Richard Francis Rodrigues v. State ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00414-CR
__________________
RICHARD FRANCIS RODRIGUES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Cause No. 19-339023
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MEMORANDUM OPINION
Appellant Richard Francis Rodrigues appeals his conviction for prostitution.
In two issues, Rodrigues argues that the evidence is insufficient to support his
conviction due to a variance between the information and the proof at trial and that
the prosecutor’s improper closing argument requires reversal. We affirm the trial
court’s judgment.
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THE EVIDENCE
The State charged Rodrigues with prostitution, alleging that Rodrigues “for a
fee, did knowingly offer or agree to engage in sexual conduct with [an undercover
officer.]” The undercover officer, a sergeant of the Organized Crime Unit for the
Montgomery County Sheriff’s Office, testified that she works undercover while
conducting proactive investigations regarding prostitution. The undercover officer
testified that on February 12, 2019, she was working at a hotel when she posted an
online ad in which she stated that she was willing to engage in sexual activity, and
the ad included partially nude pictures of females in explicit poses. The undercover
officer explained that she engaged in a text conversation with Rodrigues, and the
text conversation was admitted into evidence. The undercover officer testified that
Rodrigues started the conversation by asking if she would be available that day and
what her “donation” would be for an hour. According to the undercover officer’s
training and experience, the use of the word “donation” in prostitution cases refers
to the rate, and the term is used to “skirt the law or try to say it was just a donation[.]”
The undercover officer testified that she responded with an amount, and Rodrigues
texted that he could see her around 4:00 and that he hoped she was not a cop. The
undercover officer explained that after she told Rodrigues she was not a cop, he
asked for the address.
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The undercover officer testified that she directed Rodrigues to a hotel room
that was set up with video and audio surveillance, and the video of Rodrigues’s arrest
was admitted into evidence. The undercover officer explained that Rodrigues came
into the hotel room and told her that he wanted an hour of her time, and Rodrigues
stated that he wanted “everything.” According to the undercover officer, normally
when a person wants “everything, it means sex and a blow job.” The undercover
officer testified that Rodrigues indicated that he wanted to have normal sex and a
blow job, and Rodrigues laid the money down on the table and said, “[t]his is for
you.” The undercover officer explained that based on her training and experience,
the totality of the text messages and the conversation that she had with Rodrigues in
the room, and Rodrigues showing her the money she requested, she knew that
Rodrigues was offering her money for sex and a blow job.
Rodrigues testified that after having a bad day at work, he called a colleague
because he needed someone to talk to, and the colleague gave him the link to a
website with personal ads. According to Rodrigues, he only wanted to have a
conversation and never intended to engage in sexual relations. Rodrigues explained
that the donation was “money for her time[]” just to talk and not for sex acts.
Rodrigues testified that he asked if the woman was a cop because he just wanted to
talk to a normal person and “didn’t want any trouble[.]” According to Rodrigues, he
was not interested in sex and did not commit the offense, but the undercover officer
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was “very pushy[]” and made him say the things that she wanted to hear. Rodrigues
admitted telling the undercover officer that he wanted sex and agreeing to a blow
job, but he claimed that he just played along because he was worried that she would
ask him to leave without having a chance to talk. Rodrigues also testified that he
never told the undercover officer that he just wanted to talk. The jury found
Rodrigues guilty of prostitution as charged in the information. The trial court
assessed punishment at two days in county jail and also assessed a $1500 fine.
ANALYSIS
In issue one, Rodrigues argues that the evidence is insufficient to support his
conviction because there is a fatal variance between the language in the information
and the evidence presented at trial. According to Rodrigues, the information alleged
an offense under section 43.02(a) of the Texas Penal Code, but the evidence
established an offense under section 43.02(b). See Tex. Penal Code Ann. § 43.02(a),
(b). The State argues that Rodrigues waived any complaint about a defect in the
amended information and that the evidence is legally sufficient because it supports
at least one manner of committing prostitution as alleged in the amended
information.
Under a legal sufficiency standard, we assess all the evidence in the light most
favorable to the prosecution to determine whether any rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
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443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). We give deference to the jury’s responsibility to fairly resolve conflicting
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Hooper, 214 S.W.3d at 13. The sufficiency of the evidence should
be measured by the elements of the offense as defined by a hypothetically correct
jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). A hypothetically correct jury charge accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State’s burden of proof or
restrict its theories of liability, and adequately describes the offense for which the
defendant was tried. Id.If the penal offense sets out various statutory alternatives for the distinct
elements of the crime, the sufficiency of the evidence is measured by the specific
alternative elements that the State has alleged in the information. See Cada v. State,
334 S.W.3d 766, 773-74 (Tex. Crim. App. 2011). When a jury returns a general
verdict on an information charging alternative methods of committing the same
offense, the verdict stands “if the evidence is sufficient to support a finding under
any of the theories submitted.” Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.
