Stephan Andrew Cox v. State , 497 S.W.3d 42 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00399-CR
STEPHAN ANDREW COX APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1325641D
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OPINION
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In five points, Appellant Stephan Andrew Cox appeals his convictions for
aggravated kidnapping and sexual assault of a child. We affirm.
Facts and Background
Cox was twenty-six years old and living in Columbus, Ohio when he first
connected with Zoe,1 a 14-year-old girl2 living in Haltom City, via the social
messaging application known as Kik Messenger. Cox initiated the contact with
Zoe, and they talked about Zoe’s life and her family. According to Zoe, he was
nice to her at the beginning and told her she was pretty. Zoe testified that at
some point he asked her to send suggestive pictures of herself to him, and she
did.3 Eventually he asked for her phone number, Zoe provided it, and they began
communicating through text messages.
After a while, Cox suggested they should run away to Colombia together.
According to Zoe, after first directing her to model some clothing for his approval,
Cox then instructed her to pack a bag. They agreed to meet on the street
outside of her middle school on April 24, a plan Cox told Zoe not to share with
anyone else.4
1
In accordance with rule of appellate procedure 9.8, we refer to children
and family members by pseudonyms. Tex. R. App. P. 9.8 cmt.
2
Zoe was sixteen at the time of trial.
3
Zoe later equivocated, testifying that she did not recall if she had sent him
any suggestive pictures, but “it [was] a possibility.”
4
Zoe told sexual assault nurse examiner Maureen Edwards and the jury at
trial that she was afraid because Cox threatened to hurt her family if she did not
run away with him.
2
Complying with his instructions, Zoe did not tell her parents about Cox or
their plans to run away to Colombia together, and on April 24, Zoe went to school
as usual and took the STAAR test. When school was over, she met Cox outside
the campus. Once they were together, Cox gave Zoe various other instructions,
including that she should act like she was his little sister, avoid talking, and walk
behind him so that it wouldn’t look like they were walking together. According to
Zoe, at some point she forgot to act like his little sister, and this made Cox mad.
Zoe added that Cox was “always mad” and when he was mad, he was mean.
From school, they took a city bus to the Greyhound terminal in Fort Worth.
While on the city bus, Cox took possession of Zoe’s cell phone. Zoe testified that
Cox had already purchased the bus tickets and that at this point she did not know
where the bus would be taking them. They waited for more than an hour for their
bus to arrive, during which time Zoe went to the ladies’ restroom once
unattended and Cox went to the men’s restroom, again leaving Zoe unattended.
After the two had boarded the Greyhound bus and were en route to El
Paso, Cox destroyed Zoe’s cell phone. Zoe testified that this frightened her
because she realized at that point that she had lost the ability to contact her
family.5
Zoe testified that she did not have any of her family members’ phone
5
numbers memorized. Nor did she bring any money with her on this trip.
3
Zoe testified that she became increasingly afraid as they continued toward
El Paso. According to Zoe, while they were on the Greyhound bus, Cox forced
Zoe to perform oral sex on him.6
When Cox and Zoe arrived in El Paso, they checked into a hotel room.
Zoe testified that nothing sexual took place between them in the El Paso hotel
room, but it was at that point that she realized she had gotten in over her head.
According to Zoe, once they arrived in El Paso, Cox stayed with her at all times
and did not allow her to leave the hotel room without him. When they did leave
the hotel room, they went to the library, where Cox used the internet to look for a
vehicle and a place to stay.
Eventually, Cox and Zoe walked across a bridge and into Juarez, Mexico.
Once in Mexico, they checked into a hotel near the border, and at that point
whenever Cox would leave the hotel room, he would lock the door so that Zoe
could not leave. Zoe testified that this frightened her because she “never really
knew what he was going to do when he came back.” Zoe also testified that once
they arrived in Mexico, she did not eat because Cox did not provide her with any
food. Against her wishes, he also cut her hair. According to Zoe, at one point
6
In response to questioning about why she did not yell aloud or take other
action at this point to stop him, Zoe replied that he was “mean.”
4
she tried to run away from the hotel through an open door, but Cox grabbed her
and hit her on her face and on her buttocks.7
While in the hotel room in Juarez, Cox and Zoe twice engaged in sexual
intercourse. Zoe testified that he forced himself upon her but that she did not
protest while it was occurring because she was “in shock.” According to Zoe,
Cox did not wear a condom even though he had purchased some. Zoe
described it as painful and testified that she was scared to be with him
afterwards.
During their journey, the North Richland Hills police had been monitoring
Cox’s and Zoe’s cell phone activity and had tracked their movements from her
school in Haltom City to the Fort Worth Greyhound bus station and on to El Paso.
On May 1, however, the police stopped receiving any pings 8 on Cox’s phone.
