Ritz, Robert Francis ( 2015 )

PD-1661-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
December 21, 2015 Transmitted 12/21/2015 1:14:21 PM
Accepted 12/21/2015 2:20:37 PM
ABEL ACOSTA
NO. ___________ CLERK
IN THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
_____________________________________________________________
ROBERT FRANCIS RITZ,
PETITIONER
VS.
THE STATE OF TEXAS,
RESPONDENT
_____________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
OF THE DECISION IN THE THIRD COURT OF APPEALS
CAUSE NO. 03-14-00403-CR
_____________________________________________________________
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE: 512-477-3580
LJIR@AOL.COM
SBN: 10382944
ATTORNEY FOR PETITIONER
ORAL ARGUMENT IS RESPECTFULLY REQUESTED
TABLE OF CONTENTS
INDEX OF AUTHORITIES.....................................................................3
STATEMENT REGARDING ORAL ARGUMENT...............................5
IDENTITY OF JUDGE, PARTIES AND COUNSEL.............................6
STATEMENT OF THE CASE.................................................................7
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE....8
GROUND FOR REVIEW NUMBER ONE.............................................9
THE COURT OF APPEALS ERRED IN FINDING THAT
THE EVIDENCE WAS SUFFICIENT TO PROVE THAT
PETITIONER “TRAFFICKED” THE ALLEGED VICTIM
AS INTENDED BY THE STATUTE.
ARGUMENT..................................................................................9
GROUND FOR REVIEW NUMBER TWO............................................ 9
THE COURT OF APPEALS ERRED IN FINDING THAT
THE APPLICATION OF THE PLAIN LANGUAGE OF
V.T.C.A. PENAL CODE, SEC. 20A.01(4) DID NOT LEAD
TO AN ABSURD CONSEQUENCE THAT THE
LEGISLATURE COULD NOT HAVE INTENDED.
ARGUMENT..................................................................................9
PRAYER FOR RELIEF ...........................................................................15
CERTIFICATE OF COMPLIANCE........................................................15
CERTIFICATE OF SERVICE .................................................................16
APPENDIX...............................................................................................17
Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR,
Tex.App.-Austin, delivered November 24, 2015)
2
INDEX OF AUTHORITIES
CASES PAGES
Boykin v. State, 818 S.W.2d 782 (Tex.Cr.App. 1991) ...............................11
Delay v. State, 443 S.W.3d 909, 912 (Tex.Cr.App. 2014) .........................10
Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App. 1980)..........................11
Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR,
Tex.App.-Austin, delivered November 24, 2015) ..........................8, 9
Will. v. State, 235 S.W.3d 742, 750 (Tex.Cr.App. 2007) ....................10
STATUTES
V.T.C.A. Government Code, Sec. 311.011 ............................................... 11
V.T.C.A. Penal Code, Sec. 20A.01(4) ................................................. 10, 11
V.T.C.A. Penal Code, Sec. 20A.02.................................................. 9, 10, 11
V.T.C.A. Penal Code, Sec. 20A.02(b)(1) ................................................. 14
V.T.C.A. Penal Code, Sec. Sec. 20A.03.................................................... 10
V.T.C.A. Penal Code, Sec. 20A.03(e) ....................................................... 14
V.T.C.A.
Penal
Code,
Sec.
21.11(d).........................................................................13
V.T.C.A.
Penal
Code,
Sec.
22.011(f) .......................................................................13
V.T.C.A.
Penal
Code,
Sec.
22.021(e) ......................................................................13
3
BILL ANALYSIS
Author’s/
Sponsor's
Statement
of
Intent,
Bill
Analysis,
SB
24,
82nd
Regular
Session ................................................................................................12
COURT RULES
Tex.R.App.Proc. 66.3(b)............................................................................ 13
Tex.R.App.Proc. 66.3(c) ............................................................................ 13
Tex.R.App.Proc. 66.3(d)............................................................................ 10
Tex.R.App.Proc. 66.3(f) ............................................................................ 14
4
STATEMENT REGARDING ORAL ARGUMENT
Petitioner has raised important questions of first impression in this
Court and believes that oral argument would help clarify the issues presented
in his petition for discretionary review. Therefore he respectfully requests
oral argument.
