signal, prompting surveilling officers to arrest Appellant.
The State charged Appellant with compelling prostitution of a child younger than 18 years of age and trafficking a child younger than 18 years of age based on the underlying offense of compelling prostitution. See Tex. Penal Code §§ 43.05(a)(2); 20A.02(a)(7)(H). A jury convicted Appellant of both charges. For each charge, Appellant received a sentence of 30 years’ imprisonment and a $10,000 fine. The trial court ordered the sentences to be served consecutively.
On direct appeal, Appellant challenged the sufficiency of the evidence to support both convictions. He observed that both charges would require a finding that the four-year-old victim, S.E.B., "committed prostitution." See id. Relying on the Texas Supreme Court’s decision in In re B.W., Appellant argued that children under the age of fourteen, as a matter of law, cannot commit the offense of prostitution. See 313 S.W.3d 818, 826 (Tex. 2010) (holding, on appeal from a finding of delinquent conduct for prostitution, that because minors under the age of fourteen "lack the capacity to consent to sex as a matter of law," they "may not be charged" with prostitution). In the alternative, Appellant argued that, even if a four-year-old could theoretically commit prostitution, there was no evidence to support that S.E.B. knowingly committed any act amounting to prostitution here.
The court of appeals agreed with Appellant’s position and reversed his convictions. Turley v. State, 597 S.W.3d 30, 36 (Tex. App.—Houston [14th Dist.] 2020, pet. granted). The court reasoned that the statutory language in the compelling prostitution statute was "plain and unambiguous" in requiring proof that another person (in this case, S.E.B.) "was caused to commit the offense of prostitution," as that offense is defined under Penal Code Section 43.02. Id. at 38, 42. The applicable version of Section 43.02 in effect in 2015, in turn, would require proof under these facts that, " ‘in return for receipt of a fee,’ " the child " ‘knowingly ... offer[ed] to engage, agree[d] to engage, or engage[d] in sexual conduct,’ " or "solicited] another in a public place to engage with the actor in sexual conduct for hire." Id. at 43 (citing 2015 prostitution statute). Relying on B.W., the court of appeals then concluded that "S.E.B. could not have committed prostitution because she lacked the mental capacity to consent to sexual conduct as a matter of law." Id. (stating that "children younger than 14 lack ‘the legal capacity to consent, which is necessary to find that a person knowingly agreed to engage in sexual conduct for a fee’ ") (quoting B.W., 313 S.W.3d at 822, 824). The court of appeals further reasoned that, even assuming, arguendo, that a four-year-old could knowingly engage in conduct constituting prostitution, the evidence here would fail to meet that standard because S.E.B. had been drugged and was asleep at the time of the planned encounter. Id. at 45. Thus, "[t]he only evidence at trial was that S.E.B. did not possess a knowing culpable mental state." Id.
Chief Justice Frost concurred. Id. at 47. She urged that, regardless of the victim’s age or culpable mental state, the evidence was legally insufficient because it failed to establish any acts by the victim that could amount to prostitution under the applicable statutory definition of that offense. Id. at 48-49 (observing that there was no evidence to show "(1) that in return for receipt of a fee, the complainant offered to engage, agreed to engage, or engaged in sexual conduct; or (2) that the complainant solicited another in a public place to engage with the complainant in sexual conduct for hire."). Thus, "[b]ecause Prostitution Conduct is an essential element of the compelling-prostitution offense, this court must hold the evidence legally insufficient[.]" Id. at 49. Chief Justice Frost criticized the majority for "go[ing] places the court need not and should not tread" by resolving the case under B.W.’s matter-of-law holding based on the victim’s age, rather than simply addressing the facts in the record and holding that they failed to establish the victim’s commission of any acts constituting prostitution. Id. at 49, 53. This Court granted the State’s petition for discretionary review on two grounds to review the court of appeals’ holding that the evidence was insufficient under these circumstances.
The State’s grounds for review ask:
"1. Did the court of appeals err when it held as a matter of law that selling sexual contact with a four-year-old child could never constitute compelled prostitution?"