Nevertheless, they were still able to receive outgoing phone call information that
indicated that he had crossed the border into Mexico. The North Richland Hills
police contacted the Texas Rangers, who, in turn, contacted the Mexican police,
to assist in finding Zoe.
7
The two did leave the hotel room together at one point in order to obtain
matching tattoos. Each received a tattoo with half of a flaming broken heart—
hers with the letters “L-O,” and his with the letters “V-E” inscribed across the
middle—on their upper arms.
8
The police were able to track Cox’s cell phone by tracking which cell
phone transmittal towers the phone had “pinged” or been utilized while the pair
was traveling.
5
On May 2, eight days after the Greyhound bus carrying Cox and Zoe had
left for El Paso, the Mexican police notified the North Richland Hills police that
they had located Zoe and Cox at a hotel in Juarez. When the Mexican
authorities arrived at the hotel, Cox refused to open the door, so the police broke
through it and immediately separated Cox and Zoe. The Mexican authorities
then took Zoe to a doctor, who performed a vaginal examination and
administered medicine to her.9 After that, Texas Ranger Kevin Wright retrieved
Zoe and drove her back to El Paso.
The next morning, Zoe was flown to Tarrant County and taken directly to
Cook Children’s Hospital, where a second examination was performed by
Edwards, who later testified at trial. Edwards took photographs of Zoe, including
photos that showed a hickey on her chest, a bruise on her thigh, and the tattoo
on her upper arm. She also obtained swabs of Zoe’s vaginal area and mouth.10
Edwards described Zoe as “hostile” when questioned, sometimes answering her
questions and sometimes not.
After the exam at Cook’s, Zoe was interviewed by Carrie Paschall, a
forensic examiner at Alliance for Children. In that interview, Zoe denied that Cox
9
Zoe testified that she did not know what the medicine was for and did not
really know what was going on during the examination.
10
Edwards could not obtain swabs of Zoe’s cervix because Zoe refused a
speculum examination. Edwards explained that due to the time that had passed
since the last sexual assault that took place, the cervix is where any semen
would most likely have been found.
6
had told her not to tell her parents about their plan to go to Mexico. Instead,
according to Paschall, Zoe related that she had told Cox she wanted to run away
with him because her parents fought. But Paschall also testified that during the
interview, Zoe said that Cox had threatened both her and her family.
After the examination and interview, Zoe was reunited with her parents. At
that point, according to Zoe, she was happy to be home, and at trial she admitted
that she had made some “bad decisions” and expressed regret for going with
Cox.
At the conclusion of a week-long jury trial, Cox was found guilty of
aggravated kidnapping and two counts of sexual assault. He was sentenced to
fifty years’ imprisonment on the charge of aggravated kidnapping, ten years’
imprisonment on the first count of sexual assault of a child, and fifteen years’
imprisonment on the second count of sexual assault of a child.
Discussion
A. Evidence of Restraint
In his first point of error, Cox argues that the evidence is insufficient to
support the conviction for aggravated kidnapping because there is no evidence
that he restrained Zoe.
i. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
7
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
ii. Application
To show that Cox committed the aggravated kidnapping of Zoe, the State
had to prove that he intentionally or knowingly abducted her with the intent to
8
violate or abuse her sexually. Tex. Penal Code Ann. § 20.04(a) (West 2011).
According to section 20.01(2) of the penal code, “abduct” means “to restrain a
person with intent to prevent his liberation by: (A) secreting or holding him in a
place where he is not likely to be found; or (B) using or threatening to use deadly
force.” Tex. Penal Code Ann. § 20.01(2) (West 2011).
The penal code defines restraint as “restrict[ing] a person’s movements
without consent, so as to interfere substantially with the person’s liberty, by
moving the person from one place to another or by confining the person.” Tex.
Penal Code Ann. § 20.01(1). When the kidnapped person is fourteen years old,
as Zoe was at the time, the restraint is “without consent” if she is taken outside of
the state and outside a 120-mile radius of her residence without the consent of
her parents. Tex. Penal Code Ann. § 20.01(1)(B)(ii).
Cox argues that the State failed to prove he restrained Zoe so as to
substantially interfere with her liberty. In so arguing, he relies on evidence that
Zoe acted willingly in meeting Cox and in going with him to Mexico, that she
appeared “casual” and unrestrained in surveillance videos from the bus stations
and gas station, and that she failed to take advantage of numerous opportunities
to escape him or seek help from other travelers or authorities—especially when
she acted as a Spanish translator to agents at the Mexican border. 11 Cox is
11
Cox did not speak Spanish, so Zoe translated when they spoke to the
agents at the border. According to Zoe, it was a short conversation—the border
agent examined Cox’s bag and asked Zoe if Cox was planning to sell his clothes
in Mexico, and Zoe answered, “No.”