App. 1991).
A variance occurs when there is a discrepancy between the allegations in the
indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex.
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Crim. App. 2011). In conducting an evidentiary-sufficiency analysis, we consider
two types of variances: material and immaterial. Thomas v. State, 444 S.W.3d 4, 9
(Tex. Crim. App. 2014). Because immaterial variances do not affect the validity of
a criminal prosecution, a hypothetically correct jury charge need not incorporate
allegations that give rise to only immaterial variances. Id. A variance is fatal when
it is a material variance that prejudices the substantial rights of the defendant.
Gollihar v. State, 46 S.W.3d 243, 247-48 (Tex. Crim. App. 2001). In determining
whether a variance is material, we examine whether the indictment informed the
defendant of the charge against him sufficiently to allow him to prepare an adequate
defense at trial and whether the indictment would subject him to the risk of being
prosecuted later for the same crime. See Gollihar, 46 S.W.3d at 258. When arguing
variance, the burden of demonstrating surprise or prejudice rests with the defendant.
Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
A person commits the offense of prostitution if he knowingly offers or agrees
to receive a fee from another to engage in sexual conduct. Tex. Penal Code Ann. §
43.02(a). Under section 43.02(b), a person commits the offense if the person
knowingly offers or agrees to pay a fee to another person for the purpose of engaging
in sexual conduct with that person or another. Id. § 43.02(b). The State initially
charged Rodrigues by information with prostitution, alleging that Rodrigues “did
then and there knowingly solicit [the undercover officer], in a public place . . . to
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engage with the defendant in sexual conduct, to-wit: sexual intercourse or sexual
contact, for hire.[]” After the trial court granted the State’s motion to amend the
information, the State amended the information and alleged that Rodrigues, “for a
fee, did knowingly offer or agree to engage in sexual conduct with [the undercover
officer.]”
There are two alternative means for committing prostitution: offering to
receive money to engage in sexual conduct or offering to pay money to engage in
sexual conduct. See Tex. Penal Code Ann. § 43.02(a), (b). Although the amended
information did not specify in which manner Rodrigues committed prostitution, the
language in the amended information charges Rodrigues with both alternatives. The
jury charge instructed that a person commits the offense of prostitution if the person
knowingly agrees to engage in sexual conduct for a fee, and the charge defined “fee”
as “the payment or offer of payment in the form of money, goods, services, or other
benefit.” The jury charge instructed the jury that if it found from the evidence beyond
a reasonable doubt that Rodrigues “did knowingly offer or agree to engage in sexual
conduct, namely sexual intercourse or deviate sexual intercourse, with [the
undercover officer] for a fee, you will find [Rodrigues] guilty of the offense of
Prostitution, as charged.”
Viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational jury could have found Rodrigues guilty of prostitution
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beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at
13. We also conclude that there is no material variance between the statutory
allegations in the amended information and the proof at trial. See Byrd, 336 S.W.3d
at 246. Additionally, even assuming that there was a variance, we conclude that any
alleged variance was not prejudicial to Rodrigues’s substantial rights and was,
therefore, immaterial, because Rodrigues does not contend that the amended
information led to an inability to defend against the charge or indicate how the
alleged variance could subject him to the risk of being prosecuted for the same
offense. See Gollihar, 46 S.W.3d at 247-48. We conclude that the evidence is legally
sufficient to support the verdict. We overrule issue one.
In issue two, Rodrigues complains that the prosecutor’s improper closing
argument requires reversal. The State argues that the trial court’s curative instruction
to disregard was sufficient to cure any prejudice from the first of the prosecutor’s
two allegedly improper arguments, and that the second challenged argument
regarding an entrapment instruction was proper.
We review the trial court’s ruling on an objection to allegedly improper jury
argument for an abuse of discretion. See Garcia v. State, 126 S.W.3d 921, 924 (Tex.
Crim. App. 2004). “[P]roper jury argument generally falls within one of four general
areas: (1) summation of the evidence; (2) reasonable deduction from the evidence;
(3) answer to argument of opposing counsel; and (4) plea for law enforcement.”
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Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). “To constitute
reversible error, the argument must be manifestly improper or inject new, harmful
facts into the case.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000).
If a trial court sustains an objection to improper jury argument, to preserve
error on appeal, the complaining party must additionally request an instruction to
disregard an offending argument if such an instruction could cure the prejudice. See
McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice
arising from an erroneous jury argument is incurable, the complaining party must
move for a mistrial. Id. We review the trial court’s denial of a motion for mistrial for
an abuse of discretion, viewing the evidence in the light most favorable to the trial
court’s ruling, and considering only those arguments before the trial court at the time
of the ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We must
uphold the ruling if it was within the zone of reasonable disagreement. Id. In
evaluating whether a trial court abused its discretion by denying a defendant’s
request for a mistrial based on improper jury argument, appellate courts must
balance several factors, including “(1) the severity of the misconduct (the magnitude
of the prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to
cure the misconduct (the efficacy of any cautionary instruction by the judge), and
(3) the certainty of conviction absent the misconduct (the strength of the evidence
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supporting the conviction).” Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.
