McDANIEL v. STATE

No. 05-16-00391-CR.

PIERRE MCDANIEL, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Fifth District, Dallas.


Attorney(s) appearing for the Case

Faith Johnson , Patricia Poppoff Noble , for State of Texas.

Niles Illich , for Pierre McDaniel, Appellant.

Before Justices Lang, Fillmore, and Schenck.


Do Not Publish. TEX. R. APP. P. 47.

MEMORANDUM OPINION

Opinion by Justice DOUGLAS S. LANG.

Pierre McDaniel appeals from his jury conviction and twenty-year court-imposed enhanced sentence for compelling prostitution. McDaniel does not dispute he compelled seventeen-year old D.W. to commit prostitution, but asserts the trial court's charge to the jury permitted a non-unanimous verdict. We disagree and, as modified, affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

D.W. testified at trial that she met McDaniel on Facebook in March 2014, and they soon began a relationship. On the night of March 25, 2014, McDaniel suggested to her she prostitute herself as a way for them to make money. Although she had never worked as a prostitute and did not know what to do, she agreed and began that night.

According to D.W., McDaniel rented a motel room and posted an ad about her on "backpage." She quickly got responses and had "around" fifteen "dates" that night. In the morning, she and McDaniel checked out of the room, went to breakfast, and briefly to her house so she could get clothes. They then returned to the motel and rented another room.

D.W. testified McDaniel posted an ad about D.W. on "backpage" that evening and the next ten evenings, until she was arrested as part of an undercover operation early on April 6, 2014. D.W. explained that each night during this period, McDaniel monitored the amount of time she spent with each "date," collected the money each "date" paid, and determined "her share" of the money. They stayed at three different hotels, and at each one, McDaniel rented and paid for the room.

I. JURY UNANIMITY

The portion of the jury charge at issue reads as follows:

[I]f you believe from the evidence beyond a reasonable doubt that [the] defendant, PIERRE MCDANIEL, on or about the 5th day of April, 2014, in the county of Dallas and state of Texas, did knowingly cause [D.W.], a person younger than 18 years of age, to commit prostitution, you will find the defendant guilty of the offense of compelling prostitution[.]

The record does not reflect McDaniel objected at trial to this portion of the charge. However, McDaniel contends because the State presented evidence of the offense being committed "on multiple but separate occasions," the trial court should have instructed the jury it had to agree on the particular occasion he committed the offense. McDaniel asserts further that, because the trial court failed to do so, he was egregiously harmed because the jury was allowed to convict him without reaching a unanimous verdict.

A. Standard of Review

Review of jury charge error begins with a determination of whether the charge contained any error. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If the appellate court determines error occurred, the court must then determine whether sufficient harm resulted from the error. See id. The degree of harm necessary for reversal is determined based on whether error was properly preserved at trial by objection or request for instruction. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). When, as here, no objection or request was made, reversal is required "`only if the error is so egregious and created such harm' that the defendant did not have a fair and impartial trial." Sakil, 287 S.W.3d at 25 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

B. Applicable Law

1. Unanimity

Texas law requires jury unanimity on the specific crime committed by the defendant. See Landrum v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). In other words, the jury "must `agree upon a single and discrete incident that would constitute the commission of the offense alleged.'" Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (quoting Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). Where the State presents evidence of the same offense being committed on multiple, but separate occasions, the jury must be instructed it must unanimously agree on the occasion the offense was committed. See id. at 772. Otherwise, the jury could return a non-unanimous verdict, with some jurors finding the defendant committed the offense on the first occasion and some jurors finding the defendant committed the offense on a subsequent occasion. See id.

2. Compelling Prostitution

A person commits the offense of compelling prostitution if he "knowingly causes, by any means, a child younger than eighteen years of age to commit prostitution, regardless of whether he knew the child's age at the time of the offense." TEX. PENAL CODE ANN. § 43.05(a) (West 2016). The child need not engage in prostitution, but only be influenced or persuaded to engage in prostitution by the defendant. See Waggoner v. State, 897 S.W.2d 510, 512-13 (Tex. App.-Austin 1995, no pet.) (quoting State v. Wood, 579 P.2d 294, 296 (Or. Ct. App. 1978)); see also Kelly v. State, 453 S.W.3d 634, 642 (Tex. App.-Waco 2015, pet. ref'd) (quoting TEX. PENAL CODE ANN. § 6.04(a)) ("A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.").

C. Application of Law to Facts

McDaniel's argument that the trial court committed charge error because the charge allowed the jury to return a non-unanimous verdict is premised on D.W.'s testimony that she briefly went home on March 26, and she and McDaniel stayed at different hotels in at least four different rooms during the twelve-day period she worked as a prostitute. McDaniel asserts the State's evidence "suggests that one offense ceased and another began as each night turned into morning or at least between March 25/26 and the bloc between March 26 and April 5/6." We disagree.

As stated, the offense of compelling prostitution occurs when the defendant knowingly causes a child younger than eighteen years of age to commit prostitution. TEX. PENAL CODE ANN. § 43.05(a). The record here reflects McDaniel suggested to D.W. on March 25 that she engage in prostitution as a way for them to make money, and D.W. agreed. Nothing in the record suggests D.W. would have engaged in prostitution, but for McDaniel. See Kelly, 453 S.W.3d at 642; Waggoner, 897 S.W.2d at 512. Moreover, no evidence was presented that D.W. stopped prostituting herself altogether during the twelve-day period or that McDaniel's influence over her had stopped. On the record before us, we conclude only one offense occurred. See Grissom v. State, 43 S.W.2d 580, 581 (Tex. Crim App. 1931) (quoting 11 Wharton's Criminal Procedure § 1410 (10th ed.) ("If the transaction is set on foot by a single impulse, and operated by an unintermittent force, it forms a continuous act[.]")); see also, e.g., Hobbs v. State, 175 S.W.3d 777, 779-80 (Tex. Crim. App. 2005) (offense of evading arrest continued until apprehension even though police officer temporarily suspended pursuit because of fatigue and unfavorable lighting and driving conditions). Accordingly, the trial court did not err in its instruction to the jury. McDaniel's sole issue is decided against him.

III. MODIFICATION OF JUDGMENT

The judgment incorrectly reflects a plea by McDaniel and trial court finding of "true" to the second enhancement paragraph when only one enhancement paragraph was alleged. The judgment also incorrectly reflects "N/A" as McDaniel's plea and the trial court's finding to the first enhancement paragraph when the record reflects both should be "true."

An appellate court has authority to modify a judgment to speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Therefore, we modify the judgment to reflect McDaniel's plea and the trial court's finding to the first enhancement paragraph as "true." We further modify the judgment to reflect McDaniel's plea and the trial court's finding to the second enhancement paragraph as "N/A."

IV. CONCLUSION

Having decided McDaniel's sole issue against him, we affirm the trial court's judgment as modified.

JUDGMENT

Based on the Court's opinion of this date, we MODIFY the trial court's judgment to reflect appellant's plea, and the trial court's finding to, the first enhancement paragraph as "true." We further MODIFY the trial court's judgment to reflect appellant's plea, and the trial court's finding to, the second enhancement paragraph as "N/A."

As MODIFIED, we AFFIRM the judgment.


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