9
correct that there is ample evidence in this record that Zoe was not confined
against her will, such that the jury may have weighed that evidence in favor of an
acquittal. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at
170. However, the evidence is conflicting. And as there is also sufficient
evidence to the contrary that he did restrain her against her will, we must
presume that the factfinder resolved any conflicting inferences in favor of the
verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Dobbs, 434 S.W.3d at 170.
The penal code defines neither the term “confine” nor “confining,” and
terms that are not defined in a statute are to be given their plain and ordinary
meaning. See Courtemanche v. State, 507 S.W.2d 545, 546 (Tex. Crim. App.
1974). Webster’s defines the verb “confine” to mean “to hold within bounds,” “to
restrain from exceeding boundaries,” or “to keep in narrow quarters: imprison.”
Webster’s Third New International Dictionary 476 (2002); see also Holmes v.
State, 873 S.W.2d 123, 126 (Tex. App.—Fort Worth 1994, no pet.) (defining
“confine” as “to shut up, imprison, immure, put or keep in detention, to relegate to
certain limits”). Cox acknowledges in his brief that there is no time requirement
for determining whether a restraint has taken place. Hines v. State, 75 S.W.3d
444, 447–48 (Tex. Crim. App. 2002). Likewise, there is “no minimal requirement
for restraint other than the interference with the victim’s liberty [to] be
substantial.” Rogers v. State, 687 S.W.2d 337, 342 (Tex. Crim. App. 1985)
10
(quoting Rodriguez v. State, 646 S.W.2d 524, 527 (Tex. App.—Houston [1st
Dist.] 1982, no pet.)).
We must examine the evidence in the light most favorable to the jury’s
verdict, and whether Cox’s interference with Zoe’s liberty was substantial or slight
was a question for the jury. See Hines, 75 S.W.3d at 448 (“It is up to the jury to
distinguish between those situations in which a substantial interference with the
victim’s liberty has taken place and those situations in which a slight interference
has taken place.”). To do so, the jury is to look at all of the circumstances
surrounding the offense. Id. Cox argues that no rational juror could find that Zoe
was restrained, but we do not agree.
Zoe described Cox as mean and “always mad.” She testified on more than
one occasion that he frightened her. She confirmed at trial that Cox threatened
to hurt her family if she did not go to Colombia with him. Cox further deprived
Zoe of virtual access to friends, family, and emergency personnel when, at the
outset of the journey, he took possession of her cell phone and later destroyed it.
Cox argues that this evidence can only be considered as evidence of
consent, not restraint, relying on the penal code’s definition of “restraint” as being
accomplished “without consent” if done by “force, intimidation, or deception.”
Tex. Penal Code Ann. § 20.01(1)(A). But this interpretation attempts to read the
statute in piecemeal, rather than in a cohesive manner. The statute defines
“restraint” as occurring by “any means, including acquiescence” of a 14-year-old
victim when the victim is taken out of the state. Tex. Penal Code Ann. §
11
20.01(1)(B)(ii); see also Walker v. State, No. 13-01-00568-CR, 2002 WL
34230963, at *3 (Tex. App.—Corpus Christi Aug. 8, 2002, no pet.) (not
designated for publication) (noting that to prove restraint, defendant accused of
kidnapping “need only have restricted the child’s movement by ‘any means,
including acquiescence of the victim’ in order to constitute restraint”) (quoting
Tex. Penal Code Ann. § 20.01(1)(B)(i)); Buggs v. State, Nos. 05-07-00676-CR,
05-07-00677-CR, 05-07-00749-CR, 2008 WL 541892, at *6 (Tex. App.—Dallas
Feb. 29, 2008, pet. ref’d) (not designated for publication) (upholding conviction
for aggravated kidnapping even though victim could have attempted to escape
but did not because she was afraid defendant would kill her).
The jury was presented with evidence that Cox intimidated Zoe through
threats and displays of anger. The jury could have reasonably found that these
intimidation tactics effectively prevented Zoe from voluntarily extricating herself
from his dominion. The jury could also have found that the use of intimidation to
move her from her home in Tarrant County to unfamiliar locations, including El
Paso and Juarez, Mexico, worked to substantially interfere with her liberty by
effectively depriving her of viable opportunities to escape his presence.
Having concluded there was sufficient evidence to support the jury’s
finding that Cox kidnapped Zoe, we overrule Cox’s first point.