5
IDENTITY OF JUDGE, PARTIES AND COUNSEL
Trial Judge: The Honorable Jack H. Robison, 22nd Judicial District Court
of Hays County, Texas
Parties and Counsel:
(a) the
State
of
Texas
represented
by:
Mr.
Brian
Erskine,
Asst.
District
Attorney
Mr.
Gerard
Perches,
Asst.
District
Attorney
Hays
County
Criminal
District
Attorneys
Office
712
South
Stagecoach
Trail,
Suite
2057
San
Marcos,
Texas
78666
(b) Mr.
Robert
Francis
Ritz,
represented
by:
Ms.
Barrett
Hansen
–
trial
attorney
Attorney
at
Law
P.O.
Box
429
Cedar
Creek,
Texas
78612
Ms.
S.
Lynn
Peach
–
trial
attorney
Attorney
at
Law
P.O.
Box
512
San
Marcos,
Texas
78667
Ms.
Linda
Icenhauer-­‐Ramirez
-­‐
appellate
attorney
Attorney
at
Law
1103
Nueces
Austin,
Texas
78701
6
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
NOW COMES Robert Francis Ritz, Petitioner in this cause by and
through his attorney, Linda Icenhauer-Ramirez, and, pursuant to the
provisions of Tex.R.App.Proc. 66, et seq., moves this Court to grant
discretionary review, and in support will show as follows:
STATEMENT OF THE CASE
Petitioner was indicted in this cause for one count of continuous
sexual abuse of a child and one count of continuous trafficking of persons on
March 20, 2013. (C.R. 13-14) On May 13, 2014, after hearing the evidence
and argument of both the State and the defense, the jury found Petitioner
guilty of the offense of continuous trafficking of persons. (R.R. VI, pp. 157-
158; C.R. 163-173) On May 14, 2014, after hearing the evidence and
argument from counsel, the jury assessed Petitioner’s punishment at life
imprisonment. Petitioner was sentenced that day. (R.R. VII, pp. 74-75;
C.R. 177-179)
Petitioner filed a motion for new trial on June 5, 2014. (C.R. 183-
188) Notice of appeal was filed on June 19, 2014. (C.R. 191-192) The
trial court’s certification of defendant’s right to appeal was filed on May 14,
2014. (C.R. 182)
7
STATEMENT OF THE PROCEDURAL HISTORY
On November 24, 2015, the Third Court of Appeals handed down an
opinion in this case. Ritz v. State, 2015 Tex.App. LEXIS 11994, No. 03-14-
00403-CR, Tex.App.-Austin, delivered November 24, 2015). No motion for
rehearing was filed. The petition for discretionary review is due to be filed
on or before December 24, 2015.
8
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED IN FINDING THAT THE
EVIDENCE WAS SUFFICIENT TO PROVE THAT PETITIONER
“TRAFFICKED” THE ALLEGED VICTIM AS INTENDED BY THE
STATUTE.
GROUND FOR REVIEW NUMBER TWO
THE COURT OF APPEALS ERRED IN FINDING THAT THE
APPLICATION OF THE PLAIN LANGUAGE OF V.T.C.A. PENAL
CODE, SEC. 20A.01(4) DID NOT LEAD TO AN ABSURD
CONSEQUENCE THAT THE LEGISLATURE COULD NOT HAVE
INTENDED.
