Poor v. State

695 S.W.3d 32

Timothy Duane POOR, Appellant

v.The STATE of Texas, Appellee

No. 11-22-00221-CR

Court of Appeals of Texas, Eastland.

Opinion filed July 18, 2024

On Appeal from the 238th District Court, Midland County, Texas, Trial Court Cause No. CR56919, Elizabeth Leonard, Judge

Brittany Carroll Lacayo, Lacayo Law Firm, PLLC, 212 Stratford St., Houston, TX 77006, for appellant

Laura Nodolf, District Attorney, Eric Kalenak, Assistant, District Attorney’s Office, 500 North Loraine St., Suite 200, Midland, TX 79701, for appellee

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. BRUCE WILLIAMS, JUSTICE

Appellant, Timothy Duane Poor, challenges his convictions for continuous sexual abuse of a young child and compelling prostitution, both first-degree felonies. See Tex. Penal Code Ann. §§ 21.02(b), (h), 43.05(a)(2), (b) (West Supp. 2023). A jury convicted Appellant of both offenses and sentenced him to thirty-five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice for the continuous-sexual-abuse conviction, and five years’ imprisonment for the compelling-prostitution conviction.

Appellant challenges his convictions in five issues on appeal: (1) the trial court abused its discretion by denying his motion for new trial; (2) the trial court abused its discretion by failing to hold an evidentiary hearing on the issues raised in the motion for new trial; (3) his trial counsel was ineffective; (4) the trial court erred in excluding evidence of a witness’s pending criminal charge; and (5) the trial court’s charge included erroneous language.

We previously sustained Appellant’s second issue, abated this appeal, and remanded the cause to the trial court to conduct an evidentiary hearing on Appellant’s motion for new trial. In our abatement order, we ordered the trial court to determine whether the State failed to disclose evidence in violation of Article 39.14 of the Texas Code of Criminal Procedure, and whether Appellant received ineffective assistance of counsel. The trial court held a hearing on January 24, 2024, and denied Appellant’s motion for new trial. We reinstated the case after receiving the supplemental reporter’s record and the supplemental clerk’s record, and now address Appellant’s four remaining issues. We affirm.

Factual and Procedural History¹

Appellant was charged with compelling prostitution and continuous sexual abuse of K.F.,² his stepdaughter, who was twelve years old at the time of trial. L.B. married Appellant when L.B.’s daughter, K.F., was four or five years old. In 2013, Appellant and L.B. had a son, R.P. Their tumultuous relationship, which included domestic violence and involvement by the Texas Department of Family and Protective Services ("the Department" or "TDFPS"),³ ended approximately eleven years later. The Department removed K.F. and R.P. in early 2019 but returned them to L.B. in late 2019 or early 2020. In 2021, L.B. and Appellant recommenced cohabitation as a family.

On April 26, 2021, L.B. found over twenty dollars hidden in K.F.’s room. When L.B. confronted K.F., K.F. eventually revealed that Appellant gave it to her for performing oral sex on him while L.B. was at work several days prior. L.B. called her mother, T.B., and took the children to T.B.’s home. T.B., L.B., and K.F. "had a talk" that evening, during which K.F. told them that, "more than once," Appellant "had [K.F.] put her mouth over his penis," and "put his private into her." K.F. remembered that it started in 2019, when she was just nine years old, and that "it had been going on for a while." According to K.F., Appellant would "bribe" her to engage in sexual acts by giving her money, toys, and other items, such as a piano.

At trial, the State presented five witnesses: L.B., T.B., K.F., the forensic interviewer who interviewed K.F., and the nurse who performed K.F.’s sexual assault examination. Appellant testified in his defense and called five additional witnesses. The jury found Appellant guilty of continuous sexual abuse of a child and compelling prostitution.

Appellant filed a motion for new trial alleging that the State had withheld material TDFPS records, and that he was denied effective assistance of counsel. In support of his motion, he attached the unsworn declaration of Sara Spector, one of his two trial attorneys.

On remand at the hearing on Appellant’s motion for new trial, Appellant called three witnesses: Lacey Holloman, the prosecutor at trial, and Appellant’s two trial attorneys, David Phillips and Sara Spector. The trial court denied Appellant’s motion.