"2. Must a child knowingly engage in an act of prostitution for the person who sold sex with her to be guilty of compelling prostitution?"
Tex. Penal Code Ann. § 43.03(b)(2) (2015) ("[promotion of prostitution] is a felony of the second degree if the actor engages in conduct ... involving a person younger than 18 years of age engage in prostitution"); amended by Act of May 28, 2019, 86th Leg., R.S. ch. 273, Tex. Gen. Laws 461, 462 (making the offense of a promotion of prostitution a felony of the first degree if the conduct involves a person younger than 18 years of age).
At the time of the offense in 2015, Section 20A.02(a)(7)(H) read: "A person commits an offense if the person knowingly … traffics a child and by any means causes the trafficked child to engage in, or become the victim of, conduct prohibited by ... Section 43.05 (Compelling Prostitution)[.]"
II. Discussion
We agree with Chief Justice Frost’s position in so much as the central sufficiency question in this case can be resolved through a more straightforward analysis than that undertaken by the court of appeals’ majority opinion. Regardless of the victim’s age or culpable mental state, there is simply no evidence in this record to show that the victim engaged in any act amounting to prostitution under the applicable statutory definition for that offense. Thus, for purposes of Appellant’s convictions for compelling prostitution and trafficking based on compelling prostitution, we conclude that the jury could not have rationally found that he caused the victim to commit prostitution. Accordingly, the evidence is insufficient to support Appellant’s convictions for the charged offenses. However, because the evidence is clearly sufficient to support convictions for attempted compelling prostitution and attempted trafficking based on the underlying offense of compelling prostitution, we reform the judgments of conviction accordingly.
A. Sufficiency of the Evidence
[1–3] In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to the elements of the offense as defined by the hypothetically correct jury charge. Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018). The hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Alfaro-Jimenez v. State, 577 S.W.3d 240, 244 (Tex. Crim. App. 2019).
1. Compelling Prostitution
Under the version of the compelling prostitution statute in effect at the time of Appellant’s conduct, a person commits an offense if he: "knowingly ... 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 the actor commits the offense." Tex. Penal Code § 43.05(a)(2) (2015 version). The term "prostitution" is statutorily defined for purposes of Penal Code Chapter 43 as "the offense defined in Section 43.02," which in turn provides:
Acts 2015, 84th Leg., R.S., ch. 1273 (S.B. 825), eff. Sept. 1, 2015.
Id.
With respect to the first of the two Thornton questions, whether the jury verdict necessarily also embraced every element of the lesser-included offense, particularly as it relates to the lesser-included offense of attempt, a reviewing court in this case would have to find as follows: that by its guilty verdict for the greater offense, the jury necessarily also determined that 1) with specific intent to knowingly cause a child younger than 18 years to commit prostitution, 2) the defendant did an act amounting to more than mere preparation that 3) tended but failed to result in causing the child to commit prostitution. See Thornton, 425 S.W.3d at 300–01.
Tex. Penal Code Ann. § 43.03(a)(2) ("A person commits an offense if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly ... solicits another to engage in sexual conduct with another person for compensation").
If any one of the three reasons the combined court of appeals opinions articulated for finding the evidence insufficient to support conviction for the greater offenses holds water, it seems to me that it would be necessary to decide with respect to each reason whether the evidence can nevertheless support conviction for the attempts under a Thornton analysis. The Court today seems to limit its analysis to Chief Justice Frost’s rationale.
A person commits an offense if, in return for receipt of a fee, the person knowingly: (1) offers to engage, agrees
to engage, or engages in sexual conduct; or (2) solicits another in a public place to engage with the actor in sexual conduct for hire.
Acts 2015, 84th Leg., R.S., ch. 1273 (S.B. 825), eff. Sept. 1, 2015.
Subsection (b) of the statute prohibited a person from soliciting another to engage in sexual conduct in exchange for a fee paid by the actor. See Tex, Penal Code § 43.02(b) (2015 version). Because it prohibits the conduct of the person seeking to purchase sexual services, rather than the conduct of the person providing those services, that provision is not at issue based on the facts of this case.