In its opinion, the Third Court of Appeals found the evidence
sufficient to support Petitioner’s conviction for continuous trafficking of
persons under V.T.C.A. Penal Code, Sec. 20A.02, while acknowledging that
this cases raises serious questions:
“We agree that Ritz’s conduct, however reprehensible it may
have been, does not constitute what would ordinarily be
considered ‘human trafficking’ because there were no
allegations in this case of organized crime, prostitution or
forced labor. In addition, Ritz may be correct that the plain
language of this statute is so broad that nearly every adult who
has sex with a minor may now be prosecuted as a human
trafficker.” Ritz v. State, 2015 Tex.App.LEXIS 11994 at *6
Petitioner asserts that the Court of Appeals erred in finding the evidence
sufficient to support his conviction for continuous trafficking of persons
because the evidence merely showed that he transported the single victim a
distance of approximately eight miles for the sole purpose of engaging in
sexual acts with her. The child was not provided to other perpetrators, was
9
not prostituted out – this was one defendant engaging in illegal sexual acts
with one minor. Petitioner asserts that review in this case should be granted
because the Third Court of Appeals has misconstrued the trafficking statutes
– V.T.C.A. Penal Code, Secs. 20A.01(4), Sec. 20A.02 and Sec. 20A.03.
Tex.R.App.Proc. 66.3(d).
In Delay v. State, 443 S.W.3d 909, 912 (Tex.Cr.App. 2014), the Court
of Criminal Appeals wrote:
“ . . . sometimes appellate review of legal sufficiency involves
simply construing the reach of the applicable penal provision in
order to decide whether the evidence, even when viewed in the
light most favorable to conviction, actually establishes a
violation of the law.”
In Williams v. State, 235 S.W.3d 742, 750 (Tex.Cr.App. 2007), the Court
wrote:
“[i]f the evidence establishes precisely what the State has
alleged, but the acts that the State has alleged do not constitute
a criminal offense under the totality of the circumstances, then
that evidence, as a matter of law, cannot support a conviction.”
The Court of Appeals was correct that the evidence was sufficient to show
the acts alleged in the indictment. However, Petitioner would ask the Court
of Criminal Appeals to speak to the question of whether his conduct of
transporting the child a few miles in his personal car for the purpose of
having a sexual relationship with the victim constituted the offense of
“trafficking” as the legislature intended? Petitioner would assert that when
10
the legislature enacted the crime of “trafficking of persons” in V.T.C.A.
Penal Code, Sec. 20A.02, it did not envision a person in Petitioner’s
circumstances being prosecuted for the crime of trafficking of persons or
continuous trafficking of person.
V.T.C.A. Penal Code, Sec. 20A.01(4) defines “traffic” as follows:
“’Traffic’ means to transport, entice, recruit, harbor, provide, or
otherwise obtain another person by any means.”
Petitioner acknowledges that words should be given their common meaning
in construing legislation. V.T.C.A. Government Code, Sec. 311.011.
However, there are two exceptions to this rule. The first is when there is
ambiguous language in the statute. Boykin v. State, 818 S.W.2d 782
(Tex.Cr.App. 1991). The second is when the application of the “[s]tatute’s
plain language would lead to absurd consequences that the Legislature could
not possibly have intended, we should not apply the language literally.”
Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App. 1980). Petitioner asserts
that those two exceptions should be applied in his case.
The object of the Texas trafficking of persons law was to establish a
set of prohibitions and penalties to deal with the conduct of individuals who
participate in the modern-day slave trade.
“Human
trafficking
is
the
illegal
trade
of
human
beings
and
is
a
modern-­‐day
form
of
slavery.
Human
trafficking
is
a
criminal
enterprise
frequently
cited
as
the
second-­‐largest
11
criminal
industry
in
the
world.
In
Texas,
the
Houston
and
Dallas
Innocence
Lost
operations
run
by
the
Federal
Bureau
of
Investigation,
the
United
States
Department
of
Justice,
and
the
National
Center
for
Missing
and
Exploited
Children
successfully
rescued
more
than
109
children
from
traffickers
in
fiscal
year
2010.
.
.
S.B.
24
seeks
to
enact
legislative
changes
included
in
the
task
force
report,
such
as
creating
separate
definitions
for
sex
trafficking
and
labor
trafficking.
.
.
.
S.B.
24
amends
current
law
relating
to
the
prosecution,
punishment,
and
certain
criminal
and
civil
consequences
of
offenses
involving
or
related
to
the
trafficking
of
persons
and
to
certain
protections
for
victims
of
those
offenses.”