B. Territorial Jurisdiction over Sexual Assault Committed in Mexico
From his home in Ohio, Cox used a popular social messaging application
on his phone to prey upon Zoe, a 14-year-old Texas girl. He cultivated an
12
inappropriate and abusive relationship with her, threatening to hurt her and her
family if she did not agree to run away with him to Colombia. He then traveled a
thousand miles to Tarrant County, Texas, to meet up with her at her middle
school and escort her to a bus station, while he demanded that she not talk and
that she pretend to be his sister to avoid any suspicion. He took from her the
only means of communication she had—her cell phone—thus isolating her from
her social support network, her family members, and her peers. Cox’s subjective
awareness of the wrongful and criminal nature of his conduct is evidenced by
these steps he took to ensure that the true nature of their relationship was
concealed from persons who might observe them on their 600-mile journey
across Texas to Mexico. Once across the international border, Cox locked Zoe
in a hotel room12, deprived her of food, and sexually assaulted her. Cox now
12
The infamous Triangle Shirtwaist Factory fire of 1911 resulted in a
nationwide push toward adopting and enforcing strict building codes to prevent
the locking of egress doors necessary for occupants in exiting buildings during a
fire and other emergencies. See ASSA ABLOY, Codes and Compliance:
Demystifying the Door Opening 10 (2014). Due to the success of this effort, it is
highly unlikely that a person could be locked into a hotel room located in the
United States. However, such fire and emergency codes have not necessarily
been adopted in other countries, or if adopted are not necessarily enforced to the
extent they are in the United States. So, although it may be a foreign concept to
Americans, it is possible that the hotel room in Juarez, Mexico, could have been
locked from the outside, thus preventing Zoe from opening the door from the
inside. See Kevin Coffey, Hotel Safety Tips for Travelers, Corporate Travel
Safety, http://www.kevincoffey.com/hotel/hotel_safety.htm (last viewed May 6,
2016) (cautioning that some hotels in other countries still have locks requiring
keys in order to lock or unlock the room from the inside). At any rate, there is no
controverting evidence in this record challenging or impeaching Zoe’s testimony
on this point.
13
argues in his second issue that the State of Texas does not have jurisdiction over
that sexual assault because it occurred in a Juarez hotel room rather than within
the boundaries of the state from which she was abducted and transported.13
The State concedes that jurisdiction does not exist under section
1.04(a)(1) of the penal code14 and instead argues that it exists under subsection
(a)(4) because Cox’s conduct in Tarrant County was preparatory and in aid of the
sexual assault committed in Juarez. Tex. Penal Code Ann. § 1.04(a)(1), (4)
(West 2011). These preparatory acts, the State argues, make him “criminally
responsible” for the sexual assault in Mexico. Unfortunately, the State does not
13
The indictment does not specify where this sexual assault occurred;
however, the State does not dispute that the evidence established it took place in
Juarez.
14
The cases finding jurisdiction under section 1.04(a)(1) do so because an
element of the offense occurred on Texas soil. See, e.g., Rodriguez v. State,
146 S.W.3d 674, 676–77 (Tex. Crim. App. 2004) (holding that Texas had
territorial jurisdiction over capital murder prosecution because the aggravating
factor of kidnapping took place in Texas and was an element of the offense of
capital murder); Yates v. State, 370 S.W.3d 772, 773–75 (Tex. App.—Texarkana
2012, pet. ref’d) (holding that Texas had jurisdiction over an aggravated sexual
assault that took place in Arkansas where defendant’s use or exhibition of a
deadly weapon took place in Texas when he threatened to kill her if she did not
get into his truck); Latimer v. Quarterman, No. 4:08-CV-072-A, 2009 WL
1074802, at *6 (N.D. Tex. Apr. 17, 2009) (denying federal habeas corpus petition
where state trial court had found it had territorial jurisdiction under a straight
murder theory “because the acts of applying the duct tape and placing [the
victim] in the trunk occurred in Texas”). But here no element of the offense at
issue—sexual assault of a child—occurred on Texas soil.
14
provide, and we have not found, any cases directly addressing facts such as
these where a Texas court has found jurisdiction under section 1.04(a)(4).15
Section 1.04(a)(4) provides that the trial court has jurisdiction over an
offense that a person commits if “the conduct inside this state constitutes an
attempt, solicitation, or conspiracy to commit, or establishes criminal
responsibility for the commission of, an offense in another jurisdiction that is also
an offense under the laws of this state.” Tex. Penal Code Ann. § 1.04(a)(1), (4).
Here, because the evidence does not support a finding—nor does the State
argue—that Cox’s actions committed in Texas constituted an attempt, a
solicitation, or a conspiracy to commit the sexual assault in Mexico, the only
theory under which the plain language of section 1.04(a)(4) could be invoked to
acquire jurisdiction would require that Cox’s conduct established “criminal
responsibility for the commission of an offense in [Mexico] that is also an offense
[in Texas].” Tex. Penal Code Ann. § 1.04(a)(4).
15
Other federal and state courts have held jurisdiction existed over crimes
committed across state borders. See, e.g., Heath v. Jones, 941 F.2d 1126,
1138–39 (11th Cir. 1991) (holding jurisdiction existed over capital murder of
woman in Georgia where the aggravating factor of kidnapping took place in
Alabama); State v. Yegan, 221 P.3d 1027, 1029–30 (Ariz. Ct. App. 2009)
(holding that Arizona had jurisdiction over defendant’s solicitation of sexual
conduct with a minor through chat room conversations while he was located in
California); State v. Kelly, 624 N.E.2d 733, 736 (Ohio Ct. App. 1993) (holding
Ohio had jurisdiction over rape that occurred in Tennessee where there was a
“continuous, unbroken sequence of events” beginning with defendant’s abduction
of the victim in Ohio”); State v. Shrum, 455 N.E.2d 531, 531 (Ohio Ct. App. 1982)
(holding that Ohio had jurisdiction over rape committed in Kentucky where the
element of force—kidnapping—occurred in Ohio).