Applying the foregoing statutory elements to this case, the hypothetically correct jury charge here would include the following elements: (1) Appellant; (2) knowingly; (8) caused by any means; (4) S.E.B. (a child younger than 18); (5) to commit prostitution. See Tex. Penal Code § 48.05(a)(2).
[4] The court of appeals’ majority opinion reasoned that, to establish the element of "committing prostitution’’ here, the evidence would have to show that S.E.B. knowingly offered to engage, agreed to engage, or engaged in sexual conduct in return for a fee, or solicited another in a public place to engage in sexual conduct for hire. Id. § 48.02(a)(1), (2). But we agree with Chief Justice Frost that, regardless of S.E.B.’s mental state, there is no evidence to show that she actually committed any of the requisite nets to establish the commission of prostitution. It is undisputed that S.E.B. was drugged and asleep in the moments leading up to the planned encounter. There is no evidence showing that S.E.B., at any time, "offer[ed]" or "agree[d]" to engage in sexual conduct for a fee, or that she "solicit[ed]" another to engage in sexual conduct for hire—indeed, all the evidence suggests that she was entirely unaware of the arrangement. Further, because this was a law-enforcement sting operation, no sexual conduct ultimately occurred. As a result, even viewing the evidence in the light most favorable to the verdict, no rational juror could have reasonably found that Appellant caused S.E.B. to "commit prostitution" under the statutory elements set forth above. Consequently, the evidence is insufficient to support Appellant’s conviction for compelling prostitution of a child.
2. Trafficking
[5] The trafficking statute provides, in relevant part, that it is an offense for a person to knowingly "traffic[ ] a child and by any means cause[ ] the trafficked child to engage in, or become the victim of, conduct prohibited by: ... Section 43.05 (Compelling Prostitution)." Tex. Penal Code § 20A.02(a)(7)(H). The hypothetically correct jury charge as applied to this offense would include the following elements: (1) Appellant; (2) knowingly; (3) trafficked S.E.B.; and (4) by any means caused her to become the victim of conduct prohibited by Penal Code Section 43.05 (compelling prostitution). See id. Because no completed offense of compelling prostitution occurred here, S.E.B. cannot be a "victim" of conduct prohibited by that statute. Accordingly, under our holding above that the evidence is insufficient to support Appellant’s conviction for compelling prostitution, this necessarily means the evidence is also insufficient to support his conviction for trafficking based on the predicate offense of compelling prostitution.
"Traffic" is statutorily defined as "to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means." Tex Penal Code § 20A.01(4).
B. Reformation [6] Although Appellant did not commit the offenses for which he was convicted, that does not end our analysis here. If after finding the evidence insufficient to support a greater-inclusive offense the record clearly supports a conviction for an uncharged lesser-included offense, we are authorized, "indeed required," to avoid the "unjust" result of an outright acquittal by reforming the judgment to reflect a conviction for the lesser-included offense. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). Attempt is by definition a lesser-included offense of both of the charged offenses here. See Tex. Code Crim. Proc. Art. 37.09(4). A person commits an attempt if, "with the specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code § 15.01(a).
[7] Viewing the evidence in the light most favorable to the verdict, the record clearly establishes that Appellant intended to cause S.E.B. to commit prostitution by causing her to engage in sexual conduct in return for the $1,000 payment. See Tex. Penal Code §§ 43.02(a)(1); 43.05(a)(2). It cannot rationally be disputed that Appellant took steps amounting to more than mere preparation to achieve that goal—he arranged a time and place for the encounter, brought S.E.B. to that place at the planned time, drugged her, and brought "Jay" into the room where S.E.B. was sleeping. It was only because this was a sting operation that no sexual conduct ultimately occurred.