See
Author’s/
Sponsor's
Statement
of
Intent,
Bill
Analysis,
SB
24,
82nd
Regular
Session.
If
the
decision
of
the
Court
of
Appeals
is
allowed
to
stand
and
Petitioner’s
conviction
is
affirmed,
then
anytime
a
sexual
predator
moves
a
child
any
distance
during
the
commission
of
a
sexual
offense,
he
has
now
“trafficked”
the
child
and
can
be
prosecuted
under
the
trafficking
statutes.
Thus
if
a
person
moves
a
child
from
room
to
room,
from
bed
to
floor,
one
foot,
two
miles
–
all
could
be
construed
to
be
“trafficking”
under
the
statute.
Thus
a
person,
like
Petitioner
who
commits
the
offenses
of
aggravated
sexual
assault
of
a
child
(a
first
degree
felony
with
a
punishment
range
of
five
to
ninety-­‐nine
years
or
life),
sexual
assault
of
a
child
(a
second
degree
felony
with
a
punishment
range
of
two
to
twenty
years)
or
indecency
by
contact
(a
second
degree
felony
with
a
punishment
range
of
two
to
twenty
years)
can
now
be
12
prosecuted
under
a
scenario
where
the
punishment
range
is
raised
to
a
minimum
sentence
of
twenty-­‐five
years
and
a
maximum
of
life
imprisonment.
This
basically
nullifies
the
punishment
ranges
set
out
in
those
particular
statutes
–
aggravated
sexual
assault
(V.T.C.A.
Penal
Code,
Sec.
22.021(e)),
sexual
assault
(V.T.C.A.
Penal
Code,
Sec.
22.011(f)),
indecency
with
a
child
by
contact
(V.T.C.A.
Penal
Code,
Sec.
21.11(d)).
Petitioner
asserts
that
had
the
legislature
intended
this
absurd
result,
it
would
have
amended
the
punishment
ranges
set
out
in
those
specific
statutes.
The
Court
of
Criminal
Appeals
needs
to
speak
to
this
issue.
Tex.R.App.Proc. 66.3(c). What did the legislature intend when it wrote the
trafficking statutes?
Review should be granted because
the Third Court of
Appeals has decided an important question of state law that has not been, but
should be, settled by the Court of Criminal Appeals. Tex.R.App. Proc.
66.3(b).
If the decision of the Third Court of Appeals is left standing, this case
will have far-reaching impact. No longer will prosecutors be content to
prosecute offenders under the regular statutes that define sexual offenses
against children where punishments follow the standard punishment ranges.
Now all sexual offenses against children can be either prosecuted for
13
trafficking of persons as first degree felonies under V.T.C.A. Penal Code,
Sec. 20A.02(b)(1) or as continuous trafficking of persons with a punishment
range of twenty-five years to ninety-nine years or life under V.T.C.A. Penal
Code, Sec. 20A.03(e). Due to the far-reaching effect of this decision,
review is proper because the Third Court of Appeals has so far departed
from the accepted and usual course of judicial proceedings as to call for an
exercise of the Court of Criminal Appeals’ power of supervision.
Tex.R.App.Proc. 66.3(f). As such, review is not only proper, it is necessary.
These grounds for review should be granted.
14
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully
prays that this Honorable Court grant Appellant’s Petition for Discretionary
Review, and after full briefing on the merits, issue an opinion reversing the
decision of the Court of Appeals.
Respectfully submitted,
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE: 512-477-3580
ljir@aol.com
SBN: 10382944
ATTORNEY FOR PETITIONER
CERTIFICATE OF COMPLIANCE
I hereby certify that excluding the following: caption, identity of
parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix, this petition
for discretionary review contains 2,124 words, as calculated by the word
15
count function on my computer and is prepared in Times New Roman 14
point font.
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Petition for
Discretionary Review was e-served to the office of the State Prosecuting
Attorney and e-served to Mr. Brian Erskine of the Hays County District
Attorneys Office on this 21st day of December, 2015.