15
A thorough examination of the entire record in this case reveals no
evidence that the sexual conduct that occurred between Cox and Zoe in the
Juarez hotel room constituted a crime in the city of Juarez, the state of
Chihuahua, or the nation of Mexico. The trial court was not asked to take judicial
notice of any foreign law and did not take judicial notice of foreign law, nor have
we been asked to take judicial notice of foreign law on appeal. Because there is
no evidence that the sexual assault that occurred in the hotel room in Juarez
constituted a crime in Juarez, section 1.04(a)(4) does not provide a basis for
Texas to assert jurisdiction over the crime.16
But the inquiry need not stop there. Even if neither section 1.04(a)(1) nor
section 1.04(a)(4) provide the basis, we believe Texas may still properly assert
jurisdiction under these circumstances.
Section 3.01 of the penal code provides,
In this chapter, “criminal episode” means the commission of
two or more offenses, regardless of whether the harm is directed
toward or inflicted upon more than one person or item of property,
under the following circumstances:
16
While the State argues that the kidnapping was “preparatory” and “in aid
of” the sexual assault committed in Juarez, this is not the standard for criminal
responsibility. “A person is criminally responsible if the result would not have
occurred but for his conduct[.]” Tex. Penal Code Ann. § 6.04(a). Zoe may not
have been sexually assaulted in Mexico but for Cox’s kidnapping of her in Texas,
but this relates to the location of the sexual assault, not the elements of the crime
of sexual assault. The State has not provided, and we have not found, any
Texas law supporting its argument that jurisdiction under section 1.04(a)(4)
would attach when so-called “preparatory” steps were taken inside Texas for a
crime committed outside the border of Texas.
16
(1) the offenses are committed pursuant to the same
transaction or pursuant to two or more transactions that are
connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or
similar offenses.
Tex. Penal Code Ann. § 3.01 (West 2011).
The first sexual assault occurred somewhere in Texas during the bus trip
to Mexico. That assault marked the beginning of the criminal episode comprised
of sexual assaults by Cox against Zoe. Cox was charged with the offense of
kidnapping for the purpose of committing sexual assault. And although he was
not charged with aggravated sexual assault,17 a “criminal episode” for purposes
of sexual assault begins when the attacker in any way restricts the complainant’s
freedom of movement, and it ends with the final release or escape of the victim
from the attacker's control. Burns v. State, 728 S.W.2d 114, 116 (Tex. App.—
Houston [14th Dist.] 1987, pet. ref’d). State courts of Texas have jurisdiction
over the prosecution for aggravated sexual assault where the criminal episode
forming the basis of charges began within this state. Yates v. State, 370 S.W.3d
772, 774–75 (Tex.App.—Texarkana 2012, pet. ref’d). Neither side has pointed
us to, nor have we found, any authority that would mandate that an element of
the extraterritorial crime, in this case sexual assault, take place in Texas in order
17
The State concedes that if it had charged Cox with aggravated sexual
assault, jurisdiction would clearly lie under § 1.04(a) and the Rodriguez line of
cases because the aggravating factor, the kidnapping, took place in Texas. Tex.
Penal Code Ann. § 1.04(a); Rodriguez, 146 S.W.3d at 677. We agree.
17
for Texas to have jurisdiction over the crimes committed as part of one criminal
episode. We believe that the plain language of Section 3.01 conferred
jurisdiction to the trial court in Texas of the sexual assault that took place in
Juarez because it was part of the entire criminal episode beginning with the
kidnapping in Tarrant County and the sexual assault on the bus en route to El
Paso and culminating with the sexual assault in Jaurez.
Alternatively, the Texas legislature has expressed its intent to exercise
extraterritorial jurisdiction over criminal conduct involving sexual assault of a
child18 through article 13.075, which provides:
An offense under Title 5, Penal Code,[19] involving a victim
younger than 18 years of age, . . . that results in bodily injury to a
child younger than 18 years of age, may be prosecuted in the
county:
18
More than 150 years ago, the United States Supreme Court first
recognized the power of the states to prosecute crimes occurring outside their
territorial jurisdictions. Holmes v. Jennison, 39 U.S. 540, 568–69 (1840)
(“Undoubtedly, [the states] may remove from among them any person guilty of,
or charged with crimes; and may arrest and imprison them in order to effect this
object. . . . They may, if they think proper, in order to deter offenders in other
countries from coming among them, make crimes committed elsewhere
punishable in their Courts[.]” (emphasis added)). With regard to crimes such as
assault, larceny, or fraud, however, the Supreme Court has cautioned that in
order to acquire extraterritorial jurisdiction, the jurisdiction seeking to acquire it
must statutorily express its desire to do so. United States v. Bowman, 260 U.S.