Discussion

I. Charge Error

Because the resolution of Appellant’s first and third issues are partially contingent upon whether there was error in the trial court’s charge, we will address Appellant’s fifth issue first. In Appellant’s fifth issue, he asserts that the trial court’s charge impermissibly allowed a finding of guilt for continuous sexual abuse of a child, regardless of whether the alleged sexual acts occurred at least thirty days apart.

A. Standard of Review

[1, 2] Reviewing claims of charge error is a two-step process. Campbell v. State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). First, we must determine whether error exists. Id. Second, if there is error, we must decide whether the appellant was harmed and if the harm is sufficient to warrant reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex. Crim. App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013)); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet. ref'd). The applicable standard of review to be utilized for charge error depends on whether the claimed error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020).

[3–6] The purpose of the trial court’s charge "is to inform the jury of the applicable law and guide them in its application to the case." Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have the trial court provide the jury with instructions that correctly set forth the "law applicable to the case." Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (quoting Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007)). Because the trial court is obligated to correctly instruct the jury on the law applicable to the case, it is ultimately responsible for the accuracy of its charge and the accompanying instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial court errs, and the error is subject to the appropriate harm analysis. See Bell, 635 S.W.3d at 645.

B. Split Among Intermediate Appellate Courts

Appellant cites Turner v. State, 573 S.W.3d 455 (Tex. App.—Amarillo 2019, no pet.) to support the proposition that the charge erroneously permitted the jury to convict him of continuous sexual abuse of a child if it found that Appellant committed two or more acts within a thirty-day period, rather than at least thirty days apart. In Turner, the Seventh Court of Appeals criticized the language in Section 21.02 of the Penal Code in holding that the charge at issue was erroneous:

[T]he State’s argument relies too heavily upon the assumption that the statute itself is an example of clarity. Broken down into its component parts, the application paragraph used in this case does nothing more than … require[e] that (1) during a given period of thirty days or more (2) the defendant intentionally or knowingly committed two or more acts of sexual abuse. While someone with an understanding of the statute might argue that this provision is clear, the express language used does not make it clear that the first and last acts must occur thirty or more days apart.

573 S.W.3d at 462.

The Sixth Court of Appeals aligns with the Seventh Court of Appeals in holding that the express language of the statute does not make clear that the first and last acts must occur thirty or more days apart. See Lewis v. State, No. 06-21-00021-CR, 2022 WL 630288, at *6 (Tex. App.—Texarkana Mar. 4, 2022, pet. ref'd) (mem. op., not designated for publication) ("[T]he jury could have easily read the instruction as directing it to find Lewis guilty if (1) there were thirty or more days between the dates in the indictment … and (2) during that time, Lewis sexually abused A.B. on two or more occasions."). In both Lewis and Turner, however, the courts found that the appellants were not egregiously harmed by the charge error.⁴ Lewis, 2022 WL 630288, at *6; Turner, 573 S.W.3d at 464. The First Court of Appeals in Smith v. State, 340 S.W.3d 41, 50–53 (Tex. App.—Houston [1st Dist.] 2011, no pet.) held that the language of "on or about the 1st day of December, 2007, through the 1st day of September, 2008, which said time period being a period that was 30 days or more in duration" although erroneous, did not result in the appellant being egregiously harmed.⁵

By contrast, the Third, Fourth, Fifth, Thirteenth, and Fourteenth Courts of Appeals have refused to find similar jury instructions erroneous. See Jones v. State, No. 05-22-00872-CR, 2024 WL 1757249, at *13–14 (Tex. App.—Dallas Apr. 24, 2024, no pet. h.) (mem. op., not designated for publication); Perez v. State, 689 S.W.3d 369 (Tex. App.—Corpus Christi–Edinburg Feb. 22, 2024, no pet.) (mem. op., not designated for publication); Lewis v. State, No. 14-21-00691-CR, 2023 WL 4873306, at *5–8 (Tex. App.—Houston [14th Dist.] Aug. 1, 2023, pet. ref'd); Hernandez-Silva v. State, No. 03-19-00219-CR, 2020 WL 4726632, at *7–8 (Tex. App.—Austin Aug. 14, 2020, pet. ref'd) (mem. op., not designated for publication); McKinney v. State, No. 05-14-01350-CR, 2016 WL 3963369, at *16 (Tex. App.—Dallas July 18, 2016, pet. ref'd) (mem. op., not designated for publication); ...