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
16
APPENDIX
Ritz v. State, 2015 Tex.App.LEXIS 11994, No. 03-14-00403-CR, Tex.App.-
Austin, delivered November 24, 2015)
17
2015 Tex. App. LEXIS 11994, *
Robert Francis Ritz, Appellant v. The State of Texas, Appellee
NO. 03-14-00403-CR
COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN
2015 Tex. App. LEXIS 11994
November 24, 2015, Filed
NOTICE: PUBLISH.
PRIOR HISTORY: [*1] FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT.
NO. CR-13-0253, HONORABLE JACK H. ROBISON, JUDGE PRESIDING.
DISPOSITION: Affirmed.
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-The evidence was sufficient to support defendant's conviction of
continuous trafficking of persons under Tex. Penal Code Ann. § 20A.03 where the victim testified
that on multiple occasions defendant drover her 20 or 25 minutes in order to have sex with her at
his home, their sexual relationship lasted more than 30 days, a friend saw her have sex with
defendant, text messages between them were of a sexual nature, and the victim was 14 years old
throughout the relationship; [2]-Even though the trial court erred by instructing the jury that
defendant would not be eligible for parole, the error was not egregious because it worked in
defendant's favor as it would, if anything, encourage the jury to decrease his sentence.
OUTCOME: Judgment affirmed.
CORE TERMS: trafficking, sexual, sentence, parole, sex, adult, continuous, eligible, enumerated,
sexual relationship, sexual assault, transported, trafficked, favorable, indecency, egregious, sexual
offenses, plain language, exploitation, transport, calendar, messages, traffic, viewing, absurd,
felony, inmate, parole law, person commits, insufficient to support
LEXISNEXIS(R) HEADNOTES
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of
Evidence
HN1 In reviewing whether the evidence is sufficient to support a conviction, an appellate court
must view the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found each essential element of the offense beyond a
reasonable doubt.
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons
Criminal Law & Procedure > Criminal Offenses > Sex Crimes > Sexual Assault > Abuse of Children
HN2 The Texas Penal Code provides that a person commits continuous trafficking of persons if,
during a period that is 30 or more days in duration, the person engages two or more times
in conduct that constitutes an offense under Tex. Penal Code Ann. § 20A.02 (trafficking of
persons) against one or more victims. Tex. Penal Code Ann. § 20A.03(a). A person
commits trafficking of persons 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 an
enumerated section of the Penal Code. Section 20A.02(a)(7). These enumerated sections
include Tex. Penal Code Ann. § 21.11 (Indecency with a Child) and Tex. Penal Code Ann. §
22.011 (Sexual Assault). Section 20A.02(a)(7)(B)—(C). The Penal Code also provides that
"traffic" means to transport, entice, recruit, harbor, provide, or otherwise obtain another
person by any means. Tex. Penal Code Ann. § 20A.01(4).
Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation
HN3 As long as a statute is constitutional, an appellate court must enforce the statute as it was
written, not as it might or even should have been written.
Criminal Law & Procedure > Appeals > Standards of Review > Plain Error > Jury Instructions
HN4 In determining whether charge error has caused egregious harm, an appellate court
considers the entirety of the jury charge itself, the evidence, including the contested issues
and weight of the probative evidence, the arguments of counsel, and any other relevant
information revealed by the record of the trial as a whole.
Criminal Law & Procedure > Jury Instructions > Particular Instructions
Criminal Law & Procedure > Postconviction Proceedings > Parole
HN5 An instruction to the jury stating that the defendant will be eligible for parole benefits the
State, not the defendant, because it could encourage the jury to assess a longer sentence
with the expectation that the defendant may not actually serve the entire sentence.
COUNSEL: For Appellant: Ms. Linda Icenhauer-Ramirez, Attorney At Law, Austin, TX.
For State: Mr. Brian Erskine, Assistant Criminal District Attorney, San Marcos, TX.
JUDGES: Before Chief Justice Rose, Justices Pemberton and Field.