94, 97–98 (1922) (“If punishment of them is to be extended to include those
committed outside the strict territorial jurisdiction, it is natural for Congress to say
so in the statute, and failure to do so will negative the purpose of Congress in this
regard.”). Thus, we look to Texas statutes for expressed intent to exercise
extraterritorial jurisdiction over criminal conduct involving sexual assault of a
child.
19
The offense of sexual assault of a child is included in Title 5 of the penal
code. See Tex. Penal Code Ann. § 22.011(a)(2) (West 2011).
18
(1) in which an element of the offense was committed;
(2) in which the defendant is apprehended;
(3) in which the victim resides; or
(4) in which the defendant resides.
Tex. Code Crim. Proc. Ann. art. 13.075 (West 2015).
As with Article 13.01, this provision falls under a general heading of
“Venue.” However, article 13.075 has never been interpreted to be solely related
to venue. Nor is the actual language of article 13.075 so restricted. On its face,
notwithstanding where the sexual assault of a child occurs, the accused may be
prosecuted in the county of the victim’s residence, as long as the crime resulted
in bodily injury to the child.
The evidence established that Zoe resided in Tarrant County, Texas. The
evidence also supports that Cox caused bodily injury to Zoe by grabbing her and
hitting her on the face and the buttocks prior to forcing unprotected sexual
intercourse upon her. Furthermore, Zoe testified that the sexual intercourse was
painful and it frightened her.
And although the introductory phrase for article 13.075 is entitled “Child
Injured In One County And Residing In Another,” the legislative history of this
statute clearly indicates that it was enacted with a broader purpose in mind.
Article 13.075 was passed in 2011 by the 82nd Legislature in its regular session,
as part of Senate Bill 1511. Senate Bill 1511 focused on crimes against children
and particularly the abduction of children who are then taken elsewhere,
19
including other states and abroad. See House Comm. on Criminal
Jurisprudence, Bill Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011). Much like
the adoption of section 1.04 of the penal code, SB 1511 was intended to “fill
gaps” and cure “an ambiguity or loophole” in interpreting the missing child
statutes in place in 2011. See id.; Senate Comm. on Jurisprudence, Bill
Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011). And through the enactment of
various statutes included in Senate Bill 1511—and article 13.075 in particular—
the Texas legislature expressed its desire to acquire extraterritorial jurisdiction in
circumstances just like this one.20 Bowman, 260 U.S. at 97–98.
Reading all statutes together, and keeping the underlying purpose of the
penal code and code of criminal procedure in mind, we conclude that the State of
Texas has demonstrated its desire to prosecute individuals who would come into
this state and prey upon children through threats, kidnapping, and transporting
them across international borders in order to sexually assault them. See Torres
v. State, 141 S.W.3d 645, 656 (Tex. App.—El Paso, 2004). To allow an
individual to escape such prosecution simply by walking across the border to
commit the actual crime would create just the sort of jurisdictional gap that the
Texas legislature has expressly tried to avoid. See Seth S. Pearcy, III & James
R. Patterson, V.A.P.C., § 1.04, Practice Commentary, Vol. 1, p. 18 (1974); Tex.
20
The intent that article 13.075 have international jurisdictional implications,
rather than merely a venue application, is evident from the text of the bill as
originally introduced, which would have allowed prosecution in the county “to
which the defendant is extradited.” See Tex. H.B. 3177, 82d Leg., R.S. (2011).
20
Code Crim. Proc. art. 13.075 (West 2015); House Comm. on Criminal
Jurisprudence, Bill Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011); Senate
Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 1551, 82d Leg., R.S. (2011).
For these reasons, Texas may assert extraterritorial jurisdiction over Cox to
prosecute him for the sexual assault of Zoe in Mexico. We overrule Cox’s
second point.
C. Jury Instruction Regarding Territorial Jurisdiction
In his third point of error, Cox argues that the trial court erred in refusing to
give a jury instruction on the issue of territorial jurisdiction.
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). If error occurred, whether it was preserved determines
the degree of harm required for reversal. Id.
Initially, the trial court included an instruction regarding section 1.04(a)(1)
of the penal code which read as follows:
You are instructed that this state has jurisdiction over an offense that
a person commits by his own conduct, [if] either the conduct or result
that is an element of the offense occurs inside this state.
The trial court subsequently removed that instruction upon sustaining the State’s
objection thereto.21
21
The State objected on the basis that territorial jurisdiction is not a
defensive issue and that it is an issue for the trial court to decide, not the jury.