2011).
A mistrial is the appropriate remedy when the objected-to events are so
emotionally inflammatory that curative instructions are not likely to prevent the jury
from being unfairly prejudiced against the defendant. Young v. State, 137 S.W.3d
65, 71 (Tex. Crim. App. 2004). A mistrial is required only in extreme circumstances
when the prejudice is incurable because it “is of such character as to suggest the
impossibility of withdrawing the impression produced on the minds of the jurors.”
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Because a mistrial is an
extreme remedy, “a mistrial should be granted ‘only when residual prejudice
remains’ after less drastic alternatives are explored.” Ocon, 284 S.W.3d at 884-85(quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005)).
The record shows that during closing argument, the prosecutor argued that
the “entrapment defense would not be in your charge if this Court did not believe
that he’s confessed to that.” Rodrigues objected to the argument as being a
misstatement of the law, and the trial court sustained Rodrigues’s objection. The trial
court also instructed the jury to disregard the prosecutor’s last statement but denied
Rodrigues’s motion for mistrial. The trial court’s instruction suggests that the trial
court believed the prosecutor’s argument was improper but that the prejudicial effect
of the argument could be cured.
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We presume the jury followed the court’s instruction to disregard the
complained-of argument. See id.; Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.
App. 2005); Ladd, 3 S.W.3d at 567 (concluding that trial court did not abuse its
discretion because it could have reasonably concluded that its instruction to
disregard was sufficient to cure any harm). Here, the prejudicial effect of the
prosecutor’s argument did not likely cause the jury to ignore the trial court’s
instruction. See Archie, 340 S.W.3d at 739. Moreover, the evidence showing that
Rodrigues committed the offense was strong. See id. Having considered the entire
record, we conclude that the trial court’s denial of the motion for mistrial did not
constitute an abuse of discretion. See id.; Ocon, 284 S.W.3d at 884.
Rodrigues also complains that the trial court abused its discretion by
overruling his objection to the prosecutor’s alleged improper statement regarding the
law on inclusion of the entrapment defense. During closing, the prosecutor argued
that “[t]he law is very clear that if a defendant denies committing the offense, that
he does not get the charge in . . . . You heard him on the stand admit to it.” Rodrigues
objected that the prosecutor’s statement was a misstatement of the law, and the trial
court overruled the objection. The trial court also denied Rodrigues’s request for a
mistrial. On appeal, Rodrigues argues that he never confessed, and it was not a
reasonable deduction from the evidence for the prosecutor to argue that he had.
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If the defendant denies that he committed the offense, he will not be entitled
to an entrapment instruction. Melton v. State, 713 S.W.2d 107, 112 (Tex. Crim. App.
1986). While the defendant is not required to plead guilty, he cannot introduce
positive evidence that he did not commit the act, because entrapment assumes that
the offense was committed. Barnes v. State, 70 S.W.3d 294, 306 (Tex. App.—Fort
Worth 2002, pet. ref’d). Rodrigues was required to admit to committing the charged
offense before he could assert the defense of entrapment, but such an admission is
no more than an admission that the event occurred and does not rise to the level of a
plea of guilty. See Collins v. State, 672 S.W.2d 588, 594 (Tex. App.—Fort Worth
1984, no pet.). The record shows that the trial court granted Rodrigues’s request for
an instruction on the entrapment defense, because based on Rodrigues’s testimony,
the trial court found that Rodrigues admitted the offense. See also Garrett v. State,
639 S.W.2d 18, 22 (Tex. App.—Fort Worth 1982) aff’d on other grounds, 658
S.W.2d 592 (Tex. Crim. App. 1983) (noting appellant’s implied admission of guilt
by his stipulation of the entrapment defense).
Proper closing argument includes correct legal arguments. Vasquez v. State,
484 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We conclude
that the prosecutor’s argument was permissible because it was not a misstatement of
the law to argue that Rodrigues admitted that he committed the offense and that if a
defendant denies committing the offense, he is not entitled to an entrapment
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instruction. See Melton, 713 S.W.2d at 112. Additionally, even if the trial court erred
by overruling Rodrigues’s objection, Rodrigues has not demonstrated that the error
affected his substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998). “A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s
verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). On this record,
we cannot conclude that the complained-of argument had a substantial and injurious
effect or influence upon the jury in determining its verdict. See id. Accordingly, we
overrule issue two. Having overruled each of Rodrigues’s issues, we affirm the trial
court’s judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on February 18, 2021
Opinion Delivered April 14, 2021
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
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