OPINION BY: Scott K. Field
OPINION
A jury found appellant Robert Francis Ritz guilty of continuous trafficking of persons and assessed
punishment at life in prison. See Tex. Penal Code § 20A.03. In four points of error, Ritz contends that
the evidence was insufficient to support his conviction and that the trial court erred by incorrectly
instructing the jury that Ritz would not be eligible for parole. We will affirm the trial court's judgment
of conviction.
BACKGROUND1
FOOTNOTES
1 The facts recited herein are taken from the testimony and exhibits presented at trial.
Ritz met K.D., the complaining witness, through an online dating site. Ritz, who was 44 years old at
the time, and K.D., who was 14 at the time, eventually began meeting in person and entered into a
sexual relationship. At first, the two would have sex in Ritz's vehicle or on a blanket outside. Later,
K.D. began sneaking out of her parents' home to see Ritz. Ritz would pick K.D. up near her home,
drive her to his home, have sex with her there, and then drop her off near her home. K.D.
testified [*2] that their sexual encounters began in early fall 2012 and ended in January 2013.
While working on an online harassment case involving K.D.'s friend, police learned that K.D. was
involved in a relationship with an adult male. After extracting information from K.D.'s electronic
devices, police began the investigation of Ritz that led to his arrest. At trial, the State introduced text
messages between Ritz and K.D. which, according to the State, show that Ritz continued his
relationship with K.D. even after he learned that she was a minor. Ritz pleaded not guilty and was
convicted and sentenced, and this appeal followed.
DISCUSSION
Sufficiency of the evidence
In his first two points of error, Ritz contends that the evidence is insufficient to support his conviction
because the State failed to prove that he "trafficked" K.D. HN1 In reviewing whether the evidence is
sufficient to support a conviction, "an appellate court must view the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found each
essential element of the offense beyond a reasonable doubt." Schneider v. State, 440 S.W.3d 839, 841
(Tex. App.—Austin 2013, pet. ref'd) (mem. op.); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(plurality op.).
HN2 The Texas Penal Code provides that a person [*3] commits continuous trafficking of persons "if,
during a period that is 30 or more days in duration, the person engages two or more times in conduct
that constitutes an offense under Section 20A.02 [trafficking of persons] against one or more victims."
Tex. Penal Code § 20A.03(a). A person commits trafficking of persons "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" an enumerated section of the Penal Code. Id. § 20A.02(a)(7). These
enumerated sections include section 21.11 (Indecency with a Child) and section 22.011 (Sexual
Assault). Id. § 20A.02(a)(7)(B)—(C). The Penal Code also provides that "'[t]raffic' means to transport,
entice, recruit, harbor, provide, or otherwise obtain another person by any means." Id. § 20A.01(4).
Therefore, if Ritz transported K.D. and caused her to become the victim of indecency with a child or
sexual assault, then he committed trafficking of persons, and if he did so more than once during a
period of 30 days or more, then he committed continuous trafficking of persons as alleged in the
indictment.
At trial, K.D. testified that on multiple occasions Ritz drove her 20 or 25 minutes in order to have sex
with her at his home. She also testified concerning the duration of [*4] her sexual relationship with
Ritz, which was more than 30 days. K.D.'s friend testified that she observed K.D. and Ritz have sex
inside Ritz's vehicle. The State also presented records extracted from K.D.'s electronic devices
purporting to show text messages sent between K.D. and Ritz. These messages were of a sexual
nature and indicated that K.D. and Ritz were in a sexual relationship with one another. It is undisputed
that K.D. was 14 years old throughout her sexual relationship with Ritz. Viewing this evidence in the
light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found that
Ritz transported K.D. by driving her to his home and back, that Ritz caused K.D. to become the victim
of conduct enumerated in section 20A.02(a)(7) by engaging in sexual activities with her, including
intercourse,2 and that he engaged in this trafficking more than once in a period of 30 days or more. We
therefore conclude that there was sufficient evidence that Ritz committed continuous trafficking of
persons, as defined by statute.