21
The legislature has not addressed this issue, and there is a dearth of case
law addressing whether this is an issue to be decided by the judge or the jury.
See George E. Dix & John M. Schmolesky, 40 Tex. Prac. Series, Criminal
Practice And Procedure § 4:12 (3d ed.). Well established, however, is that “a
defense which is not recognized by the Legislature as either a defense or as an
affirmative defense does not warrant a separate instruction.” Giesberg v. State,
984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (citing Sanders v. State, 707
S.W.2d 78, 80–81 (Tex. Crim. App. 1986), abrogated on other grounds by Willis
v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990)), cert. denied, 525 U.S.
1147 (1999). The Legislature has not recognized territorial jurisdiction as a
defensive issue, and the court of criminal appeals has not specifically authorized
a jury instruction such as the one Cox requested.22 To the contrary, the court of
criminal appeals has held that “jurisdiction is not an element of an offense.”
Calton v. State, 176 S.W.3d 231, 234–35 (Tex. Crim. App. 2005) (citing State v.
Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998) (“The concept of element of
an offense does not include every issue to which the State has the burden of
22
Other states have relied upon this reasoning to hold that defendants are
not entitled to a jury instruction on territorial jurisdiction. See, e.g., State v.
Beverly, 618 A.2d 1335, 1338 (Conn. 1993) (“[W]e agree with the decisions
holding that the question of where a murder occurred generally is not an element
of the offense”); People v. Gayheart, 776 N.W.2d 330, 339 n.5 (Mich. Ct. App.
2009) (“We think the better rule is not to treat territorial jurisdiction as an
essential element of the crime because Michigan has no statute expressly
defining territorial jurisdiction as an essential element of a criminal offense.”).
22
proof; it does not include, for example, venue or jurisdiction.” (internal citation
omitted))).23
Some states have held that the issue of territorial jurisdiction is a matter of
law for the court to decide, not the jury. See Beverly, 618 A.2d at 1338 (holding
the question of territorial jurisdiction is to be decided by the court, as a
defendant’s right to a jury does not extend beyond the factual issues that are
relevant to the ultimate question of guilt or innocence under the relevant statute);
Mitchell v. United States, 569 A.2d 177, 180 (D.C.) (holding that the question of
where an offense took place is “not one of fact for the jury”), cert. denied, 498
U.S. 986 (1990); State v. Pugh, 12 So. 3d 1085, 1088 (La. Ct. App. 2009) (“A
judge alone must decide the issue of territorial jurisdiction, but only if that issue is
brought before the court before trial”); State v. Aguilar, 736 P.2d 620, 621 (Or. Ct.
App. 1987) (“[T]he determination of jurisdiction is a matter of law for the court to
decide”). In so holding, the Supreme Court of California observed:
Treating jurisdiction as a threshold matter that should be challenged
prior to trial affords substantial procedural safeguards for the
defendant and serves the interests of judicial efficiency and
economy. If only a jury could determine subject matter jurisdiction, a
defendant would always be put through the expense, anxiety, and
23
Cox points to Doyle v. State, 631 S.W.2d 732, 738 (Tex. Crim. App.
1982) (op. on reh’g), in which the court of criminal appeals concluded that the
trial court’s failure to include a culpable mental state in the application paragraph
of the jury charge was reversible error because it eliminated an essential element
of the charged crime. But Cox’s reliance on Doyle is misplaced in light of the
court’s subsequent holding that jurisdiction is not an element of an offense.
Calton, 176 S.W.3d at 234–35.
23
uncertainty of a trial and the only mechanism to challenge
jurisdiction would be an appeal after the conclusion of trial. . . . By
contrast, if the issue can be resolved by the court before trial, the
defendant will have the opportunity to seek immediate review
through a writ proceeding.
People v. Betts, 103 P.3d 883, 890 (Cal.), cert. denied, 545 U.S. 1133 (2005).
Many other states have determined that a jury instruction on territorial
jurisdiction is warranted only where the factual basis for such jurisdiction is
challenged by the defendant. For instance, the court of appeals of North
Carolina has stated,
[W]hen a defendant‘s challenge is not to the factual basis for
jurisdiction but rather to the theory of jurisdiction relied upon by the
State, the trial court is not required to give these instructions since
the issue regarding whether the theory supports jurisdiction is a legal
question for the court.
State v. Lalinde, 750 S.E.2d 868, 871 (N.C. Ct. App. 2013) (emphasis added)
(internal quotations omitted); see also State v. Willoughby, 892 P.2d 1319, 1327
(Ariz. 1995) (“In the very rare case in which jurisdiction is legitimately in issue
because of contradicting jurisdictional facts, Arizona’s territorial jurisdiction must
be established beyond a reasonable doubt by the jury.”), cert. denied, 516 U.S.