[8] The only remaining question is whether, to support Appellant’s conviction for attempt under these circumstances, he must also have intended that S.E.B. harbor the applicable culpable mental state for the prostitution statute, knowingly. We conclude that the answer to this question is ‘no.’ We have observed that the "specific intent" element of the attempt statute focuses on the actor’s purpose in bringing about the desired result. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (op. on reh’g) ("The element ‘with specific intent to commit an offense’ has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result[.]"). The desired result at issue here is causing S.E.B. to engage in sexual conduct in exchange for a fee. Her culpability under the prostitution statute is Immaterial to that result.
Further, we take note of the structure of the compelling prostitution statute, in that it focuses on Appellant’s conduct in causing another person to commit prostitution, See Tex. Penal Code § 43.05(a)(2) ("A person commits an offense if the person knowingly: ... causes by any means a child younger than 18 years to commit prostitution[.]"). In this sense, the statute bears some similarities to Penal Code Section 7.02(a)(1), which focuses on an actor’s responsibility for "an offense committed by the conduct of another" if he acts with the kind of culpability required for the offense and "causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense." Id. § 7.02(a)(1) (emphasis added). This provision plainly recognizes that an actor may cause an innocent person to engage in conduct that constitutes "an offense," even if the innocent person lacks the requisite culpable mental state for the offense. Instead, that culpable mental state can be supplied by the person "causing" the other to engage in the conduct. Whatever implications this principle may have for the greater offenses charged in this case, for purposes of evaluating Appellant’s guilt for attempt here, it is enough to say that he specifically intended for S.E.B. to engage in the conduct prohibited by the prostitution statute, regardless of whether he intended that she do so knowingly.
Given the circumstances, we conclude that the evidence is sufficient to support Appellant’s convictions for the lesser-included offenses of attempted compelling prostitution and attempted trafficking based on the predicate offense of compelling prostitution, both of which are second-degree felony offenses. See Tex. Penal Code § 15.01(d) (providing that an attempt offense is one category lower than the offense attempted). We reform the judgments of conviction accordingly.
III. Conclusion
For the foregoing reasons, we hold that the evidence is insufficient to support Appellant’s convictions for the charged offenses of compelling prostitution and trafficking. The record contains no evidence that S.E.B. committed an act of prostitution, as would be required to uphold Appellant’s convictions for those offenses. However, because the record clearly supports a finding of guilt for the lesser-included offenses of attempted compelling prostitution and attempted trafficking, we reform the judgments to reflect convictions for the lesser-included offenses. We reverse the judgment of the court of appeals and remand this case to the trial court for a new punishment hearing.
Newell, J., filed a concurring opinion in which Walker, J., joined.
Yeary, J., filed a dissenting opinion.
Keller, P.J., dissented.
Newell, J., filed a concurring opinion in which Walker J., joined.
As detailed by the Court, the facts of this case are horrible. Appellant put an advertisement on Craigslist to solicit someone to "Play with Daddy’s Little Girl," a thinly veiled invitation for sexual predation on a small child. Fortunately, law enforcement answered the ad and rescued Appellant’s four-year-old daughter who had been drugged with a sleep aid.
The State charged Appellant with the offense of compelling child prostitution, a first-degree felony, and human trafficking based upon the predicate offense of compelling child prostitution, also a first-degree felony.1a As the Court explains, the offense of compelling child prostitution requires some showing that the child engaged in prostitution, and, by extension, so does the offense of human trafficking based upon compelled prostitution. I agree with the Court that there was no evidence presented that the child in this case engaged in prostitution despite Appellant’s efforts.
At the time the State prosecuted Appellant, the offense of compelling prostitution was the only first-degree felony prostitution offense that could arguably apply to what Appellant attempted to do in this case. At that time, the crime of promotion of prostitution involving a child was only a second-degree felony.2a The legislature made that offense a first-degree felony in 2019.3a The offense of promotion of prosti- tution involving a child does not require proof that the child actually engaged in prostitution in order for the person promoting the child prostitution to be convicted of the first-degree felony offense.4a Going forward, prosecutors may be able to rely upon this offense as a possible charge to secure a first-degree felony conviction when faced with facts similar to those presented here even though the prosecutors in this case could not.