FOOTNOTES
2 Viewing the evidence in the light most favorable to the verdict, Ritz caused K.D. to become the
victim of indecency with a child because he engaged in [*5] sexual contact with her. See Tex.
Penal Code § 21.11(a). He also caused K.D. to become the victim of sexual assault because,
among other things, he penetrated her sexual organ. See id. § 22.011(a)(2)(A).
In his brief, Ritz "acknowledges that viewing the evidence in the light most favorable to the verdict, the
evidence shows that [he] 'transported' the alleged victim to several places not more than 10 miles
from her home for the purpose of engaging in sexual relations with her." He contends, however, that
he did not "traffic" K.D. because the legislature could not have intended this anti-human-trafficking
statute to apply to cases like his that do not involve "the illegal trade of human beings for profit or for
sex trafficking." Ritz further argues that the application of this statute to his conduct would lead to
"absurd consequences" and would effectively increase the punishment range for all sexual offenses
involving a minor. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) ("[W]here
application of a statute's plain language would lead to absurd consequences that the Legislature could
not possibly have intended, we should not apply the language literally."). In other words, according to
Ritz, anytime an adult engages in sexual activities with a minor the adult will be subject [*6] to
prosecution for trafficking of persons because the adult will always have arguably "transport[ed],
entice[ed], recruit[ed], harbor[ed], provide[d], or otherwise obtain[ed]" the minor. See Tex. Penal
Code § 20A.01(4). The sentencing ranges for the individual offenses enumerated in section 20A.02(a)
(7) are therefore irrelevant—all of this conduct is now subsumed under trafficking of persons and is
punishable as a first-degree felony. See id. § 20A.02(b)(1) (providing that offense under 20A.02(a)(7)
is first-degree felony); id. § 20A.03(e) (providing that continuous trafficking of persons is first-degree
felony punishable by imprisonment for life or for any term of not more than 99 years or less than 25
years).
We agree that Ritz's conduct, however reprehensible it may have been, does not constitute what would
ordinarily be considered "human trafficking" because there were no allegations in this case of
organized crime, prostitution, or forced labor. In addition, Ritz may be correct that the plain language
of this statute is so broad that nearly every adult who has sex with a minor may now be prosecuted as
a human trafficker.
Nevertheless, the current language of the statute is broad, and we cannot conclude that Ritz did not
"transport" K.D. when he drove her to his home in order to have sex with her.3 HN3 As long as a
statute [*7] is constitutional (and Ritz has not challenged the constitutionality of this statute), we
must enforce the statute as it was written, not as it might or even should have been written. See
Boykin, 818 S.W.2d at 785 (courts seek to effectuate intent of legislators "because our state
constitution assigns the law making function to the Legislature while assigning the law interpreting
function to the Judiciary"); id. ("Where the statute is clear and unambiguous, the Legislature must be
understood to mean what it has expressed, and it is not for the courts to add or subtract from such a
statute.") (internal quotation marks omitted).
FOOTNOTES
3 See The Compact Oxford English Dictionary 2100 (2d ed. 1994) (defining "transport" as "To
carry, convey, or remove from one place or person to another; to convey across.").
Moreover, we do not agree with Ritz that the application of this statute to his case leads to an absurd
result that the legislature could not possibly have intended. Although the legislature may not have
foreseen or intended that Ritz's conduct would be classified as human trafficking, it is possible that the
legislature wished to significantly increase the sentences available for persons who commit sexual
crimes involving [*8] children by including all such crimes under the "trafficking" umbrella.4
Furthermore, it is possible that the legislature did intend to classify Ritz's conduct as trafficking
because it determined that removing a child from the safety of her own home and driving her miles
away to the seclusion of the defendant's home in order to sexually assault her is particularly egregious
conduct. In any event, under the plain language of the statute, the evidence is sufficient to support
Ritz's conviction.