1054 (1996); People v. Cullen, 695 P.2d 750, 751–52 (Colo. App. 1984) (holding
that issue of jurisdiction must be submitted to the jury where it depends upon a
resolution of disputed facts); Lane v. State, 388 So. 2d 1022, 1028 (Fla. 1980)
(same); McKinney v. Indiana, 553 N.E.2d 860, 863–64 (Ind. Ct. App. 1990)
(same); State v. Liggins, 524 N.W.2d 181, 184 (Iowa 1994) (same); State v.
Denofa, 898 A.2d 523, 533 (N.J. 2006) (same); People v. McLaughlin, 606
24
N.E.2d 1357, 1359–60 (N.Y. 1992) (same); Commonwealth v. Bighum, 307 A.2d
255, 258 (Pa. 1973) (same); State v. Beall, 729 S.W.2d 270, 271 (Tenn. Crim.
App. 1986) (same).
With regard to jurisdiction in civil cases, in Texas the issue of whether a
court has subject matter jurisdiction is generally a question of law, although the
supreme court has acknowledged that “in some cases, disputed evidence of
jurisdictional facts that also implicate the merits of the case may require
resolution by the finder of fact.” Tex. Dep’t of Parks and Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004) (citing Tex. Natural Res. Conservation Comm’n v.
IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002)). Here, however, we need not decide
whether territorial jurisdiction is an issue that should be submitted to the jury
because the facts underlying a jurisdictional determination in this case are not
disputed. The parties do not dispute that the two sexual assaults that Zoe
described did not occur in Texas. The facts related to the transport of Zoe from
Fort Worth to Mexico are likewise largely undisputed. To the extent that a factual
dispute existed as to whether Cox restrained Zoe so as to substantially interfere
with her liberty, this question was submitted to and answered by the jury, and we
have already addressed this in response to Cox’s first point.
Because there was no issue of fact to be determined by the jury pertaining
to the trial court’s jurisdiction, and because the legislature has not recognized
territorial jurisdiction as a defense or an affirmative defense warranting
submission to the jury, we hold that the trial court did not err in declining to
25
instruct the jury as to the issue of jurisdiction. We therefore overrule Cox’s third
point.
D. Tarrant County as the proper venue
In his fourth and fifth points, Cox argues that Tarrant County was not
proven to be the proper venue for prosecution of the offenses of kidnapping and
sexual assault, as alleged in counts one and two of the indictment. Count one
alleged that Cox abducted Zoe and count two24 alleged that Cox, “in the county
of Tarrant,” caused the penetration of Zoe’s mouth with his sexual organ.
Venue must be proven “by the preponderance of the evidence that by
reason of the facts in the case, the county where such prosecution is carried on
has venue.” Tex. Code Crim. Proc. Ann. art. 13.17 (West 2015). “Proof of venue
may be established by direct or circumstantial evidence, and the jury may draw
reasonable inferences from the evidence.” Thompson v. State, 244 S.W.3d 357,
362 (Tex. App.—Tyler 2006, pet. dism’d).
In addressing Cox’s first issue, we have held that there is sufficient
evidence to support the jury’s finding that Cox abducted Zoe in Tarrant County
and took her to Mexico. The jury was presented evidence that after contacting
Zoe on a social messaging application, Cox traveled to Fort Worth, met her at
her middle school, directed her not to speak and to pretend to be his little sister,
and took her to the Fort Worth bus station where they caught a bus to El Paso.
24
The original indictment contained a different count two that was later
waived. The count two referred to herein is the renumbered count two.
26
This evidence is sufficient to establish proper venue in Tarrant County with
regard to the charge of kidnapping. We therefore overrule Cox’s fourth point.
As for count two, the allegation of sexual assault, the code of criminal
procedure specifically states that “[s]exual assault may be prosecuted . . . in the
county where the victim is abducted.” Tex. Code Crim. Proc. Ann. art. 13.15
(West 2015). As such, venue in Tarrant County was proper because Zoe was
abducted in Tarrant County. See, e.g., Wangare v. State, No. 07-14-00176-CR,
2015 WL 128567, at *1 (Tex. App.—Amarillo Jan. 7, 2015, pet. ref’d) (mem. op.,
not designated for publication) (holding that Tarrant County was proper venue
over aggravated sexual assault trial where victim was abducted in Tarrant
County); Maxwell v. State, Nos. 02-12-00072-CR, 02-12-00073-CR, 02-12-
00074-CR, 2013 WL 6729943, at *3 (Tex. App.—Fort Worth Dec. 19, 2013, no
pet.) (mem. op., not designated for publication) (holding that Parker County was
proper venue of aggravated sexual assault trial where victim had been abducted
in Parker County). We therefore overrule Cox’s fifth point.
Conclusion
Having overruled each of Cox’s five points, we affirm the judgment of the
trial court.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
27
DAUPHINOT, J., filed a concurring opinion.
PUBLISH
DELIVERED: May 12, 2016
28