However, the offense of trafficking of persons for child prostitution is potentially more problematic. While the statute allows for a first-degree felony conviction for human trafficking of a child based upon the predicate offenses of promotion of prostitution and compelling prostitution, the operative text of that statute arguably requires a showing that the child engaged in the forbidden conduct.5a Under Section 20A.02(a)(7), a person commits the offense of human trafficking if he "by any means causes the trafficked child or disabled individual to engage in, or become the victim of’ the listed predicate offenses.6a One possible reading of the statutory requirement that the child "engage in" particular conduct could be that the State would be required to show that the child was the actor who promoted or compelled the prostitution. And it could be argued that the use of the phrase "become the victim of’ requires a showing of a completed offense of prostitution even under the offense of promotion of prostitution. At the very least, the question of whether a child victim can be a victim of promoting prostitution without engaging in sexual conduct is one that would need to be addressed in the future. I defer to the Legislature on whether this construction of the statute warrants amendment.
With these thoughts I join the Court’s opinion.
Yeary, J., filed a dissenting opinion.
Having concluded that the court of appeals was correct in this case to hold the evidence legally insufficient to support Appellant’s convictions for compelling prostitution and trafficking of persons, the Court today proceeds to reform the judgments to reflect convictions for a lesser-attempted commission of these offenses. Majority Opinion at 618-20. For the following reasons, I disagree with this disposition.
I. R emand for R eformation D ecision
This is a State’s petition for discretionary review, for starters, and the State does not argue (even in the alternative) that the judgments should be reformed to reflect a conviction for attempted commission of the offenses. And even if the State had made such an argument, the better response would be, in any event, to remand the cases to the court of appeals for that court, in the first instance, to decide whether reformation is permissible under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014), after supplemental briefing on that issue from the parties.1b It is not at all clear to me that the Court’s abbreviated Thornton analysis is correct. So I would remand this case to allow briefing and so that our consideration of the issue, later, if further discretionary review is even necessary, might benefit "from a carefully wrought decision from the court of appeals" on the question. McClintock v. State, 444 S.W.3d 15, 21 (Tex. Crim. App. 2014).
It is true that Thornton declared that a court of appeals is "required" to reform a judgment to reflect conviction for a lesser-included offense whenever its criteria for doing so are met. 425 S.W.3d at 300. And this Court has done so when acting in its capacity as an appellate court rather than a discretionary review court. See Griffin v. State, 491 S.W.3d 771, 776-77 (Tex. Crim. App. 2016) (reforming judgment of conviction for capital murder to reflect conviction for murder when the evidence failed to establish the aggravating element). Also, where a court of appeals has erroneously declared the evidence sufficient to establish the charged offense, and this Court, on discretionary review, has overturned that judgment—and the State has explicitly argued that the Thornton criteria for reformation are plainly met—we have reformed the judgment ourselves. Nowlin v. State, 473 S.W.3d 312, 319 (Tex. Crim. App. 2015).
But more often, in our capacity as a discretionary review court, when we have reversed a court of appeals’ conclusion that the evidence was sufficient to support the greater charged offense, the Court has remanded the case to the court of appeals to conduct the Thornton reformation analysis in the first instance. See Lang v. State, 561 S.W.3d 174, 184 (Tex. Crim. App. 2018) ("The parties have not briefed this issue in this Court, and we decline to address this question in the first instance."); Walker v. State, 594 S.W.3d 330, 340 (Tex. Crim. App. 2020) (where the court of appeals erroneously concluded that the evidence was sufficient to support the charged offense, "the proper course of action is to remand" for the court of appeals to conduct the Thornton analysis); Edwards v. State, 666 S.W.3d 571, 577 (Tex. Crim. App. 2023) ("Because the parties have not had the opportunity to brief [the question of reformation under the Thornton criteria], and the court of appeals has not had occasion to consider it, we remand the cause for further proceedings consistent with this opinion.").