FOOTNOTES
4 See In re B.W., 313 S.W.3d 818, 821 (Tex. 2010) ("The Legislature has passed a number of
statutes providing greater protection against sexual exploitation for underage children . . . . In
passing these statutes, the Legislature has expressed both the extreme importance of protecting
children from sexual exploitation, and the awareness that children are more vulnerable to
exploitation by others even in the absence of explicit threats or fraud."). We also note that the
legislature has distinguished between children and adults in section 20A. Section 20A.02(a)(3)
requires the offender to use "force, fraud, or coercion" when causing a trafficked adult to become
the victim of sexual conduct, but section 20A.02(a)(7), which applies to child victims, provides that
the offender may use "any means" [*9] of causing the trafficked child to become the victim of
prohibited sexual conduct. Moreover, while the sexual offenses enumerated in section 20A.02(a)(3)
all pertain to prostitution (and therefore suggest a financial motive), section 20A.02(a)(7) includes
sexual offenses that have nothing to do with commercial sex (such as indecency with a child and
sexual assault). See Tex. Penal Code § 20A.02(a)(3), (7).
Accordingly, we overrule Ritz's first two points of error.
Parole jury instruction
In his third and fourth points of error, Ritz contends that the trial court erred by failing to include the
correct instruction to the jury concerning his parole eligibility and by instead including an erroneous
jury instruction.
At the punishment phase of trial, the court instructed the jury that Ritz "will not be eligible for parole."
As the State concedes, this instruction was erroneous because Ritz may become eligible for parole. See
Tex. Gov't Code § 508.145(d)(1)—(2) (explaining that inmate serving sentence for offense under Penal
Code section 20A.03 is eligible for parole when "the inmate's actual calendar time served, without
consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is
less, but in no event is the inmate eligible for release on parole in less than two calendar
years"). [*10] However, Ritz did not object to the trial court's erroneous instruction. Therefore, we
will reverse the trial court's judgment on this ground only if we conclude that the error "caused actual,
egregious harm" to Ritz. Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); see Kuhn v.
State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd). HN4 In determining whether charge
error has caused egregious harm, we "consider the entirety of the jury charge itself, the evidence,
including the contested issues and weight of the probative evidence, the arguments of counsel, and
any other relevant information revealed by the record of the trial as a whole." Jourdan v. State, 428
S.W.3d 86, 97-98 (Tex. Crim. App. 2014) (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.
App. 2007)).
HN5 An instruction to the jury stating that the defendant will be eligible for parole benefits the State,
not the defendant, because it could encourage the jury to assess a longer sentence with the
expectation that the defendant may not actually serve the entire sentence. See Grigsby v. State, 833
S.W.2d 573, 576 (Tex. App.—Dallas 1992, pet. ref'd) ("Texas courts agree that the State, not
appellant, benefits from the parole law instructions . . . . The instruction was designed to increase jury
sentences.") (citations omitted); see also Lemmons v. State, No. 05-08-00205-CR, 2008 Tex. App.
LEXIS 9591, 2008 WL 5341043, at *5 (Tex. App.—Dallas Dec. 23, 2008, no pet.) (mem. op., not
designated for publication) ("[W]e note that the omitted parole law instruction was designed to
increase sentences juries assess and therefore [*11] benefits the State, not the defendant."). Here,
the trial court's error worked in Ritz's favor because it would, if anything, encourage the jury to
decrease Ritz's sentence. Ritz has not explained how the trial court's error harmed him. Moreover,
given the fact that the jury determined that Ritz had engaged in continuous trafficking of persons by
having sex with a child over a span of weeks and that the State had introduced evidence that Ritz
continued his relationship with K.D. even after he learned she was a minor, we cannot conclude that
the life sentence assessed by the jury was the result of the trial court's erroneous parole instruction.
We conclude that the trial court's error did not cause Ritz egregious harm, and we therefore overrule
his third and fourth points of error.
CONCLUSION
Having overruled each of Ritz's points of error, we affirm the judgment of conviction.
Scott K. Field, Justice
Before Chief Justice Rose, Justices Pemberton and Field
Affirmed
Filed: November 24, 2015
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