This is in keeping with our general posture of remanding to the court of appeals to render a "decision" in the first instance whenever our disposition of an issue on discretionary review has raised new questions not previously addressed by the court of appeals. See, e.g., Menefee v. State, 287 S.W.3d 9, 18–19 (Tex. Crim. App. 2009) (remand for the court of appeals to address extant issues of procedural default and harm when this Court reversed its "decision" on the merits). It is true that, "when the proper disposition of an outstanding issue is clear, [the Court] will sometimes dispose of it on discretionary review in the name of judicial economy." Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014) (citing Davison v. State, 405 S.W.3d 682, 691–92 (Tex. Crim. App. 2013)).
Here, the court of appeals concluded that the evidence was insufficient to sup- port Appellant’s convictions, and today this Court affirms that conclusion. But the court of appeals did not conduct Thornton’s "required" analysis to decide whether reformation of the judgment to reflect conviction for a lesser-included offense was appropriate. The State has not asked us in its petition for discretionary review either to conduct that analysis ourselves or remand it for that analysis. In my view, the Court’s conclusion today that reformation is appropriate is—at best—questionable. At most, then, I would remand the cases so that the court of appeals can address and "decide" that issue in the ordinary course of the appellate process, with input from the parties.
II. R eformation is N ot C learly P roper
Between the two of them, the majority opinion and the concurrence in the court of appeals came up with three reasons why the evidence was legally insufficient. The majority addressed the offense of compelling prostitution first. Turley v. State, 597 S.W.3d 30, 38 – 45 (Tex. App.—Houston [14th Dist.] 2020). This offense requires the actor to:
• "knowingly"
• "cause[]"
• "a child younger than 18 years"
• "to commit prostitution[.]"
Tex. Penal Code § 43.05(a)(2). "Prostitution" for purposes of this provision explicitly "means the offense defined in Section 43.02" of the Penal Code. Tex. Penal Code § 43.01(2). Therefore, in order to commit the offense of compelling prostitution, an actor must:
• "knowingly"
• "cause[]"
• a child under 18 to
• "knowingly"
• "offer[] to engage, agree[] to engage, or engage[ ] in sexual conduct"
• "in return for receipt of a fee[.]"
Tex. Penal Code § 43.02(a)(1).
Relying on an opinion from the Texas Supreme Court, the court of appeals majority held, first of all, that the child at issue in this case, S.E.B., being younger than 14 years of age, simply could not commit the offense of prostitution because she lacked the capacity, as a matter of law, to commit prostitution. Turley, 597 S.W.3d at 43 – 44 (effing In re B.W., 313 S.W.3d 818 (Tex. 2010)). Second, and alternatively, the majority in the court of appeals held that, in any event, because the child was asleep during the incident, she could not have formulated the requisite intent to commit prostitution, since she could not have knowingly offered to engage, agreed to engage, or actually engaged in sexual conduct for a fee. Id. at 45. For essentially the same two reasons, the majority then likewise found the evidence insufficient to support Appellant’s conviction for trafficking of persons under Section 20A.02(a)(7)(H). Id. at 45–46; Tex. Penal Code § 20A.02(a)(7)(H).2b Chief Justice Frost, in a concurring opinion, preferred a third reason to declare the evidence insufficient. She took the position that the evidence was insufficient to show that the sleeping child, in any event, offered, agreed, or engaged to do anything, knowingly or otherwise. Id. at 47–49 (Frost, C.J., concurring).
Today, without passing on the other two theories for why the evidence is insufficient, the Court endorses Chief Justice Frost’s view of why the evidence was insufficient to support the convictions for compelling prostitution and trafficking of persons. See Majority Opinion at 617 ("We agree with Chief Justice Frost’s position in so much as the central sufficiency question in this case can be resolved through a more straightforward analysis than that undertaken by the court of appeals’ majority opinion."); id. at 618 ("[W]e agree with Chief Justice Frost that ... there is no evidence to show that [S.E.B.] actually committed any of the requisite acts to establish the commission of prostituion."). So far, so good.
From there, however, the Court goes on to declare that the evidence is nevertheless sufficient to support conviction for attempted commission of these same two offenses,, compelling prostitution and trafficking. Majority Opinion at 618-20. Without making specific reference to the Thornton criteria for analyzing whether reformation is justified,3b the Court simply observes: "[T]he record clearly establishes that Appellant intended to cause S.E.B. to commit prostitution by causing her to engage in sexual conduct in return for the $1,000 payment." Id. at 619. But wait a minute: I thought it had already been established that the reason the evidence did not support conviction for the greater offenses was that it did not show that S.E.B. herself offered to, agreed to, or engaged in sexual conduct for a fee. How can Appellant nevertheless be guilty of attempting to commit these offenses by virtue of offering to, agreeing to, or causing her to engage in sexual conduct for a fee himself? If that is all it takes to prove that S.E.B. herself committed prostitution, then I fail to see how the evidence was insufficient to convict Appellant of the greater charged offenses!
It seems to me that the evidence is fatally lacking both with respect to the charged offenses and the attempt to commit those offenses. Appellant cannot be said to have committed an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended— Tex. Penal Code § 15.01(a)—when he demonstrably lacked the specific intent to cause S.E.B.—herself— to commit prostitution by somehow causing her to knowingly offer to, agree to, or engage in, sexual conduct for a fee. The seemingly uncontradicted evidence in this case shows that Appellant knew that S.E.B. was asleep because he drugged her himself, and so he could not possibly have harbored a specific intent that she commit any of the acts necessary to constitute prostitution, much less that she have done so knowingly. He had no specific intent to commit either of the greater offenses, which both require that S.E.B. commit prostitution, because he never had any intention to cause S.E.B., herself, to knowingly offer to, agree to, or actually engage in, sexual conduct for a fee. A stout argument is thus available that Appellant can be guilty neither of the charged offenses nor the attempt to commit those offenses under the facts of this case.
The Court attempts nevertheless to declare Appellant clearly guilty of the lesser offenses by virtue of a novel application of the parties principle in Section 7.02(a)(1) of the Penal Code. Majority Opinion at 619-20 (citing Tex. Penal Code § 7.01(a)(1)). Appellant is criminally responsible for S.E.B.’s conduct for the lesser offense, the Court believes, because acting with the intent that she commit prostitution, he caused her to engage in sexual conduct for a fee. Id. But "conduct" means "an act ... and its accompanying mental state." Tex. Penal Code § 1.07(10). Arguably, then, to be guilty as a party under Section 7.02(a)(1), Appellant would still have had to cause her to knowingly engage in that conduct, which he knew at the time she could not. And, in any event, it is not clear, even to the Court, why this theory would not also render Appellant liable for the greater offense. See Majority Opinion at 619 ("Whatever implications this principle may have for the greater offenses charged in this case ... "). The uncertainties involved only serve to support my view that the answer is far from clear, and the Court should remand for briefing and an opinion from the lower court.
There may also remain a question whether Appellant could harbor a specific intent to commit the charged offenses, for purposes of reforming the judgments to show convictions for attempt, if the court of appeals majority is also correct that S.E.B. simply could not commit prostitution as a, matter of law. 4b Perhaps that is an argument that implicates the so-called doctrine of impossibility, and it might become necessary for a reviewing court implementing the Thornton criteria to decide whether the facts of this case show "legal impossibility" versus "factual impossibility"—a slippery distinction indeed. See Chen v. State, 42 S.W.3d 926, 929 (Tex. Crim. App. 2001) (observing that "the line between legal and factual impossibility is sometimes difficult to draw"); Lawhorn v. State, 898 S.W.2d 886, 891–92 (Tex. Crim. App. 1995) (plurality opinion) (distinguishing legal and factual impossibility); id. at 893 – 96 (Meyers, J., dissenting) (refusing to "accept that there is a meaningful difference between legal and factual impossibility").
III. C onclusion
My ultimate point is that none of this is nearly as straightforward as the Court’s opinion today seems to deem it. Rather than decide it in such an abbreviated fashion, without input from the parties or a "decision" on the question from the court of appeals, I would not reform the judgments without first remanding the cases to the lower court with instructions to resolve the Thornton reformation question in the first instance. Because the Court does not, I respectfully, dissent.